Canada (Attorney General) v. Amos,

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Blais, C.J., Dawson and Trudel, JJ.A.
• Court: Court of Appeal (Canada)
• Citation: 2011 FCA 38,(2011), 417 N.R. 74 (FCA)
• Date: 08 December 2010

Can. (A.G.) v. Amos (2011), 417 N.R. 74 (FCA)

MLB headnote and full text

Temp. Cite: [2011] N.R. TBEd. FE.031

Andrew Donnie Amos (appellant) v. Attorney General of Canada (respondent)

(A-506-09; 2011 FCA 38)

Indexed As: Canada (Attorney General) v. Amos

Federal Court of Appeal

Blais, C.J., Dawson and Trudel, JJ.A.

February 3, 2011.

Summary:

A federal public servant (Amos) filed a grievance challenging a disciplinary suspension. The grievance was referred to adjudication pursuant to s. 209 of the Public Service Labour Relations Act. With the assistance of the Adjudicator, the parties reached a settlement set out in a Memorandum of Agreement (MOA). Amos subsequently requested that the adjudication hearing on the merits of his grievance be reopened on the ground that the Deputy Head failed to comply with the terms of the MOA. The Deputy Head objected on the ground that the existence of a final and binding settlement agreement constituted a bar to the Adjudicator's jurisdiction. The Adjudicator concluded that he had jurisdiction to entertain Amos' allegation of the Deputy Head's non-compliance with the settlement agreement and that he could make a remedial order. The Adjudicator ordered that the adjudication hearing resume for the purpose of determining whether the Deputy Head complied with the terms of the MOA, and, if necessary, for the purpose of determining an appropriate remedy. The Attorney General of Canada applied for judicial review of the Adjudicator's decision.

The Federal Court, in a decision reported at (2009), 355 F.T.R. 181, allowed the application. The court held that the Adjudicator erred in concluding that he had jurisdiction to consider the dispute over the MOA. Amos appealed.

The Federal Court of Appeal allowed the appeal and restored the Adjudicator's decision.

Labour Law - Topic 9128

Public service labour relations - Adjudication of grievances - Jurisdiction of adjudicators or boards - A federal public servant (Amos) filed a grievance challenging a disciplinary suspension - The grievance was referred to adjudication pursuant to s. 209 of the Public Service Labour Relations Act (PSLRA) - With the assistance of the Adjudicator, the parties reached a settlement set out in a Memorandum of Agreement (MOA) - Amos subsequently requested that the adjudication hearing on the merits of his grievance be reopened on the ground that the Deputy Head failed to comply with the terms of the MOA - The Deputy Head objected on the ground that the existence of a final and binding settlement agreement constituted a bar to the Adjudicator's jurisdiction - The Adjudicator found that the issue of non-compliance with the settlement agreement arose in its essential character from the original grievance, which had not been withdrawn by Amos - Therefore, he concluded that he had jurisdiction to entertain Amos' allegation of the Deputy Head's non-compliance with the MOA and that he could make a remedial order - The Attorney General of Canada applied for judicial review - The application was allowed - Amos appealed - The Federal Court of Appeal allowed the appeal and restored the Adjudicator's decision - The Adjudicator concluded that he had jurisdiction to consider an allegation that a party was in non-compliance with a final and binding settlement where the dispute underlying the settlement agreement was linked to the original grievance, and where the latter fell under s. 209(1) of the PSLRA - Considering that Amos had not withdrawn his grievance, the court agreed with the Adjudicator - The Adjudicator's decision was reasonable - See paragraphs 39 to 79.

Labour Law - Topic 9128

Public service labour relations - Adjudication of grievances - Jurisdiction of adjudicators or boards - The Federal Court of Appeal held that where an individual grievance was referred to adjudication in relation to disciplinary action resulting in suspension, and the parties had entered into a settlement agreement, an adjudicator had jurisdiction under the Public Service Labour Relations Act to determine whether the parties' settlement agreement was final and binding - See paragraphs 35 to 38.

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators, grievance appeal boards or officers - Scope of review (incl. standard) - A grievance filed by a federal public servant (Amos) was referred to adjudication pursuant to s. 209 of the Public Service Labour Relations Act (PSLRA) - With the assistance of the Adjudicator, the parties reached a settlement set out in a Memorandum of Agreement (MOA) - Amos subsequently requested that the adjudication hearing on the merits of his grievance be reopened on the ground that the Deputy Head failed to comply with the terms of the MOA - The Adjudicator concluded that he had jurisdiction to entertain Amos' allegation of the Deputy Head's non-compliance with the settlement agreement and that he could make a remedial order - The Attorney General of Canada applied for judicial review - The application judge reviewed the Adjudicator's decision on a standard of correctness and allowed the application - On appeal, the Federal Court of Appeal held that the Adjudicator's decision was reviewable on a standard of reasonableness - Section 233 of the PSLRA contained a strong privative clause - The broader aim of the PSLRA was to provide an expert regime for the determination of labour disputes, and to facilitate their resolution expeditiously, inexpensively, and with little formality - The question in dispute neither involved a question of central importance to the legal system nor fell outside the Adjudicator's specialized area of expertise - The Adjudicator was an independent decision-maker with specialized jurisdiction in labour relations within the federal public service - The questions at issue fell within the scope of his jurisdiction - His decision was entitled to deference - See paragraphs 23 to 34.

Cases Noticed:

MacDonald v. Canada et al. (1998), 158 F.T.R. 1; 83 A.C.W.S.(3d) 1033 (T.D.), refd to. [para. 10].

Bhatia v. Treasury Board (Public Works Canada), [1989] C.P.S.S.R.B. No. 141, refd to. [para. 10].

Fox v. Treasury Board (Immigration and Refugee Board), 2001 PSSRB 130, refd to. [para. 10].

Bedok v. Treasury Board (Department of Human Resources Development), 2004 PSSRB 163, refd to. [para. 10].

Maiangowi v. Treasury Board (Department of Health), 2008 PSLRB 6, refd to. [para. 16].

Canada Post Corp. v. Public Service Alliance of Canada et al. (2010), 399 N.R. 127; 2010 FCA 56, refd to. [para. 23].

Public Service Alliance of Canada v. Canadian Federal Pilots Association et al. (2009), 392 N.R. 128; 2009 FCA 223, refd to. [para. 24].

Nash v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 98, refd to. [para. 36].

Van de Mosselaer v. Treasury Board (Department of Transport), 2006 PSLRB 59, refd to. [para. 36].

Macdonald v. Treasury Board (Department of National Defence), [1985] C.P.S.S.R.B. No. 266, refd to. [para. 36].

Treasury Board v. Deom, [1985] C.P.S.S.R.B. No. 150, refd to. [para. 37].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2006] 1 S.C.R. 140; 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1; 2006 SCC 4, refd to. [para. 43].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 48].

Elliott v. De Havilland Aircraft Co. of Canada Ltd. (1989), 32 O.A.C. 250 (Div. Ct.), refd to. [para. 51].

Butt v. United Steelworkers of America et al. (1993), 106 Nfld. & P.E.I.R. 181; 334 A.P.R. 181 (Nfld. T.D.), refd to. [para. 51].

Bourne v. Otis Elevator Co. (1984), 45 O.R.(2d) 321 (H.C.), refd to. [para. 51].

Regina Police Association Inc. and Shotton v. Board of Police Commissioners of Regina, [2000] 1 S.C.R. 360; 251 N.R. 16; 189 Sask.R. 23; 216 W.A.C. 23; 2000 SCC 14, refd to. [para. 53].

Newfoundland Association of Public Employees v. Newfoundland (Attorney General), [1978] 1 S.C.R. 524; 16 N.R. 16; 12 Nfld. & P.E.I.R. 238; 25 A.P.R. 238, refd to. [para. 63].

Heustis v. New Brunswick Electric Power Commission, [1979] 2 S.C.R. 768; 27 N.R. 103; 25 N.B.R.(2d) 613; 51 A.P.R. 613, refd to. [para. 63].

Lindor v. Treasury Board (Solicitor General - Correctional Service Canada), 2003 PSSRB 10, refd to. [para. 65].

Statutes Noticed:

Public Service Labour Relations Act, S.C. 2003, c. 22, sect. 208, sect. 209 [para. 7]; sect. 226(2) [para. 9]; sect. 228 [para. 74]; sect. 233 [para. 29]; sect. 236 [para. 9].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 16 [para. 43].

Counsel:

Andrew Raven, for the appellant;

John Jaworski and Jennifer Lewis, for the respondent.

Solicitors of Record:

Raven, Cameron, Ballantyne & Yazbeck, Ottawa, Ontario, for the appellant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on December 8, 2010, at Ottawa, Ontario, before Blais, C.J., Dawson and Trudel, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Trudel, J.A., on February 3, 2011.