Date: 20120315
Docket: A-297-11
Citation: 2012 FCA
91
CORAM: BLAIS C.J.
EVANS J.A.
LAYDEN-STEVENSON J.A.
BETWEEN:
IRENE
BREMSAK
Applicant
and
THE PROFESSIONAL INSTITUTE OF
THE PUBLIC SERVICE OF CANADA
KATHLEEN KERR, GEOFF KENDELL,
STEPHEN Y. LEE, SIDDIQ ANSARI,
GARY CORBETT, DON BURNS,
DAVID GRAY, DAN JONES,
EVAN HEIDINGER, AL RAVJIANI,
HELENE ROGERS, MARILYN BEST,
ROBERT BOWIE-REED, YVON BODEUR,
RICHARD DEPUIS, ROBERT HUNTER,
PASCAL JOSEPH, SEAN O’REILLY,
JOE PODREBARAC, NITA SAVILLE,
GEOFFREY GRENVILLE-WOOD,
ISABELLE ROY, QUINTON JANSEN,
TERRY PETERS, STEPHANE CHEVALIER,
REJEAN SIMARD
Respondents
Heard at Vancouver, British
Columbia, on March 7, 2012.
Judgment delivered at Ottawa, Ontario, on March
15, 2012.
REASONS FOR JUDGMENT BY: EVANS
J.A.
CONCURRED
IN BY: BLAIS
C.J.
LAYDEN-STEVENSON J.A.
Date: 20120315
Docket: A-297-11
Citation: 2012 FCA 91
CORAM: BLAIS
C.J.
EVANS
J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
IRENE BREMSAK
Applicant
and
THE PROFESSIONAL INSTITUTE OF
THE PUBLIC SERVICE OF CANADA
KATHLEEN KERR, GEOFF KENDELL,
STEPHEN Y. LEE, SIDDIQ ANSARI,
GARY CORBETT, DON BURNS,
DAVID GRAY, DAN JONES,
EVAN HEIDINGER, AL RAVJIANI,
HELENE ROGERS, MARILYN BEST,
ROBERT BOWIE-REED, YVON BODEUR,
RICHARD DEPUIS, ROBERT HUNTER,
PASCAL JOSEPH, SEAN O’REILLY,
JOE PODREBARAC, NITA SAVILLE,
GEOFFREY GRENVILLE-WOOD,
ISABELLE ROY, QUINTON JANSEN,
TERRY PETERS, STEPHANE CHEVALIER,
REJEAN SIMARD
Respondents
REASONS FOR JUDGMENT
EVANS J.A.
Introduction
[1]
Irene
Bremsak has brought an application for judicial review to set aside a decision
of the Public Service Labour Relations Board (Board), dated July 22, 2011 and
reported at 2011 PSLRB 95. In that decision, the Board dismissed four
complaints filed by Ms Bremsak under the Public Service Labour Relations
Act, S.C. 2003, c. 22, s. 2 (Act), and five applications for the Board’s
consent to institute prosecutions for breaches of the Act (sections 200, 202,
203, and 205). The complaints and consent applications named various
respondents: Ms Bremsak’s union (the Professional Institute of the Public
Service of Canada (PIPSC)), as well as some of its members and officers.
[2]
The Board
dismissed them all, on the ground that they were more appropriately dealt with
in hearings currently being held by the Board, or in contempt proceedings
brought by Ms Bremsak in the Federal Court. The Board’s essential reason for
its decision was that, in these circumstances, adjudicating numerous complaints
arising from essentially the same subject matter, and involving many of the
same parties, would serve “no legitimate labour relations purpose” (at para.
46).
[3]
In my view,
the Board made no reviewable error in reaching its decision. First, the Board’s
process was not unfair. Second, its decision to dismiss the complaints and the
consent applications in order to prevent the unnecessary duplication of
proceedings was not an unreasonable exercise of the Board’s statutory
discretion to control it own process.
Background
[4]
Ms Bremsak
has been locked in a bitter five-year battle with PIPSC and some of its
officers and members. No one emerges from this sorry tale with much credit:
intransigence on one side has been met by defiance from the other. Having started
with a relatively minor incident, the dispute should have been settled long
ago.
[5]
Instead,
the conflict has escalated, and has given rise to numerous trips to the Board. Ms
Bremsak initiated some, PIPSC initiated others; some have resulted in wins for
Ms Bremsak, others have gone PIPSC’s way. Not content to stop at the Board, the
parties have also instituted a flurry of proceedings in the Federal Courts.
[6]
Of the
many decisions rendered by the Board throughout this dispute, the decision most
relevant to the decision under review is that ordering PIPSC to reinstate Ms
Bremsak to office. The Board found the union policy under which she had been
temporarily suspended from office to be invalid: 2009 PSLRB 103 (reinstatement
decision).
[7]
PIPSC
refused to comply with this order. It argued that it could not reinstate Ms
Bremsak to office because it suspended her union membership after the Board
issued the reinstatement decision. Justice Lemieux of the Federal Court
rejected this defence of lawful authority and found PIPSC in contempt: 2012 FC
213. PIPSC is appealing the contempt decision to this Court.
[8]
The four
complaints that were before the Board in the present case essentially concern
two issues. First, the impropriety of PIPSC’s application to Ms Bremsak of the
policy that the Board found to be invalid in the reinstatement decision.
Second, conduct by union committees and individuals resulting from the union’s
non-compliance. A prosecution consent application is attached to each of these
complaints. Ms Bremsak says that her fifth consent application relates not to
these complaints, but to her original complaint that led to the reinstatement
decision.
[9]
She says
that she has made the present complaints and consent applications in an attempt
to have the reinstatement decision enforced, and to ensure that those who have
done her wrong are held accountable for their actions. She is challenging the
validity of the Board’s dismissal of the complaints and consent applications,
on the grounds of procedural unfairness and abuse of discretion.
[10]
Procedural
fairness: The
Board exercised its broad discretion under section 41 of the Act to deal with
the complaints without an oral hearing. The Board’s procedural choice is
entitled to considerable judicial deference: Boshra v. Canadian Association
of Professional Employees, 2011 FCA 98, 415 N.R. 77 at paras. 14-15. At the
hearing of her application for judicial review, Ms Bremsak stated that she was
no longer alleging that the Board breached the duty of procedural fairness by
failing to afford her an oral hearing.
[11]
Rather,
her procedural fairness argument turns on the fact that the Board did not
render its decision until July 2011, nearly two years after she had filed her
complaints and consent applications. Given the length of this delay, Ms Bremsak
argued that the Board ought not to have dismissed her complaints without
indicating when it would make its decision and providing her with an
opportunity to add new information to the representations made when she filed
her complaints.
[12]
In my
view, this allegation does not constitute procedural unfairness. As she
conceded, Ms Bremsak did not submit evidence to the Board that it refused to
consider. She stated that she was concerned about the Board’s delay in making a
decision, but the Board did not reply to her inquiries. Nonetheless, she took
no proactive steps to submit to it additional information that she thought was
relevant to her complaints and consent applications.
[13]
I
appreciate that Ms Bremsak was representing herself. However, she had already
acquired considerable experience with Board proceedings. I would also add that
the information that Ms Bremsak says she would have submitted to the Board if
she had been given the opportunity has little if any relevance to the
disposition of her complaints and consent applications.
[14]
On the
facts of this case, the duty of fairness did not require the Board to advise Ms
Bremsak when it was going to render its decision or to invite her to supplement
her representations. Nor is there any basis in the record for concluding that
the time taken by the Board to render its decision in and of itself invalidated
its dismissal of her complaints.
[15]
Abuse
of discretion: The
principal ground on which Ms Bremsak challenged the Board’s dismissal of her
complaints and consent applications was that the Board’s duty to administer the
Act (section 36) requires it to deal with the merits of every complaint within
its jurisdiction. She argues that her four complaints alleged fresh breaches of
the Act by the individuals she named as respondents, and that it was the duty
of the Board to protect complainants from the kinds of recurring unfair labour
practices to which she had been subject. Accordingly, the Board should have
adjudicated the merits of her complaints and consent applications.
[16]
She
further argued that the fact that the complaints may have overlapped with other
proceedings did not justify the Board’s decision not to determine their merits.
Her complaints demonstrated a pattern of misconduct that would strengthen her
applications for the Board’s consent to prosecute those who had breached the sections
of the Act that can give rise to criminal charges.
[17]
Despite
the clarity of Ms Bremsak’s argument, and the forcefulness of her presentation,
I am unable to agree.
[18]
Determining
the applicable standard of review is the starting point for any analysis of a
challenge to a decision by an administrative tribunal. On the basis of the
following considerations, it is clear that unreasonableness is the standard of
review applicable in this case.
[19]
First,
subsection 51(1) of the Act contains a strong preclusive clause limiting
judicial review of the Board’s decisions. Second, the questions in dispute in
this application are the Board’s exercise of its discretion and the
interpretation of the Act, the Board’s enabling statute. Third, the Board’s
labour relations expertise is relevant to its determination of these questions.
Fourth, minimizing the scope of judicial review advances the underlying
statutory objective of ensuring efficient and expeditious decision-making by
the Board in order to promote good labour relations.
[20]
Thus, in
order to succeed in her application, Ms Bremsak must establish that the Board’s
decision was unreasonable. Unreasonableness is determined by considering
whether the reasons given by a tribunal, or those that it could have given,
provide a cogent and transparent justification for its decision. A reviewing
court must also consider whether the decision itself falls within a range of acceptable
outcomes reasonably open to the tribunal on the facts and the law.
[21]
I do not
accept Ms Bremsak’s arguments that the Board’s decision in this case was
unreasonable. In my view, it was reasonable for the Board to conclude that it
has a statutory discretion to dismiss complaints without deciding their merits
in order to prevent a multiplicity of proceedings. Its exercise of that
discretion on the facts of the present case was similarly reasonable.
[22]
As an
adjudicative administrative tribunal, the Board has an implicit discretion to
control its own process, subject to the duty of fairness and any statutory
limitations on its powers: Prassad v. Canada (Minister of Employment and
Immigration),
[1989] 1 S.C.R. 560 at 568-69. In addition, section 36 confers on the Board the
powers that are “incidental to the attainment of the objects of this Act”. In
my view, it was reasonable for the Board to have decided that it could dismiss
complaints without adjudicating their merits when to do so would unduly duplicate
and complicate its proceedings, and thereby serve no “legitimate labour
relations purpose” (at para. 46).
[23]
Contrary
to Ms Bremsak’s argument, the Board’s general statutory responsibility to
administer the Act is not inconsistent with the existence of an implicit
discretion to control its own process by dismissing complaints on the ground
that their substance will be better addressed in other proceedings. Without
this discretion, the Board’s docket could be overwhelmed. It must be able to
manage its caseload in order to ensure that limited resources are used in a
manner that enables it to discharge its responsibilities for the efficient
resolution of labour-related disputes.
[24]
Nor was
the Board’s dismissal of Ms Bremsak’s complaints an unreasonable exercise of
this discretion. These complaints do contain allegations of new instances of
misconduct. However, they arise from the same subject matter as complaints that
have already been decided, or are being litigated before the Board or in the
Federal Courts: Ms Bremsak’s temporary suspension from union offices under an invalid
policy, and PIPSC’s failure to comply with the reinstatement decision.
[25]
As the
Board pointed out, the reinstatement decision settled the question of the
validity of both the policy and her suspension. The enforcement of that
decision is the subject of the contempt proceedings. The Board is also
currently hearing other complaints by Ms Bremsak concerning a harassment
complaint by PIPSC members, and the validity of her suspension from membership
in the union.
[26]
The mere
possibility that an adjudication of the merits of the complaints in Ms
Bremsak’s favour might have improved her prospects of obtaining the Board’s
consent to prosecution does not render its decision unreasonable.
[27]
As for the
dismissal of the consent applications, a prosecution may only be brought with
the consent of the Board in relation to a well-founded complaint of a breach of
specified provisions of the Act. Since the Board dismissed the complaints to
which four of the applications were related, it was reasonable, if not inevitable,
for the Board to dismiss those consent applications as well.
[28]
Ms Bremsak
says that her fifth consent application was not linked to these complaints, but
related to her original complaint that led to the reinstatement decision.
Accordingly, she says, the Board erred in dismissing it on the same ground as
the other applications.
[29]
Even if
she is correct on this point, this is a case where the Court should take up the
invitation of the Supreme Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at para. 48, and consider the reasons that the Board could have offered for
dismissing the fifth consent application. In my view, there were good reasons
that the Board could have given for its decision on this issue and, in the
circumstances of this case, it would be unduly formalistic to remit the matter
to the Board for re-determination. Nothing will be gained by the Court’s adding
another round of unnecessary litigation to a dispute that has already been
bedevilled by a proliferation of administrative and judicial proceedings.
[30]
Like the
Ontario Labour Relations Board, the Board has stated that consent to prosecute
is very rarely given. Criminal proceedings are authorized only in the most extraordinary
situations, because of the serious legal consequences for those prosecuted, and
the negative effects that a criminal prosecution is likely to have on good
industrial relations: see Quadrini v. Canada Revenue Agency, 2008 PSLRB
37 at para. 67; Orbine v. Service Employees International Union, [2011]
O.L.R.D. No. 1695, 197 C.L.R.B.R. (2d) 189 at para. 27.
[31]
In my
view, there is no practical possibility that the Board would have consented to
the prosecution of PIPSC and the named individuals for suspending Ms Bremsak
from her union offices under the policy that the Board’s reinstatement decision
held invalid. That policy provided for the automatic temporary suspension from
office of union members who took an internal union matter to an outside body, including
the Board.
[32]
The
reinstatement decision recognized that it would be appropriate in some
situations for the union to temporarily suspend a member from office who had
gone to an outside body with an internal union issue. PIPSC has a legitimate
interest in ensuring that members of the union’s leadership avoid conflicts of
interest and breaches of their duty of loyalty to the union. The problem that
the Board found with the policy as drafted was its absolute character. In
particular, the policy left no room for proportionality between offence and
punishment. See 2009 PSLRB 103 at para. 17.
[33]
Temporarily
suspending a member from office under a policy that was simply too broad would
almost certainly not be regarded by the Board as such a flagrant and egregious breach
of the Act as to warrant criminal prosecution.
Conclusions
[34]
For these
reasons, I would dismiss the application for judicial review with costs.
“John M. Evans”
“I
agree
Pierre
Blais C.J.”
“I
agree
Carolyn
Layden-Stevenson J.A.”
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