Brescia et al. v. Canada (Treasury Board) et al., (2005) 337 N.R. 154 (FCA)

• Judge: Desjardins, Nadon and Pelletier, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: March 08, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 337 N.R. 154 (FCA);2005 FCA 236

Brescia v. Can. (2005), 337 N.R. 154 (FCA)

MLB headnote and full text

Temp. Cite: [2005] N.R. TBEd. JN.063

Ronald Brescia, Rosa Carroll, Debra Jolicoeur and Terrence Matson (appellants) v. Her Majesty the Queen in Right of Canada as represented by Treasury Board and the Canadian Grain Commission (respondents)

(A-160-04; 2005 FCA 236)

Indexed As: Brescia et al. v. Canada (Treasury Board) et al.

Federal Court of Appeal

Desjardins, Nadon and Pelletier, JJ.A.

June 17, 2005.

Summary:

The federal Treasury Board placed full-time permanent employees of the Canadian Grain Commission on "off-duty status" with­out pay for periods up to three months due to a work shortage. The Public Service Alli­ance of Canada's application for judicial review was dismissed for lack of standing (see 205 F.T.R. 270, affd. 293 N.R. 325). The employees' grievances were dismissed. The employees applied for judicial review.

The Federal Court, in a decision reported at 247 F.T.R. 49, dismissed the application. The employees appealed.

The Federal Court of Appeal, Pelletier, J.A., dissenting, dismissed the appeal.

Labour Law - Topic 9518

Public service labour relations - Collective agreement - General and definitions - Lay­off defined - Full-time permanent, indeter­minate, non-seasonal employees of the Ca­na­dian Grain Commission filed a griev­ance, challenging the federal Treasury Board's authority to place them on "off-duty status" without pay for periods up to three months due to a work shortage - The employees were not terminated and were re­called to work in alphabetical order - The grievance was dismissed - The dis­missal was upheld on judicial review - The Federal Court of Appeal dismissed an ap­peal - Off-duty status was not a lay-off under s. 29 of the Public Service Employ­ment Act (PSEA) where there was no ces­sa­tion of employment - The Treasury Board's authority to place the employees on off-duty status without pay came from the wide powers that the Financial Admin­istration Act (ss. 7(1)(e), 11(2)(a) and 11(2)(d)) and the collective agreement conferred on it respecting personnel man­agement - Strictly speaking, the merit principle found in the PSEA did not apply since the PSEA did not contemplate off-duty status - However, the court noted that recall by alphabetical order was unreason­able and the Treasury Board's wide powers should be exercised in the spirit of the tradition of fairness reflected in the legisla­tion - See paragraphs 46 to 62.

Labour Law - Topic 9621

Public service labour relations - Collective agreement - Management rights - General -[ La­bour Law - Topic 9518 ].

Labour Law - Topic 9865

Public service labour relations - Job layoffs and other work reduction schemes - "Off-pay status" - [See Labour Law - Topic 9518 ].

Cases Noticed:

Public Service Alliance of Canada et al. v. Canadian Grain Commission and Canada (Treasury Board) et al. (1986), 5 F.T.R. 51 (T.D.), folld. [para. 14].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 21].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 21].

Lavoie et al. v. Canada et al. (1999), 242 N.R. 278 (F.C.A.), refd to. [para. 24].

Gingras v. Canada, [1994] 2 F.C. 734; 165 N.R. 101 (F.C.A.), refd to. [para. 24].

Gray v. Attorney General of Canada, [1978] 1 F.C. 808; 18 N.R. 393 (F.C.A.), refd to. [para. 48].

Canada (Procureur général) v. Tremblay (1995), 208 N.R. 56 (F.C.A.), refd to. [para. 48].

Atomic Energy of Canada Ltd. v. Jindal (1998), 229 N.R. 212 (F.C.A.), refd to. [para. 48].

Tower et al. v. Minister of Na­tional Reve­nue et al., [2004] 1 F.C.R. 183; 310 N.R. 280; 2003 FCA 307, refd to. [para. 69].

Statutes Noticed:

Public Service Employment Act, R.S.C. 1985, c. P-33, sect. 29 [para. 28].

Authors and Works Noticed:

Caron, Renée, Employment Law in the Federal Public Service (Looseleaf), gen­erally [para. 22].

Counsel:

Andrew Raven, for the appellants;

Richard Fader, for the respondents.

Solicitors of Record:

Raven, Allen, Cameron, Ballantyne & Yazbeck, Ottawa, Ontario, for the appel­lants;

John Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This appeal was heard at Ottawa, Ontario, on March 8, 2005, by Desjardins, Nadon and Pelletier, JJ.A., of the Federal Court of Ap­peal. The decision of the court was released on June 17, 2005, with the follow­ing opin­ions:

Desjardins, J.A. - see paragraphs 1 to 54;

Nadon, J.A., concurring - see paragraphs 55 to 62;

Pelletier, J.A., dissenting - see para­graphs 63 to 72.