Public Service Alliance of Canada v. Canada (Attorney General), (2013) 439 F.T.R. 11 (FC)

• Judge: Gleason, J.
• Court: Federal Court (Canada)
• Case Date: July 31, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 439 F.T.R. 11 (FC);2013 FC 918

PSAC v. Can. (A.G.) (2013), 439 F.T.R. 11 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. SE.008

Public Service Alliance of Canada (applicant) v. Attorney General of Canada (respondent)

(T-1050-13; 2013 FC 918; 2013 CF 918)

Indexed As: Public Service Alliance of Canada v. Canada (Attorney General)

Federal Court

Gleason, J.

August 30, 2013.

Summary:

The Public Service Alliance of Canada was the certified bargaining agent for the Canada Border Services Agency employees in the Border Services Group. The employer was the Treasury Board of Canada. The Alliance and the employer were in the process of bargaining for the renewal of the second collective agreement. Under s. 183 of the Public Service Labour Relations Act, the Minister directed the Chairperson of the Public Service Labour Relations Board to conduct a vote on the employer's last offer, because he believed it was in the public interest. This was the first time the Minister had exercised his authority under s. 183. The Alliance applied for judicial review. Preliminary issues included a challenge to the ability of the Alliance to bring the application.

The Federal Court granted the application. The Court determined that the Alliance did have standing to bring the application, that the issues it raised were justiciable and that the Alliance was entitled to, but denied, procedural fairness. The denial of procedural fairness resulted in the Minister being deprived of important facts and of the point of view of the Alliance. Therefore, the Minister's decision was set aside. It was not appropriate to remit the matter back to the Minister for redetermination, as the issuance of the Public Interest Commission report was an important changed circumstance and, in any event, s. 183 afforded the basis for a new application for a vote to be made. Finally, the circumstances did not justify an elevated costs award.

Administrative Law - Topic 2094.1

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Crown Ministers - [See sixth Labour Law - Topic 9718 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See fourth Labour Law - Topic 9718 ].

Administrative Law - Topic 2402

Natural justice - Procedure - General - Duty of fairness - [See fourth Labour Law - Topic 9718 ].

Administrative Law - Topic 2451

Natural justice - Procedure - Notice - Effect of lack of notice - [See fourth Labour Law - Topic 9718 ].

Administrative Law - Topic 3205.2

Judicial review - General - Governmental action - [See second Labour Law - Topic 9718 ].

Administrative Law - Topic 3211

Judicial review - General - Review of exercise of statutory power - [See second Labour Law - Topic 9718 ].

Administrative Law - Topic 3221

Judicial review - General - Unreasonableness of decision attacked (incl. reasonableness simpliciter) - [See fourth and fifth Labour Law - Topic 9718 ].

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - [See first and second Labour Law - Topic 9718 ].

Courts - Topic 4071.4

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - Standing - [See second Labour Law - Topic 9718 ].

Crown - Topic 666

Authority of Ministers - Interpretation of legislation (incl. standard of review of ministerial interpretation) - [See fourth Labour Law - Topic 9718 ].

Crown - Topic 673

Authority of Ministers - Exercise of - Statutory authority - [See fourth Labour Law - Topic 9718 ].

Crown Topic 674

Authority of Ministers - Exercise of - Particular cases - [See fourth Labour Law - Topic 9718 ].

Labour Law - Topic 9302

Public service labour relations - Judicial review - General - Status or standing - [See first and second Labour Law - Topic 9718 ].

Labour Law - Topic 9718

Public service labour relations - Collective agreement - Negotiations, mediation and conciliation - Vote on employer's offer - The Public Service Alliance of Canada was the certified bargaining agent for the Canada Border Services Agency employees in the Border Services Group, comprised of Border Services Officers (BSOs) - In the present application for judicial review, the Alliance sought to set aside the Minister's decision under s. 183 of the Public Service Labour Relations Act (PSLRA), directing the Chairperson of the Public Service Labour Relations Board to conduct a vote on the employer's last offer - The respondent challenged the ability of the Alliance to bring the application - In support of the argument that the Alliance was not directly affected by the Minister's decision, the respondent asserted that the decision impacted only the BSOs and not the Alliance - The Federal Court disagreed - Indeed, "it would be difficult to find a decision that might more deeply affect a trade union's interests than the decision to order a vote among bargaining unit members under a provision like section 183 of the PSLRA. ... More fundamentally, though, the respondent's argument misconceives the collective bargaining process and the nature of the interests at play in a case such as this." - See paragraphs 35 to 43.

Labour Law - Topic 9718

Public service labour relations - Collective agreement - Negotiations, mediation and conciliation - Vote on employer's offer - The Public Service Alliance of Canada (the certified bargaining agent for the Canada Border Services Agency employees) and Treasury Board (the employer) were in the process of bargaining for the renewal of the second collective agreement - The Minister, under s. 183 of the Public Service Labour Relations Act, directed the Chairperson of the Public Service Labour Relations Board to conduct a vote on the employer's last offer, because he believed it was in the public interest - The Alliance applied for judicial review - The respondent objected to the Alliance's standing to bring the application on the basis that the Minister's decision was not justiciable - The Federal Court held that the objection was without merit - The decision at issue was fundamentally different from that in the cases relied on by the respondent - "What is at issue here is a decision made by a minister of the federal government to order a vote to settle the terms of a collective agreement to which the government, itself (through Treasury Board), is a party. The issues at play involve an alleged unreasonable exercise of ministerial discretion, violation of procedural fairness and bias. These issues are not beyond the institutional competence of a court, are legal in nature and are not purely political. They are accordingly not so policy-laden or complex that they should be immune from review, and the respondent has cited no authority from a labour relations context to suggest that a decision like that of the Minister in this case may not be the subject of judicial review." - See paragraphs 44 to 51.

Labour Law - Topic 9718

Public service labour relations - Collective agreement - Negotiations, mediation and conciliation - Vote on employer's offer - The Public Service Alliance of Canada (the certified bargaining agent for the Canada Border Services Agency employees) and Treasury Board (the employer) were in the process of bargaining for the renewal of the second collective agreement - The Minister, under s. 183 of the Public Service Labour Relations Act, directed the Chairperson of the Public Service Labour Relations Board to conduct a vote on the employer's last offer, because he believed it was in the public interest - The employer had only told the Alliance that it was considering making a request to the Minister for a directed vote - The Minister provided the Alliance no notice of the application under s. 183 - On judicial review, a substantive issue was whether the Alliance was entitled to procedural fairness, and, if so, whether it was accorded procedural fairness - The Federal Court held that the decision at issue fell at the lower end of the procedural fairness spectrum - However, it did not follow that the Alliance was not entitled to notice or to the opportunity to make submissions - It was not incumbent on the Alliance to have discovered whether the employer had made an application - Rather, the Minister was required to provide the Alliance with notice and an opportunity to make submissions - The Minister would have been required to consider the points the Alliance would have raised - Each of those points was a relevant consideration - Thus, the violation of the Alliance's procedural fairness rights might well have impacted the Minister's decision - In the result, a remedy was awarded in respect of the breach of procedural fairness - See paragraphs 52 to 69.

Labour Law - Topic 9718

Public service labour relations - Collective agreement - Negotiations, mediation and conciliation - Vote on employer's offer - The Public Service Alliance of Canada (the certified bargaining agent for the Canada Border Services Agency employees) and Treasury Board (the employer) were in the process of bargaining for the renewal of the second collective agreement - The Minister, under s. 183 of the Public Service Labour Relations Act (PSLRA), ordered a vote on the employer's last offer, because he believed it was in the public interest - On judicial review, the Alliance alleged that the decision was unreasonable because it frustrated the purpose of the PSLRA to order a vote before the parties had the opportunity to bargain following the issuance of a Public Interest Commission (PIC) report - The Federal Court stated that "[h]ere, I do not believe that a decision to order a vote before the parties have bargained to impasse following the issuance of a PIC report can necessarily be said to frustrate the purposes of the PSLRA ... . First, ... the purpose of the PSLRA is not only to promote the furtherance of free collective bargaining in the federal public service ... Second, the provisions of the PSLRA foresee several means for concluding collective agreements other than consensual collective bargaining. ... Third, ... there are no temporal limitations in the PSLRA on when the Minister may order a vote under section 183. ... This conclusion, however, should not be taken as implying that the discretion afforded to the Minister under section 183 of the PSLRA can be used with the intent of running roughshod over the collective bargaining process established under the PSLRA so as to bargain directly with employees." - In the end result, the sole basis for setting the Minister's decision aside flowed from the denial of procedural fairness, which resulted in the Minister being deprived of information and submissions that might have impacted his decision - See paragraphs 72 to 76.

Labour Law - Topic 9718

Public service labour relations - Collective agreement - Negotiations, mediation and conciliation - Vote on employer's offer - The Public Service Alliance of Canada (the certified bargaining agent for the Canada Border Services Agency employees) and Treasury Board (the employer) were in the process of bargaining for the renewal of the second collective agreement - The Minister ordered a vote on the employer's last offer, in the public interest (Public Service Labour Relations Act, s. 183) - In support of its request to set the Minister's decision aside, the Alliance argued that the record before the Minister did not disclose any facts which would support the need to short-circuit the collective bargaining process and that the decision was therefore unreasonable - The Federal Court disagreed - First, there were facts before the Minister which could have led him to conclude that the parties might be at impasse over the summer months, when Parliament would be in recess - It would be difficult for Parliament to be recalled for the purpose of considering back-to-work legislation - Second, the Public Interest Commission report was unlikely to provide the basis for a settlement - Third, it was not unreasonable for the Minister to be concerned about the potential for a legal strike - Fourth, the Minster did not take contradictory positions - In the end result, the sole basis for setting the Minister's decision aside flowed from the denial of procedural fairness, which resulted in the Minister being deprived of information and submissions that might have impacted his decision - See paragraphs 77 to 82.

Labour Law - Topic 9718

Public service labour relations - Collective agreement - Negotiations, mediation and conciliation - Vote on employer's offer - The Public Service Alliance of Canada (the certified bargaining agent for the Canada Border Services Agency employees) and Treasury Board (the employer) were in the process of bargaining for the renewal of the second collective agreement - The Minister, under s. 183 of the Public Service Labour Relations Act, ordered a vote on the employer's last offer - On judicial review, the Alliance's arguments to support the existence of bias were primarily related to the fact that the Minister did not seek submissions from the Alliance - The Federal Court held that an informed person, after appropriate reflection, would not have an apprehension that the Minister was biased - The failure to provide the Alliance notice and an opportunity to make submissions did not demonstrate the existence of bias, as the right to be heard and the right to an unbiased decision-maker were two different aspects of procedural fairness - Moreover, given that this was the first time the Minister had exercised his authority under s. 183, there was no template for the applicable procedure - In the end result, the sole basis for setting the Minister's decision aside flowed from the denial of procedural fairness, which resulted in the Minister being deprived of information and submissions that might have impacted his decision - See paragraphs 83 to 87.

Cases Noticed:

Chopra v. Canada (Treasury Board) et al. (1999), 168 F.T.R. 273 (T.D.), refd to. [para. 30].

Armstrong v. Canada (Attorney General), [2005] F.T.R. Uned. 613; 141 A.C.W.S.(3d) 5; 2005 FC 1013, refd to. [para. 30].

Association of Universities and Colleges of Canada et al. v. Canadian Copyright Licensing Agency (2012), 428 N.R. 297; 2012 FCA 22, refd to. [para. 31].

Ochapowace First Nation et al. v. Canada (Attorney General) et al. (2007), 316 F.T.R. 19; 2007 FC 920, refd to. [para. 31].

Air Canada v. Toronto Port Authority et al. (2011), 426 N.R. 131; 2011 FCA 347, consd. [para. 35].

Syndicat catholique des employés de magasins de Québec Inc. v. Compagnie Paquet Inc., [1959] S.C.R. 206, refd to. [para. 37].

Ainscough et al. v. McGavin Toastmaster Ltd., [1976] 1 S.C.R. 718; 4 N.R. 618; 54 D.L.R.(3d) 1, refd to. [para. 37].

Rainbow Concrete Industries Ltd. v. International Union of Operating Engineers, Local 793 et al. (2011), 287 O.A.C. 176; 2011 ONSC 5979 (Div. Ct.), refd to. [para. 41].

Corner v. Ontario (Minister of Labour) - see Rainbow Concrete Industries Ltd. v. International Union of Operating Engineers, Local 793 et al.

Jamal v. Crown Employees Grievance Settlement Board et al. (2006), 221 O.A.C. 67 (Div. Ct.), refd to. [para. 41].

Alford v. Yukon et al. (2006), 229 B.C.A.C. 151; 379 W.A.C. 151; 273 D.L.R.(4th) 140; 2006 YKCA 9, refd to. [para. 41].

Cummins et al. v. Canada (Minister of Fisheries and Oceans) et al., [1996] 3 F.C. 871; 117 F.T.R. 309; 41 Admin. L.R.(2d) 151 (T.D.), refd to. [para. 44].

Fogo (Town) v. Newfoundland (2000), 190 Nfld. & P.E.I.R. 228; 576 A.P.R. 228; 23 Admin. L.R.(3d) 138 (Nfld. T.D.), refd to. [para. 44].

Friends of the Earth v. Canada (Governor-in-Council) et al. (2008), 336 F.T.R. 117; 299 D.L.R.(4th) 583; 2008 FC 1183, refd to. [para. 44].

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241; 83 D.L.R.(4th) 297, refd to. [para. 45].

Reference Re Canada Assistance Plan Act (B.C.) - see Reference Re Constitutional Question Act (B.C.).

Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources) et al., [1989] 2 S.C.R. 49; 97 N.R. 241; 61 D.L.R.(4th) 604, refd to. [para. 45].

Kelly et al. v. Canada (Attorney General), [2013] O.T.C. Uned. 1220; 226 A.C.W.S.(3d) 654; 2013 ONSC 1220, refd to. [para. 46].

Suresh v. Canada (Minister of Citizenship and Immigration, [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 48].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, appld. [para. 48].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 48].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 49].

Black v. Chrétian et al. (2001), 147 O.A.C. 141; 199 D.L.R.(4th) 228 (C.A.), refd to. [para. 49].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 52].

Satheesan v. Canada (Minister of Public Safety and Emergency Preparedness), [2013] F.T.R. Uned. 157; 227 A.C.W.S.(3d) 106; 2013 FC 346, refd to. [para. 52].

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241, refd to. [para. 53].

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 58].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 59].

Lameman et al. v. Cardinal et al. (1997), 138 F.T.R. 1 (T.D.), refd to. [para. 59].

Russo v. Canada (Minister of Transport, Infrastructure and Communities) (2011), 406 F.T.R. 49; 2011 FC 764, refd to. [para. 59].

Canadian National Railways v. Brotherhood of Locomotive Engineers (1984), 57 di. 55, refd to. [para. 65].

Canadian National Railways v. Brotherhood of Locomotive Engineers (1989), 79 di. 82; 90 CLLC 16010, refd to. [para. 65].

King v. Canada (Treasury Board), 2003 PSSRB 48, refd to. [para. 65].

Telus Communications Inc. v. Telecommunications Workers Union , [2001] C.I.R.B. No. 125, refd to. [para. 65].

Mobil Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; 163 N.R. 27; 115 Nfld. & P.E.I.R. 334; 360 A.P.R. 334, refd to. [para. 68].

Stenhouse v. Canada (Attorney General) (2004), 248 F.T.R. 248; 2004 FC 375, refd to. [para. 68].

Baires Sanchez et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 666; 207 A.C.W.S.(3d) 318; 2011 FC 993, refd to. [para. 68].

Halifax (Regional Municipality) v. Canada (Minister of Public Works and Government Services), [2012] 2 S.C.R. 108; 431 N.R. 10; 2012 SCC 29, refd to. [para. 72].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 72].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 84].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271; 89 D.L.R.(4th) 289, refd to. [para. 84].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 151 D.L.R.(4th) 193, refd to. [para. 84].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134; 75 D.L.R.(4th) 385, refd to. [para. 84].

Save Richmond Farmland Society et al. v. Richmond (Township) et al., [1990] 3 S.C.R. 1213; 116 N.R. 68; 75 D.L.R.(4th) 425, refd to. [para. 84].

Cojocaru v. British Columbia Women's Hospital and Health Center et al. (2013), 445 N.R. 138; 336 B.C.A.C. 1; 574 W.A.C. 1; 357 D.L.R.(4th) 585; 2013 SCC 30, refd to. [para. 86].

Royal Oak Mines Inc. v. Canada Labour Relations Board et al., [1996] 1 S.C.R. 369; 193 N.R. 81, refd to. [para. 91].

Murphy et al. v. Minister of National Revenue (2010), 367 F.T.R. 219; 2010 FC 448, refd to. [para. 95].

Thibodeau v. Air Canada et al. (2007), 375 N.R. 195; 2007 FCA 115, refd to. [para. 95].

Statutes Noticed:

Public Service Labour Relations Act, S.C. 2003, c. 22, sect. 183 [para. 2].

Counsel:

Andrew Raven and Wassim Garzouzi, for the applicant;

Caroline Engmann, for the respondent.

Solicitors of Record:

Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l., Ottawa, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application for judicial review was heard at Ottawa, Ontario, on July 31, 2013, before Gleason, J., of the Federal Court, who delivered the following judgment and reasons for judgment, dated August 30, 2013.