Canada (Attorney General) v. Beyak, 2011 FC 629

• Judge: Mandamin, J.
• Court: Federal Court (Canada)
• Case Date: October 14, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 629;(2011), 390 F.T.R. 224 (FC)

Can. (A.G.) v. Beyak (2011), 390 F.T.R. 224 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. JN.024

Attorney General of Canada (applicant) v. Jennifer Beyak (respondent)

(T-80-10; 2011 FC 629)

Indexed As: Canada (Attorney General) v. Beyak

Federal Court

Mandamin, J.

May 31, 2011.

Summary:

Beyak filed two complaints of abuse of authority with National Resources Canada, regarding two staffing appointments. The Public Service Staffing Tribunal found that the complaints were substantiated. The Tribunal ordered the appointments revoked and further ordered corrective actions. The Attorney General of Canada applied for judicial review of the corrective action orders.

A Prothonotary of the Federal Court, on the consent of the parties, granted the judicial review application. The court remitted the matter back to the Tribunal, to deal with the matter consistent with the court's decision in "Cameron and Maheux" (2009). The Tribunal determined that it had the power to make recommendations for corrective actions, and changed its corrective action orders to recommendations. The Attorney General applied for judicial review, submitting that the Tribunal was trying to achieve indirectly what it had no power to order under the Public Service Employment Act (PSEA), and that the Tribunal erred in law by acting without jurisdiction or exceeded its jurisdiction contrary to ss. 18.1(4) (a) and (c) of the Federal Courts Act and s. 81(1) of the PSEA.

The Federal Court concluded "the Tribunal may make non-binding recommendations" and dismissed the application for the following reasons: (1) the Tribunal's interpretation of its home statute, the PSEA, that it had jurisdiction to make recommendations, was reasonable, and (2) that its non-binding recommendations were not reviewable as being inexorably connected with a decision or of having an impact on the reputation of a party. In any event, the court would exercise its discretion not to grant judicial review "because the development of Tribunal recommendations is just beginning, and judicial review of Tribunal recommendations should await a more appropriate case."

Administrative Law - Topic 3203

Judicial review - General - Matters not subject to review - [See Courts - Topic 4021 ].

Administrative Law - Topic 3209

Judicial review - General - Recommendations of tribunal - The Public Service Staffing Tribunal determined that it had the power to make recommendations for corrective actions, and changed its corrective action orders to recommendations - The Tribunal directed its attention to the principles stated in the preamble of the Public Service Employment Act (PSEA) - The Attorney General of Canada applied for judicial review, submitting that the Tribunal was trying to achieve indirectly what it had no power to order under the PSEA - The Federal Court stated that "[t]he preamble of the PSEA establishes as fundamental the importance of merit and non-partisanship in the public service. The PSEA establishes the Tribunal as an independent tribunal and assigns to it under s. 88(2) a broad statutory mandate 'to consider and dispose of complaints'. In my view, this open-ended language suggests Parliament chose to give the Tribunal considerable flexibility ... The PSEA does not expressly prohibit the Tribunal from making recommendations" - See paragraphs 50 to 52.

Administrative Law - Topic 3209

Judicial review - General - Recommendations of tribunal - The Attorney General of Canada applied for judicial review of a decision by the chairperson of the Public Service Staffing Tribunal - At issue was whether the Tribunal had the jurisdiction to make recommendations - The Federal Court stated that "[a]t the heart of the issue is whether the Tribunal has a broad flexibility to fulfill its mandate (as suggested in the statute) or whether the Tribunal is restricted to correcting the particular problem brought to its attention (as suggested by the jurisprudence in Cameron and Maheux). The Court in Cameron and Maheux does note that the Tribunal may make the deputy head aware of the incident. I would think that the Tribunal may not only make a deputy head (or the PSC [Public Service Commission]) aware of an incident but also its concerns arising from the incident. One way of doing so would be in the form of recommendations grounded in the facts surrounding the incident that led to the successful complaint. As such, I find that the Tribunal's interpretation of its home statute as allowing it to make recommendations where it identified matters of concern arising from matters before it to be reasonable" - See paragraphs 53 and 54.

Administrative Law - Topic 6207

Judicial review - Statutory appeal - Scope or standard of review - Question of law or jurisdiction - The Attorney General of Canada applied for judicial review of a decision by the chairperson of the Public Service Staffing Tribunal - The Federal Court considered an issue to be whether the Tribunal had the jurisdiction to make recommendations - The parties differed on the standard of review - The court conducted a standard of review analysis (contextual) to determine the appropriate standard of review, and concluded that "the thrust of the Dunsmuir standard of review factors for Tribunal rulings not involving jurisdictional questions strongly weighs towards the standard of review of reasonableness. This would include questions involving interpretation of the Tribunal's home statute" - See paragraphs 23 to 43.

Courts - Topic 4021

Federal Court of Canada - Jurisdiction - Federal Court - Relief against federal boards, commissions or tribunals - The Public Service Staffing Tribunal amended its corrective action orders to non-binding recommendations - The Attorney General of Canada applied for judicial review - The respondent submitted that the court did not have the jurisdiction to intervene in a challenge to either non-binding recommendations or to obiter views by the Tribunal because they were part of reasons for a decision, not the decision itself - The Federal Court found the Tribunal's recommendations were not reviewable - The Tribunal's recommendations formed the essence of the amendment and therefore were not mere obiter dicta commentary - "[I]n certain situations, the Court has found recommendations may be considered reviewable, when a decision relies solely on the recommendation or when the recommendation affects the legal rights or interests of a party" - The court found the recommendations in this case were not reviewable as inexorably connected to any decision - Nor did the court see evidence of any legal rights or interests of a party that might be affected - See paragraphs 55 to 68.

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Federal Court - Decisions of federal boards, commissions or tribunals - [See Courts - Topic 4021 ].

Labour Law - Topic 9015

Public service labour relations - General principles - Public Service Staff Relations Board - Jurisdiction (incl. chairperson) - [See both Administrative Law - Topic 3209 ].

Labour Law - Topic 9323

Public service labour relations - Judicial review - Decisions of board or commission - Standard of review - [See Administrative Law - Topic 6207 ].

Statutes - Topic 1831

Interpretation - Intrinsic aids - Preamble - General - [See first Administrative Law - Topic 3209 ].

Cases Noticed:

Canada (Attorney General) v. Cameron et al. (2009), 365 F.T.R. 222; 2009 FC 618, consd. [para. 10].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, appld. [para. 24].

Lavigne v. Canada (Minister of Justice) et al. (2009), 352 F.T.R. 269; 2009 FC 684, consd. [para. 25].

Public Service Alliance of Canada v. Canadian Federal Pilots Association et al. (2009), 392 N.R. 128; 2009 FCA 223, consd. [para. 32].

GKO Engineering v. Canada (2001), 268 N.R. 383; 2001 FCA 73, refd to. [para. 56].

Air Canada Pilots Association v. Air Line Pilots Association et al. (2007), 366 N.R. 328; 2007 FCA 241, refd to. [para. 57].

Jada Fishing Co. et al. v. Canada (Minister of Fisheries and Oceans) et al. (2002), 288 N.R. 237; 2002 FCA 103, refd to. [para. 59].

Chauvin v. Canada (2009), 355 F.T.R. 200; 2009 FC 1202, refd to. [para. 60].

Lingley v. New Brunswick Board of Review Under Section 547 of the Criminal Code of Canada, [1976] 1 F.C. 98; 13 N.R. 22 (F.C.A.), consd. [para. 61].

Waterman v. Canada (Attorney General) (2009), 350 F.T.R. 88; 2009 FC 844, refd to. [para. 63].

Morneault v. Canada (Attorney General) (1998), 150 F.T.R. 28 (F.C.), revd. in part (2000), 256 N.R. 85 (F.C.A.), refd to. [para. 65].

Ayotte (Susan) et al. v. Canada (Minister of National Defence) et al., 2010 PSST 0016, refd to. [para. 71].

Statutes Noticed:

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 18(1), sect. 18.1(4) [para. 17].

Public Service Employment Act, S.C. 2003, c. 22, sect. 77(1), sect. 81(1), sect. 82, sect. 88(2), sect. 102(1), sect. 102(2) [para. 18].

Counsel:

Stephan Bertrand, for the applicant;

Steven Welchner and Patrizia Casepanella, for the respondent.

Solicitors of Record:

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

Welchner Law Office, Ottawa, Ontario, for the respondent.

This application was heard at Ottawa, Ontario, on October 14, 2010, before Mandamin, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated May 31, 2011.