Date: 20091028
Docket: A-337-09
Citation: 2009 FCA 312
Present: PELLETIER
J.A.
BETWEEN:
PROFESSIONAL INSTITUTE OF THE
PUBLIC SERVICE OF CANADA
Applicant
and
IRENE BREMSAK
Respondent
REASONS FOR ORDER
PELLETIER J.A.
[1]
The
applicant Professional Institute of the Public Service of Canada (the
Institute) has filed two motions seeking a stay of the orders of the Public
Service Labour Relations Board in relation to the respondent Ms. Irene Bremsak,
in one case until the Institute’s application for judicial review has been
heard and disposed of, and in the other case, until a parallel case, Institut
professionnel de la fonction publique du Canada c. Veillette (dossier no.
A-266-09) is heard and disposed of. Since both motions raise the same issues,
they will be dealt with in one set of reasons, with a copy being placed on each
file.
[2]
Ms.
Bremsak was suspended from a number of positions she held within the Institute,
to which she had been either elected or appointed, because her act of
initiating proceedings against the Institute before the Public Service Labour
Relations Board (the Board) created a conflict of interest between her duty of
loyalty to the Institute and her interest in pursuing her complaint against the
Institute. In proceeding as it did, the Institute relied upon a policy entitled
“Policy relating to members and complaints to outside bodies” (the Policy).
[3]
The Board
found that the Policy was overly broad and lacked proportionality. It found
that it constituted a “form of penalty” within the meaning of section 188 of
the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2
specifically paragraph 18(c) and subparagraph 18(e)(ii). As a result the
Board ordered the Institute to:
(a) rescind the policy as it
applies to Ms. Bremsak and to amend it to conform to the requirements of the
Act;
(b) revoke Ms. Bremsak’s
suspension from elected and appointed positions;
(c) inform the Institute’s
membership and officials that the suspensions have been revoked. To that end,
the Board ordered the Institute to publish a notice which it prepared “in the
next edition of one of its [the Institute’s] regular and significant
publications…”.
[4]
According
to Ms. Bremsak’s affidavit, the Institute has not yet complied with the Board’s
order, notwithstanding that it was made on August 26, 2009. The Institute’s
first application for a stay was filed on September 3, 2209 while the second
was filed on September 21, 2009.
[5]
The
requirements for the issuance of a stay of execution are well known:
(a) there must be a serious issue
to be tried;
(b) the applicant must satisfy the
Court that it will suffer irreparable harm if it is not granted the stay; and
(c) the balance of convenience
must favour the applicant.
See RJR-MacDonald
Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311
[6]
In my
view, there is clearly a serious issue to be tried in that the application of
section 188 of the Act to the Institute’s internal processes is a matter which
is neither trivial nor a foregone conclusion. The critical issue is whether the
Institute will suffer irreparable harm if it is required to comply with the
Board’s order and, in particular, if it is required to reinstate Ms. Bremsak to
those offices to which she was originally elected or appointed.
[7]
This
question came before my colleague Trudel J.A. in Institut professionnel de
la fonction publique du Canada c. Veillette , 2009 CAF 256, [2009] A.C.F.
No. 1004, in which she was asked to grant a stay of an order of the Board reinstating
Mr. Veillette in circumstances similar to those in this case. The Institute
argued in that case that irreparable harm flowed from the fact that other
persons had been elected or appointed to the offices from which the Mr.
Veillette had been suspended would necessarily have to be removed from office
in order to reinstate Mr. Veillette. My colleague dismissed this argument,
saying that it was nothing more than the normal consequence of an order for
reinstatement, a common remedy in labour relations. Furthermore, there was no
reason to prefer the democratic rights of those who had elected Mr. Veillette’s
replacements to those of the persons who had elected Mr. Veillette in the first
instance.
[8]
In this
case, the applicant raises a different argument which is that Ms. Bremsak’s
recourse to an outside tribunal to pursue a remedy against her union puts her
in a position where she is unable to carry out her duties with undivided
loyalties. The Institute says that it should not be placed in a position where Ms.
Bremsak can provide advice and influence and make decisions in her role in the
offices to which she has been appointed or elected, while she continues to have
a conflict of interest. In summary, the Institute’s primary concern is to avoid
having a member occupy a leadership position while at the same time challenging
the Institute before an outside tribunal.
[9]
While the
present circumstances create an awkward situation for the Institute, they do
not, in my view, rise to the level of irreparable harm. Ms. Bremsak may be
opposed to her union with respect to a specific dispute but there is no reason
to believe that she does not support the union’s overall goals and objectives
and is incapable of distinguishing between her interests and those of the
membership of the union. If events should show that Ms. Bremsak has abused her
position, then the normal disciplinary procedure, as provided in the Bylaws,
would apply.
[10]
In any
event, the balance of convenience strongly favours Ms. Bremak. In the interval
since she was suspended, the term of a number of posts to which she was elected
has expired. If the order of the Board is stayed until the matter is finally
resolved, all them may expire before she has the opportunity to resume them,
assuming she is successful. At that point, the issue would be moot from Ms.
Bremsak’s point of view.
[11]
Insofar as
staying the Board’s order until the Veillette case is concerned, there
are enough differences between the two cases that the resolution of that case
would not be determinative of the ultimate issue in this case. As a result, the
issues of irreparable harm and balance of convenience must be addressed, and
when they are, the result is the same in both motions.
[12]
I would
therefore dismiss each application for a stay of the order of the Board with
costs of the motion to be costs in the cause.
"J.D.
Denis Pelletier"
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