Date: 20010531
Docket: T-205-00
Neutral Citation: 2001 FCT 568
BETWEEN:
PUBLIC SERVICE ALLIANCE OF CANADA
Applicant
- and -
HER MAJESTY IN RIGHT OF CANADA
as represented by TREASURY BOARD
and COMMISSIONER OF THE CANADIAN GRAIN COMMISSION
Respondents
REASONS FOR ORDER AND ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of the Commissioner of the Canadian Grain Commission (purportedly acting under the authority of Her Majesty in Right of Canada, as represented by the Treasury Board), dated December 21, 1999, which decided to place 69 employees of its Thunder Bay facility, without their consent, on "off-duty status" without pay for 3 months commencing on January 10, 2000, until March 3, 2000.
FACTS
[2] The applicant, the Public Service Alliance of Canada, is an employee organization within the meaning of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, as amended (PSSRA), and is certified by the Public Service Staff Relations Board (PSSRB) as bargaining agent for over 100,000 federal public service employees, including those 69 employees of the Canadian Grain Commission who were placed on "off-duty status".
[3] The Canadian Grain Commission is listed in Part I of Schedule I of the PSSRA, and as a result, the Treasury Board is the employer of those employees, pursuant to subsection 2(a) of the PSSRA.
[4] The Thunder Bay facility provides services to the grain industry at the Port of Thunder Bay. Grain is shipped from the West by rail to Thunder Bay and is then transported by ship through the St. Lawrence seaway.
[5] Employees at the Thunder Bay facility are involved in the inspection and weighing of grain shipments as they are received into the terminals and as they are loaded out from the terminals onto ships. Employees also check shipments for infestation, manage the documentation of grain shipments and conduct audits of terminal stocks.
[6] The Canadian Grain Commission employs 105 indeterminate, full-time employees continuously throughout the year at its Thunder Bay facility. The Canadian Grain Commission also employs seasonal employees at its Thunder Bay facility only for those dates on which the St. Lawrence seaway is open (from early April to late December) and term employees who are hired to fill in where there are increased volumes of grain being shipped.
[7] The applicant is the certified bargaining agent of 89 indeterminate, full-time employees (referred to as "operational employees") who fall within three occupational groups, namely the Primary Products Inspector (PI), the Engineering and Scientific Support (EG), and the General Labour - Grain Handler and Weigher (GL-GHW).
[8] The St. Lawrence Seaway is closed for shipping in winter months (from late December to late March) and, as such, work volumes and staffing requirements decrease.
[9] The work available depends on the rail program announced by the Canadian Wheat Board which usually continues to ship grain by rail during the winter period. In the Fall of 1999, the Canadian Wheat Board decided not to ship grain by rail through Thunder Bay in the Winter of 2000. The Canadian Wheat Board's decision was communicated to the Canadian Grain Commission on December 6, 1999.
[10] Due to reduced volumes of grain expected through the port, the Canadian Grain Commission sent a letter dated December 21, 1999, to 69 "operational employees" informing them that they were placed on "off-duty status", beginning January 10, 2000, with an estimated return date of April 3, 2000.
[11] Employees placed on "off-duty status" continued to be employed by the Canadian Grain Commission but were temporarily allocated to be not at work, a no-work, no-pay situation.
[12] The Canadian Grain Commission called back certain "operational employees" within a couple of weeks of the implementation, to work for periods of one or two weeks. In the end, all "operational employees" were returned to work by March 13, 2000.
[13] As a result of the respondents' decision to place certain employees on "off-duty status" in the Winter of 2000, the applicant was deprived of union dues payable by all employees who worked more than ten days per month.
[14] At the outset of the hearing, the respondents raised an objection regarding the applicant's standing to bring this application for judicial review and this Court's jurisdiction to consider this application.
[15] The following reasons will only address these issues.
ISSUES
Does the applicant have standing to bring this application for judicial review?
Should this application for judicial review be struck as a result of the statutory grievance procedure provided for under the PSSRA?
RELEVANT PROVISIONS
[16] The relevant provisions of the PSSRA are found in subsections 91(1), 92(1) and 99(1):
| 91(1) Where any employee feels aggrieved
(a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award, or
(b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii).
in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act. [Emphasis added].
92 (1) Where an employee has presented a grievance, up to an including the final level in the grievance process, with respect to
(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,
(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),
(i) disciplinary action resulting in suspension or a financial penalty, or
(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or
(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty, and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication. [Emphasis added].
99(1) Where the employer and a bargaining agent have executed a collective agreement or are bound by an arbitral award and the employer or the bargaining agent seeks to enforce an obligation that is alleged to arise out of the agreement or award, and the obligation, if any, is not one the enforcement of which may be the subject of a grievance of an employee in the bargaining unit to which the agreement or award applies, either the employer or the bargaining agent may, in the prescribed manner, refer the matter to the Board. [Emphasis added].
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91. (1) Sous réserve du paragraphe (2) et si aucun autre recours administratif de réparation ne lui est ouvert sous le régime d'une loi fédérale, le fonctionnaire a le droit de présenter un grief à tous les paliers de la procédure prévue à cette fin par la présente loi, lorsqu'il s'estime lésé_:
a) par l'interprétation ou l'application à son égard_:
(i) soit d'une disposition législative, d'un règlement -- administratif ou autre --, d'une instruction ou d'un autre acte pris par l'employeur concernant les conditions d'emploi,
(ii) soit d'une disposition d'une convention collective ou d'une décision arbitrale;
b) par suite de tout fait autre que ceux mentionnés aux sous-alinéas a)(i) ou (ii) et portant atteinte à ses conditions d'emploi.
92. (1) Après l'avoir porté jusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief portant sur_:
a) l'interprétation ou l'application, à son endroit, d'une disposition d'une convention collective ou d'une décision arbitrale;
b) dans le cas d'un fonctionnaire d'un ministère ou secteur de l'administration publique fédérale spécifié à la partie I de l'annexe I ou désigné par décret pris au titre du paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques;
c) dans les autres cas, une mesure disciplinaire entraînant le licenciement, la suspension ou une sanction pécuniaire.
99. (1) L'employeur et l'agent négociateur qui ont signé une convention collective ou sont liés par une décision arbitrale peuvent, dans les cas où l'un ou l'autre cherche à faire exécuter une obligation qui, selon lui, découlerait de cette convention ou décision, renvoyer l'affaire à la Commission, dans les formes réglementaires, sauf s'il s'agit d'une obligation dont l'exécution peut faire l'objet d'un grief de la part d'un fonctionnaire de l'unité de négociation visée par la convention ou la décision.
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SUBMISSIONS OF THE PARTIES
Applicant
[17] The applicant submits that the only real issue before this Court relates to its standing to bring this application for judicial review. If this Court finds that the applicant is directly affected and has standing, there is no issue with respect to the administrative mechanism for redress provided for in the PSSRA because section 91 is limited to employees. Therefore, the applicant would be denied recourse to the provisions of the PSSRA.
a) Standing
[18] The applicant submits that it is directly affected by the matter in respect of which relief is sought, within the meaning of subsection 18.1(1) of the Federal Court Act, R.S.C. 1985, c. F-7.
[19] The applicant argues that, as a certified bargaining agent, it has an independent authority to represent members of the bargaining unit for which it is certified. That authority extends to a host of issues which may impact upon individual employees or the bargaining unit at large. The only express limit on the applicant's authority to act as a certified bargaining agent is contained in section 10 of the PSSRA, which imposes upon all employee organizations a duty of fair representation.
[20] It would be an error of law to limit its representation rights to collective bargaining in the public service and other activities specifically permitted under the PSSRA, even though its status flows from this legislation.
[21] The applicant is entitled to challenge the respondents' decision where the interests at stake are broader than those of individual employees and affect the interests of the entire bargaining unit, even where such decision has a substantial effect on individual employees or may form the subject matter of an individual employee grievance under section 91 of the PSSRA.
[22] It has a direct interest in this matter by reason of its loss of union dues which are only payable as a percentage of paid wages. The respondents' decision to place certain employees on "off-duty status" deprives the applicant of its ability to collect union dues, a major source of its financial stability.
[23] The applicant emphasizes that the respondents' decision had and will continue to have a substantial detrimental impact on the integrity of the bargaining unit that it represents. The bargaining unit is the essential basis for the applicant's status as bargaining agent and is the primary focus of its statutory obligations.
[24] Further, the issue of an employer's right to unilaterally place employees on "off-pay status" is a matter which could be raised in a variety of employment contexts throughout the broader public service. The impact of this application for judicial review therefore relates not only to employees of the Canadian Grain Commission but also to employees across the public service.
[25] Finally, the applicant's independent status on this issue is readily apparent from the parties' conduct. The applicant submits that discussions and consultations with the respondents regarding the "off-pay status" are clear and telling indicia that the respondents themselves view the applicant as having an interest in the workplace which is separate and apart from the individual employees affected by their decision.
b) Court's Jurisdiction
[26] The applicant submits that it is clear from the express wording of section 91 of the PSSRA that a certified bargaining agent is precluded from filing a grievance under this section, in its own name. The issues raised by this application for judicial review do not involve the enforcement of an obligation arising under a collective agreement. Consequently, the applicant is not entitled to file a reference to the PSSRB pursuant to section 99 of the PSSRA. Therefore, the administrative mechanisms for redress established by Parliament under the PSSRA are not open to the applicant.
[27] The applicant relies on the test developed in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, for the proposition that this Court ought to decline jurisdiction only where a party has access to an independent third party decision-maker provided for by statute or by agreement. The applicant submits that it does not have access to any administrative mechanism for redress, and therefore it has the right to bring this application for judicial review.
[28] The applicant underlines that, pursuant to the jurisprudence which confirmed the Weber test, there must be some basis in the statute or collective agreement for the party to invoke the non-Court based mechanism for redress. No such basis exists in the present case, and therefore the Court has full authority to consider this application for judicial review.
[29] The limited nature of the administrative mechanism for redress contained in section 91 of the PSSRA provides solely for the ability of an individual employee to grieve against various actions of an employer through the grievance procedure which, ultimately, is comprised of decision-makers who are the employees' superiors. This section does not provide for any independent redress and amounts to no more than bringing a complaint of employer action to the attention of the employer itself. The applicant submits that clear statutory direction must be present in order to deprive it of its ability to bring this application for judicial review for that reason.
[30] The applicant argues that the alternative administrative mechanism for redress must be capable of producing some real redress and that it must deal meaningfully and effectively with the substance. Therefore, in considering the Court's jurisdiction to hear a particular matter, it is the effectiveness of the administrative mechanism for redress which is determinative. It would be an error of law to compel a party to proceed in a forum where no effective relief is available and where such effective relief could be obtained in some alternative forum.
Respondent
a) Standing
i) Section 91 of the PSSRA
[31] The respondents argue that their decision to place certain employees on "off-duty status" is a matter that is covered by the grievance procedure provided for by section 91 of the PSSRA (and both collective agreements). Paragraph 91(1)(b) of the PSSRA would embrace any challenge to the decision to place the 69 "operational employees" on "off-duty status", i.e., the impugned decision is an "occurrence or matter affecting the terms and conditions of employment of the employee."
[32] The applicant cannot avoid the dispute resolution provisions of the PSSRA (and both collective agreements) by way of collateral application under sections 18 and 18.1 of the Federal Court Act, by naming itself as a party, and claiming that, as a result, there is no recourse to the administrative mechanism for redress in place under section 91 of the PSSRA.
[33] The issue of standing should not be determined in isolation of the PSSRA, which has been characterized by this Court as a "full code for the resolution of labour disputes". The statutory scheme provides employees with a bifurcated dispute resolution mechanism that excludes their certified bargaining agent from party status, except in limited circumstances, such as references under section 99 of the PSSRA.
[34] The applicant should not be able to avoid the limitations provided for in the PSSRA by side-stepping the legislation through a collateral application for judicial review by naming itself as applicant on behalf of the 69 "operational employees".
ii) Section 99 of the PSSRA
[35] The respondents submit that the administrative mechanism for redress provided for in section 99 of the PSSRA was available to the applicant in the case at bar. Pursuant to this section, a certified bargaining agent may refer a matter to the PSSRB if an issue is one of collective agreement enforcement, and it is not one the enforcement of which may be the subject of a grievance of an individual employee.
[36] The allegations of the unlawful denial of union dues could have been referred to the PSSRB under section 99 of the PSSRA. The collection of union dues is provided for in both collective agreements covering the "operational employees".
[37] In the alternative, any impact on the applicant was indirect and not within the scope of section 18.1 of the Federal Court Act.
iii) Representational Capacity Beyond the PSSRA
[38] The respondents take issue with the applicant's position that the courts have recognized an authority, independent of the PSSRA, for a certified bargaining agent to represent its members, that its representational capacity extends beyond representing its members and extends to acquiring party status on their behalf. The applicant is not incorporated as a trade union / bargaining agent and its representational authority stems exclusively from the PSSRA.
b) Court's Jurisdiction
i) Independent third party decision-maker
[39] The respondents submit that an independent third party decision-maker is not required under the PSSRA to apply the Weber test. The fact that the applicant's dispute is subject to being decided under the grievance process, rather than by an adjudicator, does not deprive the affected employees of a forum for the resolution of their grievances. In determining whether an adjudicative body has jurisdiction to hear a dispute, a decision-maker must adhere to the intention of the legislature as set out in the legislative scheme, or schemes, governing the parties.
[40] The PSSRA establishes a comprehensive scheme for the resolution of employment-related disputes between employees of the federal public service and their employer. The absence of mandatory language does not make the scheme any less comprehensive. The right to bring a grievance encompasses virtually all employment-related matters.
[41] Within this comprehensive scheme, it is clear that Parliament has envisaged a much narrower role for adjudication than for grievances. It has created a bifurcated dispute resolution mechanism, whereby most complaints may be submitted as grievances under section 91 of the PSSRA but only some are referable to adjudication under section 92 of the PSSRA. This scheme has been agreed to through collective bargaining and as such is applicable to the 69 "operational employees".
[42] The comprehensiveness of the PSSRA scheme was affirmed by the Federal Court of Appeal in Johnson-Paquette v. Canada, [2000] 253 N.R. 305 (F.C.A.). The Federal Court of Appeal also specifically held that the differences between the scheme of the PSSRA and the scheme considered by the Supreme Court of Canada in Weber did not take the PSSRA outside the exclusive jurisdiction model. The policy grounds on which the Court had based its decision in Weber were "extant and applicable to the labour dispute resolution processes provided for under the PSSRA".
[43] The Federal Court of Appeal recognized two exceptions to the exclusivity of the PSSRA scheme: (1) the residual jurisdiction of the courts, based on their special powers, as for example the granting of injunctive relief, and (2) the requirement in subsection 91(1) of the PSSRA that employees have recourse to specialized administrative procedures for redress, where such exist. None of these exceptions apply in this case.
ii) Remedial Deficiencies of the Grievance Procedure
[44] For the respondents, the grievance procedure could provide an effective remedy in the present case. The legality of the respondents' decision to place certain employees on "off-duty status" is a question of law that, if grieved, could be determined, pursuant to the provisions of both applicable collective agreements, by the deputy head or his/her representative.
[45] The respondents note that the decision of this final level decision-maker is subject to judicial review. The suggestion that the grievance procedure provides an ineffective remedy is inaccurate. In fact, the grievance could be subject to third party review by way of application for judicial review.
ANALYSIS
a) Standing
[46] With respect to the applicant's standing, section 18.1 of the Federal Court Act provides that an application may be made "[...] by anyone directly affected by the matter in respect of which the relief is sought."
[47] For the reasons below, I find that the applicant is not directly affected by the respondents' decision to place "operational employees" on "off-duty status".
[48] The respondents' decision falls within the matters covered by the grievance procedure provided for by section 91 of the PSSRA (and both collective agreements) because such decision affects the terms and conditions of employment of the 69 "operational employees".
[49] The PSSRA scheme provides the "operational employees" with a bifurcated dispute resolution mechanism that excludes the applicant from party status in the grievance procedure, except in limited circumstances, such as a reference under section 99 of the PSSRA.
[50] Therefore, the applicant cannot avoid the limitations provided for in the PSSRA by side-stepping the legislation through a collateral application for judicial review by naming itself as a party, and claiming that, as a result there is no recourse to the dispute resolution mechanism in place under the PSSRA.
[51] In addition, pursuant to section 99 of the PSSRA, the applicant could refer the matter to the PSSRB because the collection of union dues (or its unlawful denial as a result of the respondents' decision) is provided for in both collective agreements, and such issue cannot be enforced through the filing of an individual employee grievance. (See, e.g., Canadian Air Traffic Control Association v. Treasury Board, [1991] C.P.S.S.R.B. No. 163).
[52] I cannot find any support in the decisions referred to by the applicant for its assertions that it has an independent authority to represent members of the bargaining unit extending to a host of issues, which may impact upon individual employees or the bargaining unit at large.
[53] The first one referred to by the applicant is Linetsky v. Resanovic, [1985] F.C.J. No. 417 (F.C.A.), which dealt with the scope of sections 6 (lawful activities of the employee organization ) and 8 (employer participation in employee organization) of the PSSRA, and more particularly, whether the employer could threaten the president of the local union with disciplinary action for seeking to represent, as counsel, a union member before a non-PSSRA related hearing. I do not take this decision to read that the applicant's representation rights as a certified bargaining agent extends to a host of employment issues.
[54] The second decision is Canada (Attorney General) v. Public Service Alliance of Canada, [1990] F.C.J. No. 1069 (F.C.A.), which dealt with the PSSRB's jurisdiction to determine a reference submitted to it under section 99 of the PSSRA. The Public Service Alliance of Canada alleged that the employer violated the Work Force Adjustment Policy (forming part of the collective agreement) by contracting work outside of the relevant bargaining unit. I do not consider this decision to stand for the proposition that the applicant has an interest that is independent from that of the individual employees it represent.
[55] The last decision referred to is Jacques and Public Service Alliance of Canada, [1995] C.P.S.S.R.B. No. 38 (PSSRB), dealt with an unfair representation complaint under section 23 of the PSSRA against the Public Service Alliance of Canada by one of its members. The PSSRB reiterated that a certified bargaining agent has a discretion in the manner in which it represents its members who have competing interests, subject to such decision not being made arbitrarily, discriminatorily or in bad faith. Again, this decision does not support the applicant's proposition that a certified bargaining agent has the independent authority to represent its members.
b) Court's Jurisdiction
[56] I will now refer to the Weber test to shed some light on this Court's jurisdiction over the matter.
[57] In Weber, the Supreme Court of Canada had to determine whether a binding arbitration provision under the Ontario Labour Relations Act, R.S.O. 1990, c. L.2, ousted the court's jurisdiction over an action, where an employee filed a grievance for violation of the collective agreement and commenced an action based on tort and breach of Charter rights in relation to the employer's hiring of private investigators to inquire about his extended sick leave.
[58] The Supreme Court of Canada adopted the exclusive jurisdiction model, whereby the arbitrator has exclusive jurisdiction over a dispute which, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement (at paras. 50, 52, 54, 57 and 58):
[...] if the difference between the parties arises from the collective agreement, the claimant must proceed by arbitration and the courts have no power to entertain an action in respect of that dispute.
[...]
The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.
[...]
This approach does not preclude all actions in the courts between employer and employee. Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts [...]. Additionally, the courts possess residual jurisdiction based on their special powers, as discussed by Estey J. in St. Anne Nackawic, supra.
[...]
It might occur that a remedy is required which the arbitrator is not empowered to grant. In such a case, the courts of inherent jurisdiction in each province may take jurisdiction. This Court in St. Anne Nackawic confirmed that the New Brunswick Act did not oust the residual inherent jurisdiction of the superior courts to grant injunctions in labour matters (at p. 724). [...] What must be avoided, to use the language of Estey J. in St. Anne Nackawic (at p. 723), is a "real deprivation of ultimate remedy".
To summarize, the exclusive jurisdiction model gives full credit to the language of s. 45(1) of the Labour Relations Act. It accords with this Court's approach in St. Anne Nackawic. It satisfies the concern that the dispute resolution process which the various labour statutes of this country have established should not be duplicated and undermined by concurrent actions. It conforms to a pattern of growing judicial deference for the arbitration and grievance process and correlative restrictions on the rights of parties to proceed with parallel or overlapping litigation in the courts [...].[Emphasis added].
[59] The Weber test has been followed since and has been recently applied by the Supreme Court of Canada in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, where the Court had to decide which of two competing statutory regimes should govern a dispute regarding police discipline and dismissal. The Court stated that (at paras. 34 and 39):
[t]he underlying rationale for the approach to determining jurisdiction set out in Weber, supra, was based, in part, on the recognition that it would do violence to a comprehensive statutory scheme, designed to govern all aspects of the relationship between parties in a labour relations setting, to allow disputes to be heard in a forum other than that specified in the scheme [...].
[...]
The analysis [in Weber] applies whether the choice of forums is between the courts and a statutorily created adjudicative body, or between two statutorily created bodies. The key question in each case is whether the essential character of a dispute, in its factual context, arises either expressly or inferentially from a statutory scheme. In determining this question, a liberal interpretation of the legislation is required to ensure that a scheme is not offended by the conferral of jurisdiction on a forum not intended by the legislature. [Emphasis added].
[60] In the present matter, I find that the PSSRA establishes a comprehensive scheme for the resolution of employment-related disputes between employees of the federal public service and their employer. I reached the same conclusion in Johnson-Paquette v. Canada (1999), 159 F.T.R. 42 at paras. 20, 21 and 23:
The plaintiff submits that since her claim is not covered by s.92 she is denied access to adjudication and that this denial should entitle her to bring her claim in the Federal Court. This argument must fail based on the wording of s. 96(3):[...].
In summary, the collective agreement specifies that the proper procedure is that provided under the PSSRA, which constitutes a complete grievance procedure. If the grievor is not satisfied with the result of the grievance brought under s. 91, and the matter is covered by s. 92, he or she may seek adjudication. If the matter is not covered by s. 92, the decision is final, according to s. 96(3). Regardless of the outcome, decisions made either by the grievance officer under s. 91 or by the adjudicator under s. 92 are subject to judicial review in the Federal Court pursuant to s. 18.1 of the Federal Court Act .
[...]
In the present case, the plaintiff has not exhausted the grievance procedure provided under the PSSRA and the resulting judicial review. She is attempting to seek judicial review of the grievance officer's decision by way of action for damages in tort - this she cannot do. [Emphasis added].
[61] The Federal Court of Appeal upheld the decision and, with respect to the comprehensiveness of the PSSRA, the Court noted that ([2000] 253 N.R. 305 (F.C.A.) at para. 10):
[...] Parliament has, through legislation, adopted what is obviously intended as a full code for the resolution of labour disputes in a given sector of activity and has made the outcome of the legislated process final and binding on those concerned, it would offend the legislative scheme to permit recourse to ordinary courts which have not been assigned with these tasks.
[62] As noted by the respondents, the Federal Court of Appeal concluded that the differences between the PSSRA scheme and the scheme considered by the Supreme Court of Canada in Weber did not take the PSSRA outside the exclusive jurisdiction model. The policy grounds on which the Court had based its decision in Weber were "extant and applicable to the labour dispute resolution processes provided for under the PSSRA" (at para. 8).
[63] In the present matter, the two collective agreements covering the "operational employees" and the legislation in place provide for the resolution of such workplace dispute, which affects the terms and conditions of employment of the "operational employees".
[64] It is clear that this matter could be grieved by the "operational employees" pursuant to section 91 of the PSSRA. In addition, the applicant could also refer the matter to the PSSRB for consideration of its alleged unlawful denial of union dues (as a result of the respondents' decision).
[65] Therefore, the applicant cannot seek to circumvent the statutory grievance procedure provided in the PSSRA by bringing an application for judicial review challenging the legality of the respondents' decision.
[66] For all these reasons, I find that the applicant does not have standing to bring this application and this Court does not have jurisdiction to hear the matter. Given my conclusion on this issue, I need not go further.
[67] This application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
May 31, 2001.
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