Canada ( Attorney General ) v. Rogerville
T-2141-94
Heald D.J.
19/7/96
15 pp.
Judicial review of PSC Appeal Board's decision Deputy Head's decision to release respondent from position for incompetence should not be acted upon-Respondent employed as psychologist at maximum security federal penitentiary-Performance reports consistently indicating work fully satisfactory or superior-Respondent writing psychological reports instrumental in securing early release of inmate who murdered a police officer while on parole-Treated, prepared psychological report to NPB on another convict who committed murder while on day parole-After reviewing report of independent psychologists, inviting comments from respondent, Warden concluding incompetent, recommending release-Board allowing appeal on ground Department failed to give respondent prior notice performance unsatisfactory and would be released if performance not improving-Application allowed-Although high degree of deference accorded Appeal Board in relation to questions of fact, only some degree of deference accorded with respect to questions of law as interpretation of legislation not within expertise of Appeal Board, no statutory right of appeal of Appeal Board's decision which would allow Court to substitute its opinion for that of Appeal Board, no privative clause insulating Appeal Board's decision from review-Interpretation, application of case law concerning Public Service Employment Act, s. 31 at issue-According to Dansereau v. Canada (Public Service Appeal Board), [1991] 1 F.C. 444 (C.A.) presumption of competence if employee performing same duties for several years, consistently receiving satisfactory performance reports, not subject of any serious criticism by employer-Where such presumption exists, absent unusual or urgent circumstances, employer cannot dismiss employee for incompetence without giving warning reciting mistakes made, providing opportunity to correct them, indicating risk of dismissal if not corrected-Despite finding respondent posing danger to inmates, public, Appeal Board finding no unusual or urgent circumstances to disentitle respondent to warning because (a) respondent could have been monitored by superiors or colleagues during notice period; (b) NPB could have been warned to be cautious with his reports-Finding not supported by evidence indicating superiors not qualified to monitor respondent's psychological services during notice period, insufficient resources to provide colleague to monitor respondent's work-Also evidence indicating some NPB members having no training in psychology, respondent's psychological reports given significant weight by NPB-NPB should be provided with sound psychological report prepared in competent manner by reliable psychologist-Because Board's findings concerning monitoring constituting erroneous finding of fact, finding absence of urgent circumstances unfounded-Appeal Board's finding no unusual or urgent circumstances gross error made without regard to totality of material before it, i.e. reviewable error-Matter referred back to Appeal Board with direction respondent's appeal be dismissed-Public Service Employment Act, R.S.C., 1985, c. P-33, s. 31.