Date: 20120120
Docket: A-117-11
Citation: 2012 FCA 19
PRESENT: DAWSON J.A.
BETWEEN:
PROFESSIONAL INSTITUTE OF THE
PUBLIC SERVICE OF CANADA
Applicant
and
CANADIAN FOOD INSPECTION AGENCY
Respondent
REASONS FOR ORDER
DAWSON J.A.
[1]
The
Canadian Food Inspection Agency (CFIA) has brought a motion in writing for an
order dismissing this application for judicial review on the ground that it is
moot. In the alternative, the CFIA seeks an order extending the time for the
completion of the cross-examinations on the affidavits filed in this
proceeding.
[2]
The
Professional Institute of the Public Service of Canada (PIPSC) responds that
the application for judicial review is not moot. It does agree with the CFIA
that the determination of mootness should be dealt with in writing on a
preliminary basis, and that if the Court determines that there is no live
controversy between the parties the application should be dismissed at this
preliminary stage. The PIPSC also agrees that if the motion to dismiss the
application fails, an extension should be granted for the purpose of allowing
cross-examination upon the affidavits.
The Facts
[3]
The
facts underlying this motion are not in dispute.
[4]
The
PIPSC is certified under the provisions of the Public Service Labour
Relations Act, S.C. 2003, c. 22, s. 2 (Act) as the bargaining agent
representing veterinarians (VM Group) employed by the CFIA. The PIPSC and the
CFIA have been in negotiations for the conclusion of an essential services
agreement (ESA) for the VM Group since December 2006.
[5]
In
the course of those negotiations in December 2006, the PIPSC applied to the
Public Service Labour Relations Board (Board) for the determination of certain
matters relating to an ESA for the VM Group. The application was made under
paragraph 123(1)(a) of the Act.
[6]
On
February 8, 2011, the Board made an order determining that the CFIA’s ESA with
the PIPSC would include provisions for the following services it found were
necessary for the safety or security of the public:
(i)
meat
hygiene, as it relates to the CFIA’s mandate under the Meat Inspection Act
and the Meat Inspection Regulations, 1990;
(ii)
laboratories
as it relates to diagnostics, pathology, food safety and food security and
animal health care; technological transfers in an outbreak and ordering of
controlled substances;
(iii)
animal
health as it relates to the mandate of the CFIA under the Health of Animals
Act and Health of Animals Regulations;
(iv)
care of
animals within the specialized farms and in laboratories managed by the CFIA;
(v)
issuance
of export and import certificates as provided under the Meat Inspection
Regulations, 1990 and the Health of Animals Act;
(vi)
import and
border inspection services related to animal health and welfare;
(vii)
emergency
response to food safety, animal health, and any other emergency that falls
within the CFIA’s mandate;
(viii)
on a
conditional basis, when the Area Executive Director seeks to respond to a
suspected or diagnosed emergency animal disease by establishing an Emergency
Operations Center the VMs necessary, as determined by the employer, will
respond to the emergency.
[7]
In
this pending application for judicial review, the PIPSC seeks an order setting
aside the Board’s decision.
[8]
To
date, the parties have not yet concluded an ESA.
[9]
On
September 8, 2011, the bargaining agent advised the Board that the VM group at
PIPSC had changed its dispute resolution method from conciliation/strike to
arbitration. This change was also communicated to the CFIA by letter dated
September 13, 2011.
[10]
The
existing collective agreement between the CFIA and the PIPSC expired on
September 30, 2011. On September 13, 2011, the PIPSC served a notice to
bargain on behalf of the VM Group.
The Issue
[11]
The
sole issue to be decided on this motion is whether this application became moot
as a result of the change in the dispute resolution process selected by the
PIPSC.
The Test for Mootness
[12]
I
agree with the parties that the test for mootness is that articulated by the
Supreme Court of Canada in Borowski v. Canada (Attorney
General),
[1989] 1 S.C.R. 342. This requires the Court to determine whether there is a “live
controversy” between the parties and, if not, whether the Court should
nonetheless exercise its discretion to hear the matter.
Consideration of the
Issue
[13]
Under
the Act, an ESA must be concluded where the process for the resolution of a
dispute applicable to the bargaining agent is conciliation/strike and the
employer has given notice to the bargaining agent that there are positions in
the bargaining unit that are necessary in order for the employer to provide
essential services (sections 119 and 122). Put another way, an ESA is only
necessary to protect essential services in the event of a strike. Thus, the
provisions of the Act dealing with ESAs are triggered when a union selects
conciliation/strike instead of arbitration as its method of dispute resolution
and the employer has given notice that there are positions in the bargaining
unit necessary for it to provide essential services.
[14]
The
CFIA argues that there is no longer any live controversy between the parties
because the change in the dispute resolution process selected by the PIPSC
makes it unlikely that there will be a withdrawal of services or a strike
during this round of collective bargaining. It follows, it submits, that the
statutory requirement for an ESA is no longer applicable to the parties.
[15]
The
CFIA does, however, acknowledge that pursuant to section 104 of the Act, the
PIPSC may in future apply to the Board to record again a change in its dispute
resolution process. Should conciliation/strike be the dispute resolution
process for future rounds of bargaining, the parties will be obliged to have an
ESA in place prior to the withdrawal of services or declaration of strike.
[16]
In
light of the right of the PIPSC in future to elect conciliation/strike as the
dispute resolution mechanism, in my view it is necessary to consider what
effect, if any, the decision of the Board presently under review would have in
that circumstance. More specifically, in the event the dispute resolution
mechanism is changed from arbitration to conciliation/strike and the CFIA
continues to maintain that employees in the bargaining unit occupy positions
that are necessary for it to provide essential services, would the decision of
the Board enumerating essential services continue to have any legal effect? For
there to be no live controversy between the parties, the decision of the Board
under review must cease to have any future effect on the parties as a result of
the current selection of arbitration as the dispute resolution process. If not,
in my view, there remains a live controversy between the parties.
[17]
PIPSC
argues that the effect of section 125 of the Act is that a negotiated ESA, and
by implication the Board’s decision, continues to exist even when the
bargaining agent switches the dispute mechanism procedure from conciliation/strike
to arbitration. This argument is based upon sections 119 and 125 of the
Act.
[18]
Sections
119 and 125 of the Act provide:
|
Application
of Division
119. This
Division applies to the employer and the bargaining agent for a bargaining
unit when the process for the resolution of a dispute applicable to the
bargaining unit is conciliation.
[…]
Duration
125. An
essential services agreement continues in force until the parties jointly
determine that there are no employees in the bargaining unit who occupy
positions that are necessary for the employer to provide essential services.
|
Application
119. La
présente section s’applique à l’employeur et à l’agent négociateur
représentant une unité de négociation dans le cas où le mode de règlement des
différends applicable à celle-ci est le renvoi à la conciliation.
. .
.
Durée
de l’entente
125. L’entente
sur les services essentiels demeure en vigueur jusqu’à ce que les parties
décident conjointement qu’aucun des fonctionnaires de l’unité de négociation
n’occupe un poste nécessaire pour permettre à l’employeur de fournir de tels
services.
|
[19]
In
the submission of PIPSC (my emphasis added):
24. Section
125, on its face, means that a completed ESA continues in force indefinitely
until there are no longer any employees in a bargaining unit who perform
essential services. However, s. 119 states that the Division (including s. 125)
applies when the union has chosen “strike” as its method of dispute resolution.
Does a switch to “arbitration” mean that the essential services Division of the
PSLRA stops applying for all purposes, so that all of the work that went
into negotiating an ESA is undone? There are a number of practical reasons why
such a result would have adverse labour relations results:
(i)
the waste
of time and resources of the parties, the PSLRB, and even (on occasion) this
Court that went into concluding an ESA;
(ii)
a union who
was dissatisfied with the content of an ESA could switch to “arbitration” and
then back to “strike” to void that particular ESA and return to the PSLRB to
try to improve the ESA; and
(iii)
ESAs take
years to complete — as demonstrated in this case where the parties started negotiating
in 2004 and still have not completed. A union that switched to “arbitration”
and wanted to switch back to “strike” would be faced with the prospect of
having to re-negotiate an ESA and thus be delayed for years in exercising their
statutory right to strike.
25. The
better view is that s. 125 of the PSLRA prevails to the extent that
there is any conflict with s. 119. The negotiated ESA continues to exist and
remains “in force” even when the union switches to “arbitration”, so that there
is an ESA in place when the union switches back to “strike”. If the switch
back to “strike” occurs after a considerable period of time, then one of the
parties is likely to serve a notice to negotiate an amendment to the ESA under
s. 126 of the PSLRA, with the PSLRB resolving any difficulties with the
amendments under s. 127 of the PSLRA. This is consistent with those
amendment rules, and also consistent with the broad purpose of the PSLRA to
promote “harmonious labour-management relations.” Put another way, reading
the entire PLSRA in context leads to the conclusion that an ESA should
continue to exist even when a union switches from “strike” to “arbitration” —
so that there is still an ESA in place when the union switches back to “strike”
again.
[20]
The
CFIA did not make any submissions about the future effect of the Board’s
decision.
[21]
In
my view, the question of the future legal effect of the Board’s decision in the
event of a return to conciliation/strike as the dispute resolution mechanism
need not be finally decided on this motion. It is sufficient for me to conclude
that the CFIA has failed to answer the submission of PIPSC and so failed to
establish that the current Board decision would not in future affect the legal rights
of the parties. It follows that the CFIA has failed to demonstrate there is no
live controversy between the parties at this time. The CFIA’s motion to dismiss
this application for mootness must fail.
[22]
The
issue of what happens to a partially or wholly completed ESA after a union
selects arbitration as the dispute resolution mechanism is an issue best left
to another date when this Court will have the benefit of the Board’s
consideration of the issue.
[23]
An
order will issue dismissing the motion and extending the time for
cross-examinations to be completed. The PIPSC did not seek costs and no costs
are awarded.
“Eleanor R. Dawson”
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