Kampman v. Canada (Treasury Board), (1994) 83 F.T.R. 289 (TD)

• Judge: Strayer, J.
• Court: Federal Court (Canada)
• Case Date: September 15, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 83 F.T.R. 289 (TD)

Kampman v. Can. (1994), 83 F.T.R. 289 (TD)

MLB headnote and full text

Lily Kampman (applicant) v. Treasury Board (Correctional Services of Canada)(respondent)

(T-2120-93)

Indexed As: Kampman v. Canada (Treasury Board)

Federal Court of Canada

Trial Division

Strayer, J.

September 15, 1994.

Summary:

Kampman was appointed as Registered Nurse at Kent Institution, a maximum security penitentiary. Thirteen months later, the Deputy Commissioner (Pacific Region) of Correctional Service of Canada removed her security clearance (i.e., Enhanced Reliability Status) because of a major breach of the Code of Discipline. The Deputy Commissioner also recommended that Kampman be released from the public service on the ground that her loss of her Enhanced Reliability Status rendered her incapable of performing the duties of her position. Kampman appealed the recommendation to release her to the Public Service Commission Appeal Board. The Board dismissed the appeal. Kampman applied for judicial review to quash the Board's decision.

The Federal Court of Canada, Trial Division, allowed the application and remitted the matter to the Board.

Administrative Law - Topic 222

The hearing and decision - Right to be heard - When available - Kampman, a nurse at a penitentiary, breached the Code of Discipline by having a relationship with a paroled inmate - Without granting a hearing, the Deputy Commissioner revoked her security clearance and recommended her dismissal - Kampman appealed the recommendation on the ground that, inter alia, the Deputy Commissioner failed to give her a hearing - The Board, in dismissing the appeal, ruled that since the information upon which the decision was based was correct, it was unnecessary to consider the propriety of the procedure - Kampman applied for judicial review - The Federal Court of Canada, Trial Division, quashed the decision and remitted the matter to the Board for a determination of whether Kampman was granted a fair hearing - See paragraph 23.

Administrative Law - Topic 2272

Natural justice - The duty of fairness - Circumstances or powers to which duty applies - [See Administrative Law - Topic 222 ].

Labour Law - Topic 9156

Public service labour relations - Discipline and dismissal of civil or public servants - Dismissal - What constitutes cause for, incompetence or incapacity - Kampman, a nurse at a penitentiary, breached the Code of Discipline - The Deputy Commissioner revoked her security clearance and recommended her dismissal on the ground the loss of the clearance meant she was incapable of doing her job - Kampman appealed the decision - The Crown submitted that an appeal regarding "incapacity" to perform a job was not possible when it involved the loss of security clearance which resulted from the employee's own action - The Public Service Commission Appeal Board dismissed the appeal - Kampman applied for judicial review - The Federal Court of Canada, Trial Division, held that incapacity could arise from the loss of security clearance - See paragraphs 10 to 17.

Labour Law - Topic 9160

Public service labour relations - Discipline and dismissal of civil or public servants - Dismissal - Procedure - Natural justice - [See Administrative Law - Topic 222 ].

Labour Law - Topic 9162.1

Public service labour relations - Discipline and dismissal of civil or public servants - Dismissal - Warnings - Kampman, a nurse at a penitentiary for 13 months, breached the Code of Discipline by having a relationship with a paroled inmate - Without granting a hearing, the Deputy Commissioner revoked her security clearance and recommended her dismissal - Kampman appealed the decision on the ground that, inter alia, the Deputy Commissioner failed to give her a warning and/or refer her for counselling - The Public Service Commission Appeal Board dismissed the appeal - Kampman applied for judicial review - The Federal Court of Canada, Trial Division, held that in unusual or urgent circumstances, there was no duty to warn - See paragraph 25.

Labour Law - Topic 9355

Public service labour relations - Judicial review - Decisions of adjudicators or grievance appeal boards - Error - Failure to consider a relevant factor - [See Administrative Law - Topic 222 ].

Words and Phrases

Incapacity - The Federal Court of Canada, Trial Division, considered the meaning of the word "incapacity" as employed in s. 31(1) of the Public Service Employment Act - See paragraphs 10 to 17.

Cases Noticed:

Lee v. Canada (Attorney General), [1981] 2 S.C.R. 90; 38 N.R. 346; 126 D.L.R.(3d) 1, refd to. [para. 16].

Ahmad v. Public Service Commission Appeal Board, [1974] 2 F.C. 644; 6 N.R. 287 (F.C.A.), consd. [para. 19].

Thomson v. Canada (Minister of Agriculture), [1992] 1 S.C.R. 385; 133 N.R. 345; 89 D.L.R.(4th) 218, appld. [para. 22, footnote 12].

Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; 30 N.R. 119; 106 D.L.R.(3d) 385; 13 C.R.(3d) 1; 50 C.C.C.(2d) 353, refd to. [para. 23, footnote 13].

Cardinal and Oswald v. Kent Institution, Director of, [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 23, footnote 13].

Dansereau v. Public Service Appeal Board (Can.), [1991] 1 F.C. 444; 122 N.R. 122 (F.C.A.), dist. [para. 25].

Dansereau v. Saint-Hilaire - see Dansereau v. Public Service Appeal Board.

Clare v. Canada (Attorney General), [1993] 1 F.C. 641; 149 N.R. 303; 100 D.L.R.(4th) 400 (F.C.A.), dist. [para. 25].

Statutes Noticed:

Correctional Service of Canada, Commissioner's Directive 060 (January 1, 1987), sect. 19(e) [para. 4].

Public Service Employment Act, R.S.C. 1985, c. P-33, sect. 31(1) [para. 6]; sect. 31(2) [para. 1].

Authors and Works Noticed:

Treasury Board Manual, Security-Personnel Screening Standards (November 1, 1990), p. 33 [para. 2].

Counsel:

Sean T. McGee, for the applicant;

Mylène Bouzigon, for the respondent.

Solicitors of Record:

Nelligan Power, Ottawa, Ontario, for the applicant;

John C. Tait, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard in Ottawa, Ontario, before Strayer, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on September 15, 1994.