Judgments

[1995] 1 F.C. 306

T-2120-93

Lily Kampman (Applicant)

v.

Treasury Board (Correctional Services of Canada) (Respondent)

Indexed as: Kampman v. Canada (Treasury Board) (T.D.)

Trial Division, Strayer J.—Ottawa, June 15 and September 15, 1994.

Public Service — Termination of employment — Registered Nurse at federal penitentiary contravened Code of Discipline — Released as loss of enhanced reliability status made her incapable of performing duties of position — When hearing PSEA, s. 31(2) appeal from dismissal recommendation by deputy head, Appeal Board can review decision to revoke status as part of review of recommendation — In revoking enhanced reliability status, deputy head must comply with principles of procedural fairness — No requirement to give warning and opportunity to correct conduct before status revoked as applicant not long-term employee, circumstances urgent such that continued presence at institution intolerable.

Penitentiaries — Registered Nurse at federal penitentiary socializing with ex-convict on parole and failing to report matter to superiors, thereby committing major infraction against Code of Discipline — Enhanced reliability status revoked, released as incapable of performing duties of position — “Incapacity” within PSEA, s. 31(1) can arise from loss of enhanced reliability status when status condition of employment — Within deputy head’s discretion to decide could no longer trust employee — In unusual circumstances, no requirement to give warning and opportunity to correct conduct before status revoked — Employee entitled to procedural fairness when deputy head considering revocation of status.

The applicant, a Registered Nurse at Kent Institution, occupied a position with a security requirement of “enhanced reliability.” One year after her appointment, she had social contact with an ex-convict out on parole and participated in the admission process when he was returned to Kent after being charged with new offences. She failed to report her contacts with the offender to her superiors. This constituted a major infraction of the Correctional Service’s Code of Discipline. The Deputy Commissioner (Pacific), Correctional Service of Canada, without any prior notice to her, advised applicant that he was removing her enhanced reliability status and that he was therefore obliged to recommend her release as incapable of performing the duties of her position. The PSC Appeal Board dismissed the applicant’s appeal against that recommendation.

This was an application for judicial review to set aside the Appeal Board’s decision. The issues were as follows: (1) Can incapacity within the meaning of subsection 31(1) of the Public Service Employment Act (PSEA) arise from the fact that an employee has lost her enhanced reliability status when this is a condition of employment? (2) If yes, can an Appeal Board hearing an appeal under subsection 31(2) from a recommendation by the deputy head that the employee be dismissed review the decision to revoke this status as part of the review of that recommendation? (3) If yes, what standard should be applied by the Appeal Board in reviewing the revocation? (4) Should the employee be warned and given an opportunity to correct her conduct before status is revoked?

Held, the application should be dismissed except that the matter should be returned to the Board for reconsideration with respect to the Board’s failure to consider properly the procedure followed by the deputy head in revoking the applicant’s enhanced reliability status.

(1) The possession of enhanced reliability status, if the job description requires it, is a qualification like any other and the loss of that status renders a person incapable of performing her work at least in circumstances such as the present. It does not matter whether the disqualification flows from factors within or beyond the will of the individual.

(2) It flows from the words of the statute that the Appeal Board can review the decision taken by the deputy head, as part of his decision to recommend dismissal, that the employee is incapable because in his view she is no longer entitled to enhanced reliability status.

(3) The deputy head’s decision that an employee is incapable of performing her duties and should be released is largely a discretionary one. Applying the decision of the Federal Court of Appeal in Ahmad v. Public Service Commission, the Appeal Board can review the decision on matters of law, on the issue of good faith, and on the facts with the criterion being correctness. None of those grounds for review were present in this case. Since the Ahmad decision, the Supreme Court of Canada in Thomson v. Canada has held that “the Deputy Minister was under a duty to comply with the principles of procedural fairness in the context of security clearance decision-making.” This means that “a party must have an adequate opportunity of knowing the case that must be met, of answering it and putting forward the party’s position.” If this is required in matters involving state security and matters of urgency, then a fortiori it should be required in the making of a decision concerning ordinary reliability. The applicant was not interviewed or consulted prior to the decision by the Deputy Commissioner to revoke her enhanced reliability status. The Appeal Board erred in law in finding that since the relevant “information” was not in dispute, the procedure followed by the deputy head did not matter. Whether the ultimate decision was right or wrong, it can be set aside as invalid if there has been a denial of fairness. It was an error of law to fail to review the procedure followed by the deputy head and the matter should be referred back to the Appeal Board for consideration on that aspect.

(4) There are cases where the Federal Court of Appeal has found that long-term employees, in the absence of unusual or urgent circumstances, are entitled to a warning prior to dismissal and to be given an opportunity of correcting their mistakes. However, the applicant had worked at Kent for only thirteen months before the events which led to her dismissal. Furthermore, it was open to the Appeal Board to conclude that these were unusual or urgent circumstances where the deputy head in the exercise of his discretion formed the opinion that he could no longer tolerate the presence of this employee in the institution.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Public Service Employment Act, R.S.C., 1985, c. P-33, s. 31(1),(2).

CASES JUDICIALLY CONSIDERED

APPLIED:

Ahmad v. Public Service Commission, [1974] 2 F.C. 644; (1974), 51 D.L.R. (3d) 470; 6 N.R. 287 (C.A.); Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; (1992), 89 D.L.R. (4th) 218; 3 Admin. L.R. (2d) 242; 133 N.R. 345; Lee v. Attorney General of Canada, [1981] 2 S.C.R. 90; (1981), 236 D.L.R. (2d) 1; 38 N.R. 346; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; (1979), 106 D.L.R. (3d) 385; 50 C.C.C. (2d) 353; 13 C.R. (3d) 1; 15 C.R. (3d) 315; 30 N.R. 119; Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643; (1985), 24 D.L.R. (4th) 44; [1986] 1 W.W.R. 577; 69 B.C.L.R. 255; 16 Admin. L.R. 233; 23 C.C.C. (3d) 118; 49 C.R. (3d) 35; 63 N.R. 353.

DISTINGUISHED:

Dansereau v. Canada (Public Service Appeal Board), [1991] 1 F.C. 444; (1990), 91 CLLC 14,010; 122 N.R. 122 (C.A.); Clare v. Canada (Attorney General), [1993] 1 F.C. 641; (1993), 100 D.L.R. (4th) 400; 93 CLLC 14,025; 149 N.R. 303 (F.C.A.).

REFERRED TO:

Kampman and Treasury Board (Solicitor General—Correctional Service Canada), [1992] C.P.S.S.R.B. No. 4 (QL); Kampman v. Canada, A-1117-91, Stone J.A., judgment dated 21/1/93, F.C.A., not reported.

APPLICATION FOR JUDICIAL REVIEW of a decision of the Public Service Commission Appeal Board dismissing an appeal against the recommendation of a Deputy Commissioner of the Correctional Service Canada to the Public Service Commission that the applicant be released on the ground that the loss of her enhanced reliability status rendered her incapable of performing her duties. Application dismissed except that the case should be returned for reconsideration in view of the Board’s failure to properly consider the procedure followed by the deputy head in revoking the applicant’s enhanced reliability status.

COUNSEL:

Sean T. McGee for applicant.

Mylène-Y. Bouzigon for respondent.

SOLICITORS:

Nelligan/Power, Ottawa, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Strayer J.:

Relief Requested

This is an application for judicial review to set aside a decision of the Public Service Commission Appeal Board of July 22, 1993. In that decision the Board dismissed an appeal by the applicant under subsection 31(2) of the Public Service Employment Act[1] against the recommendation of the Deputy Commissioner (Pacific Region) of Correctional Service of Canada to the Public Service Commission that she be released from the Public Service on the ground that the loss of her enhanced reliability status rendered her incapable of performing the duties of her position.

Facts

The applicant was appointed to a position as Registered Nurse at Kent Institution, a maximum security penitentiary in British Columbia, effective December 4, 1989. The offer of employment specified that this position had a security requirement of “enhanced reliability.” It should be noted at the outset that the standards and procedures for granting or denying enhanced reliability status to a public servant are set out in the part of the Treasury Board Manual entitled “Security-Personnel Screening Standards” and dated November 1, 1990. Yet it seems clear that enhanced reliability status is not what is commonly thought of as constituting security clearance. This status is required:

… when the duties of a position or contract demand a significant degree of access to designated information or assets …. An individual granted this status may access, on a need-to-know basis, designated information and assets.[2]

“Security assessment” is discussed in another paragraph of the Manual and it is said to involved “an appraisal of loyalty to Canada and, so far as it is related thereto, the reliability of an individual ….”[3] It is clear from the Manual that the screening required for an enhanced reliability status is far less than that required for a security assessment. It is important to keep this in mind in considering the relevance of some of the jurisprudence on security clearances.

On December 13, 1990 a certain inmate, R. Moorehead, was released from Kent on parole. He had been acquainted with the applicant while in Kent. It is not in dispute that while on parole Moorehead occasionally met her in Abbottsford where she lived, beginning with a chance meeting at her church. She was together with him a few times on what appears to be a casual social basis, some times in the company of other people and some times alone. On January 24, 1991, Moorehead was arrested and charged with certain offences and was returned to Kent. The applicant participated in the admission process for Moorehead upon his return. At no time had she advised her superiors of her social contacts with Moorehead during his parole. These contacts came to the attention of the authorities by actions of Moorehead himself after his return to Kent. The Deputy Warden of Kent wrote to the applicant on February 4, 1991 advising her that he had received information that gave him concern that she had entered into an unauthorized relationship with an inmate which might have violated the Code of Discipline. She was suspended without pay effective February 12 and on February 20 attended a disciplinary hearing. This hearing resulted in her being suspended without pay for thirty consecutive shifts.

The relevant provision of the Code of Discipline[4] states:

19. An employee has committed a major infraction, normally warranting a suspension without pay or discharge, if he/she:

…

e.   enters into a relationship not in the line of duty or not approved by one’s authorized superior with an offender, ex-offender or the offender’s friends or relatives.

Before the suspension was terminated the applicant was advised on April 18, 1991 by the Deputy Commissioner (Pacific), Correctional Service of Canada that he was removing her enhanced reliability status effective immediately. He stated:

Your entry into a relationship with an offender while he was on parole and more importantly, the fact that you did not report this to the Correctional Service of Canada, has rendered you unreliable in terms of controlling the Government of Canada information and assets to which you have access.

In the same letter he advised her that because of her loss of enhanced reliability status he was obliged to recommend to the Public Service Commission that she be released because she was incapable of performing the duties of her position, being prohibited, as a result of the loss of her status, from any further access to designated information or sensitive assets. It seems clear from the evidence, and it was not contested by the respondent, that the decision to cancel the applicant’s enhanced reliability status was taken without any notice to her that this was in contemplation and without her having any opportunity to make submissions with respect to this decision.[5]

The discipline decision was the subject of a grievance before a Board member of the Public Service Staff Relations Board. Before that tribunal the respondent argued that “the removal of Enhanced Reliability Status is not adjudicable” and therefore could not be the subject of a grievance. In his decision dated January 10, 1992 [[1992] C.P.S.S.R.B. No. 4 (QL)] the Adjudicator agreed with that but nevertheless indicated that he could examine the matter if the discretion to revoke that status was exercised in bad faith. He was not convinced that there was bad faith. He went on to say that the issue of revocation and its consequences “are part and parcel with the deputy head’s recommendation made under section 31(1) of the Public Service Employment Act.”[6] That is, he regarded the revocation of this status as part of the determination of the deputy head under subsection 31(1) that the applicant was no longer capable of performing her job and thus outside his jurisdiction.

In the meantime the applicant had appealed the deputy head’s decision to have her released, using the appeal process provided in subsection 31(2) of the Public Service Employment Act. The Public Service Commission Appeal Board made an initial decision in this appeal but its decision was set aside by the Federal Court of Appeal [A-1117-91, Stone J.A., judgment dated 21/1/93, not reported]. The decision under review now is the second decision of that Board dated July 22, 1993. The Board dismissed the applicant’s appeal on essentially the following bases: that the procedure followed by the deputy head to revoke the applicant’s enhanced reliability status was not reviewable except to determine if it was based on accurate information, the Board concluding that the essential information relevant to that decision was not in dispute; that it was the duty of the deputy head to decide whether to revoke the status, and that decision was in his discretion as to the level of judgment he required from his staff; and, having exercised his discretion to revoke, it was then “open to the deputy head to recommend the appellant’s release because she was incapable of performing her duties.” While the Board implies that a lack of good faith could invalidate the exercise of discretion it found no basis upon which it could conclude that the Department acted in bad faith.[7]

The appplicant seeks judicial review of that decision alleging, it appears to me, both error of law and of fact.

Issues

I believe the first three issues have been best defined by the respondent in its analysis of the issues described by the applicant. The fourth issue is primarily addressed by the applicant. These issues are as follows:

(1) Can “incapacity” within the meaning of subsection 31(1) of the Public Service Employment Act arise from the fact that an employee has lost her enhanced reliability status when this is a condition of employment for that employee?

(2) If yes, can an Appeal Board hearing an appeal under subsection 31(2) from a recommendation by the deputy head that the employee be dismissed review the decision to revoke this status as part of the review of that recommendation?

(3) If yes, what standard should be applied by the Appeal Board to the review of the revocation of that status?

(4) Should the employee be warned and given an opportunity to correct her conduct before status is revoked?

Conclusions

Can incapacity arise from loss of enhanced reliability status?

This issue is central to the question of whether the Public Service Commission Appeal Board could review in any way the denial of enhanced reliability status in the course of hearing an appeal under subsection 31(2) of the Act. That appeal is from the recommendation of the deputy head which in this case was a recommendation that the applicant be dismissed because she was incapable of performing her duties, having lost her enhanced reliability status and thus her access to “designated information or sensitive assets.”[8]

I find the position of both parties somewhat ambivalent on this subject. The applicant has argued that an incapacity within the meaning of subsection 31(1) must arise for reasons entirely beyond the control of the employee. As stated in the applicant’s memorandum of argument:

If the inability to perform is within the control of the employee, it is a disciplinary matter.[9]

This would mean that the denial of enhanced reliability status in this case should not have been reviewed by the Public Service Staff Relations Board member in the course of the grievance as the circumstances leading to that denial were within the control of the applicant. Yet as I understand it, the applicant is now arguing that this is the matter which the Appeal Board should have reviewed in the subsection 31(2) appeal and the Board should have resolved questions of fact concerning that denial of status.

On the other hand the respondent seems to have followed the road of convenience depending on the circumstances. In the Treasury Board Manual, which describes enhanced reliability status and discusses its revocation, it is stated that:

6.1                                        Reliability status

Employees who wish to challenge a negative decision based on the results of a reliability check may do so through current grievance procedures in accordance with Sections 91 and 92 of the Public Service Staff Relations Act….[10]

In the letter from the deputy head advising the applicant of the decision to revoke her status it was stated in reference to this decision that:

If you so desire, you have the right to challenge this decision through the Departmental grievance procedure in accordance with Sections 91 and 92 of the Public Service Staff Relations Act. At your request, any such grievance can proceed directly to the Commissioner of Corrections. You may also have the right to refer the decision relating to your enhanced reliability status to the Human Rights Commission and/or the Federal Court.

Yet before the Public Service Staff Relations Board counsel for the employer is reported by the Board to have taken this position:

With regard to the grievor’s second grievance, [concerning denial of status] counsel stated that perhaps there was no administrative redress provided, but Parliament has anticipated in paragraph 91 of the Act that certain matters could be grieved but not all grievances were made adjudicable under paragraph 92 of the Act. Adjudicable matters were confined to collective agreement interpretation and application and to certain disciplinary actions. The removal of Enhanced Reliability Status is not adjudicable.[11]

The Board member hearing the grievance essentially agreed with this position saying that the revocation of this status lies within the sole discretion of the employer and is administrative in nature, and therefore the Tribunal could only examine the revocation if the discretion was exercised in bad faith.

The applicant attempted to have the revocation decision reviewed by the Security Intelligence Review Committee but it declined jurisdiction. No doubt the respondent supported that position.

Now the respondent takes the position that “the possession of a valid Enhanced Reliability Status is a qualification like any other.”[12] Yet the respondent argues that, although this is a matter of capacity of the applicant, the Appeal Board in hearing an appeal under subsection 31(2) concerning a recommendation by a deputy head that an employee be dismissed as incapable of performing her functions should not be able to review the decision by the same deputy head made at the same time to revoke her status, the decision which creates the incapacity.

While the respondent contends that revocation of status is the loss of a qualification like any other, it has cited jurisprudence to me such as Lee v. Attorney General of Canada[13] to the effect that a lack of a security clearance and a lack of merit are two completely different things for purposes of appointment to the Public Service.

I have concluded, on the language of the section and on the argument advanced by the respondent, that the possession of enhanced reliability status, if the job description requires it, is a “qualification like any other” and the loss of that status renders a person incapable of performing her work at least in circumstances such as the present. I do not think that there is anything to be gained by elaborate distinctions being drawn on the basis of whether the disqualification flows from factors within or beyond the will of the individual. The word “incapable” is sufficiently broad to cover both situations. While wilful incapacitation may indeed be the subject of disciplinary proceedings, that does not of itself prevent a dismissal being recommended on the same facts. Whatever may be the distinction between merit and ordinary security clearances, I am satisfied that a person who is performing a job which requires enhanced reliability status and who loses that status through her own misconduct may be said to be incapable of continuing to fill her post.

If yes, can an Appeal Board review the revocation of status?

As I have answered the first question in the affirmative, it flows in my view from the words of the statute that the Appeal Board can review the decision taken by the deputy head, as part of his decision to recommend dismissal, that the employee is incapable because in his view she is no longer entitled to enhanced reliability status. It appears to me that this is consistent with the position taken by both parties in this judicial review. The applicant is clearly attacking the decision of the Appeal Board for not having made a full review, particularly of the evidence on which the revocation decision was based. The respondent asserts that the loss of status is the loss of her qualification and therefore the loss of capacity. The logic of this is that the Appeal Board on an appeal under subsection 31(2) can review to the extent of its powers the decision that the employee no longer has that qualification and is thus incapable of working in her post.

If yes, what standard of review should be applied by the Appeal Board?

It should first be emphasized that subsection 31(2) states that where a deputy head has formed the opinion that an employee is incapable of performing his or her duties and should be released, and the deputy head has so recommended to the Commission, the employee

31. …

(2) … may appeal against the recommendation … to a board … to conduct an inquiry at which the employee and the deputy head, or their representatives, shall be given an opportunity to be heard.

While the section uses the term “appeal” which implies the right to review the correctness of the decision appealed both with respect to law and fact, it must be noted that the decision appealed from is one authorized by subsection 31(1) where “in the opinion of” the deputy head an employee is incapable. This indicates that the decision is largely a discretionary one. The Federal Court of Appeal has defined the role of the Appeal Board in these circumstances. In Ahmad v. Public Service Commission[14] the Court observed (in the context of a recommendation based on incompetence) that whether a person is incompetent is a matter of opinion which should be accepted by the Appeal Board unless

(1) the deputy head failed to apply properly some specific statutory or other legal direction;

(2) there is proof of bad faith in the decision made by the deputy head; or

(3) unless a Board

had before it material that satisfied it, as a matter of fact, that the deputy head was wrong in forming the opinion that the person in question was “incompetent … .

The same criteria should, it appears to me, apply with respect to the review powers of a board in respect of a decision concerning incapacity. A careful reading of Ahmad indicates that while deference should be shown by the Board in the first instance to the opinion formed by the deputy head, it can review the decision on matters of law, on the issue of good faith, and on the facts with the criterion apparently being correctness. This is what the Court of Appeal presumably meant when it said that if the Board had before it material that satisfied it “as a matter of fact” that the deputy head was wrong then it could reverse the deputy head.

I think there is another criterion for review which the Court of Appeal did not have occasion to mention, namely that of fairness in the deputy head’s decision-making to which I will return later.

Applying the above criteria, there was no suggestion before me nor, I think, before the Board that the deputy head had failed to apply properly some specific statutory or other legal direction. Therefore that ground of review was not open to the Appeal Board. With respect to the question of good faith the Appeal Board did address this issue and found that there was no evidence that the employer failed to act in good faith in this case. No such evidence has been suggested to me, though the harshness of the decision taken to dismiss the applicant even after severe disciplinary action would certainly invite consideration of this issue. I do not believe any reviewable error can be found on this ground on the basis of the record before me, however.

With respect to review of the findings of fact upon which the deputy head based his opinion, as contemplated in Ahmad, I believe the Board adequately performed its function. The essential facts were not in issue as to what had transpired. There was some dispute as to the depth of the relationship between the applicant and the inmate and, for reasons which I will state below, it appears to me the Board should have been concerned as to the procedure followed by the deputy head in revoking her enhanced reliability status. But the essential facts were that the applicant had had some kind of social contact with the inmate outside of prison and she did not report this to her superiors as the Code of Discipline required. Based on those facts, it was up to the deputy head to assess whether he could any longer trust the applicant with enhanced reliability status and the access which that would give her to documents and property of the institution. That was very much a matter of opinion and the essential facts underlining that opinion were not in dispute. In my view it was not open to the Board to review that opinion as such. While I do not necessarily equate the acquisition or loss of enhanced reliability status with the acquisition or loss of security clearance, the administrative law principles as to the non-reviewability, even on appeal, of matters of opinion, are essentially the same.[15]

In my view the fourth ground for review by an Appeal Board is with respect to the procedure employed by the deputy head in deciding that an employee is incapable of performing her duties. It is not surprising that the Federal Court of Appeal did not refer to this as a ground for review in its decision in Ahmad rendered in 1974. That was before the concept of fairness had been generally recognized as a requirement even in the making of administrative decisions.[16] It has been held recently by the Supreme Court of Canada in Thomson v. Canada[17] that:

… the Deputy Minister was under a duty to comply with the principles of procedural fairness in the context of security clearance decision-making. Generally speaking, fairness requires that a party must have an adequate opportunity of knowing the case that must be met, of answering it and putting forward the party’s own position.

If fairness is required in the taking of security decisions which may involve state security and matters of urgency, then a fortiori it should be required in the making of a mere decision concerning ordinary reliability. In the present case, as noted earlier, although the applicant had had a hearing before the disciplinary decision was taken against her, she was not interviewed or consulted or advised prior to the decision by the Deputy Commissioner to revoke her enhanced reliability status. This matter was raised before the Appeal Board. In response to argument by the applicant to the effect that she should have been given an opportunity to be heard before the decision was made the Board stated as follows:

The procedure followed by the deputy head in arriving at a decision to remove an enhanced reliability status is relevant to an inquiry conducted under section 31 of the Public Service Employment Act to the extent that it brings into question the accuracy or reliability of the information on which the decision is made.[18]

As the Board found the relevant “information” not to be in dispute, it found it unnecessary to consider the propriety of the procedure. In my view this is wrong in law. In effect the Appeal Board was saying that it can only review the procedure followed by the deputy head if that procedure resulted in a wrong decision. That is not the law with respect to a requirement of fairness in decision-making. Whether the ultimate decision is right or wrong it can be set aside as invalid if there has been a denial of fairness.[19] It was an error of law on the part of the Appeal Board to fail to review the procedure followed by the deputy head. That procedure may well have resulted in a denial of fairness. Whether the procedure was fair is not a decision I can make but it is one which the Appeal Board must make and the matter must be referred back for consideration by the Board on that aspect.

Should the Appeal Board have found a prior warning was required?

The applicant contended before the Appeal Board that the deputy head had a duty to warn an employee of the possible consequences of her actions before making a recommendation to release her. Further, it was argued that the employer had a duty to refer her for counselling to determine whether rehabilitation was possible. The Appeal Board considered this argument and rejected it on the basis that there might be a duty to warn if what concerned the deputy head was a pattern of poor judgment. But what the deputy head was concerned about was one (in his view) serious instance of poor judgment which caused him to exercise his discretion to dismiss. In those circumstances, according to the Board, he was entitled to decide that he could not again trust the judgment of this individual.

The duty to warn has been confirmed and elaborated by the Federal Court of Appeal in cases such as Dansereau v. Canada (Public Service Appeal Board)[20] and Clare v. Canada (Attorney General).[21] These cases involved long-term employees who had in each case worked for 22 or 23 years for the federal Government. In Dansereau the Court stated:[22]

I therefore conclude on this point for the purposes of the case at bar that when an employee who has performed the same duties for several years consistently receives satisfactory performance reports and is not the subject of any serious criticism by his employer, a presumption results that he has the necessary competence to perform the said duties and, in the absence of unusual or urgent circumstances, the employer cannot dismiss him for incompetence without telling him of the mistakes he is alleged to have made, without giving him an opportunity to correct them and without indicating to him the risk of dismissal he runs if they are not corrected. Of course, each case will be decided on its own merits and the type of warning and period for correction will vary depending on the circumstances.

The present case is not on all fours with the facts in those cases. In the present case the applicant had apparently worked at the Kent Institution on a short-term basis in 1988 and perhaps part of 1989. But she was only appointed to the position in question effective December 4, 1989 and had worked there only some thirteen months when the events occurred which gave rise to her dismissal. Therefore the same “presumption” referred to in Dansereau probably could not be said to have arisen in this case. Further, I think it was open to the Board in effect to conclude, in the language of Dansereau, that these were unusual or urgent circumstances where the deputy head in the exercise of his discretion formed the opinion that he could no longer tolerate the presence of this employee in the institution. While the Appeal Board did not put it in those precise terms, I believe that that is the essence of what the Board decided and it was a decision legally open to it.

Disposition

The application for judicial review must therefore be dismissed except with respect to the failure of the Board to consider properly the procedure followed by the deputy head in revoking the applicant’s enhanced reliability status. The matter will be referred back to the Board for reconsideration of that question in accordance with these reasons.

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