Date:
20090903
Docket:
A-229-09
Citation: 2009 FCA 256
Present: TRUDEL
J.A.
BETWEEN:
PROFESSIONAL
INSTITUTE OF THE PUBLIC SERVICE OF CANADA
Applicant
and
GUY VEILLETTE
Respondent
REASONS FOR
ORDER
TRUDEL J.A.
[1]
The
Professional Institute of the Public Service of Canada (Institute) is a
bargaining agent certified under the Public Service Labour Relations Act with
approximately 57,000 members (Edward Gillis affidavit, applicant’s motion
record, page 30).
[2]
Mr. Veillette,
a federal public servant, held various bargaining agent positions with the
Institute between 1999 and January 2007, when the Institute’s board of
directors imposed a disciplinary penalty on him following a physical altercation
with another delegate. Mr. Veillette was suspended from his bargaining
agent duties for a two‑year period ending January 15, 2009.
[3]
After
hearing Mr. Veillette’s complaint, the Public Service Labour Relations
Board (Board) ordered, in a decision dated May 7, 2009, that
Mr. Veillette be reinstated “as a steward in the bargaining agent
positions that he held when he was suspended” (order of the Board, applicant’s
motion record, page 28).
[4]
The
Board determined, among other things, that the disciplinary process leading to
the suspension and the suspension imposed on the respondent were inconsistent
with the principles of natural justice.
[5]
Moreover,
the author of the Board’s reasons stated that she would remain “seized for a
period of 45 days to deal with any issue arising from [that] decision.”
[6]
The
Institute applied for judicial review of that decision of the Board [2009 PSLRB
58; 561‑34‑153]. In this application, the Institute is bringing a
motion for the following:
1.
An order
staying the proceedings before the Public Service Labour Relations Board of
Canada (the Board);
2.
An order
staying the 2009 PSLRB 58 decision dated May 7, 2009, until this
Court has ruled on the application for judicial review of that decision;
3.
Any other
order that the applicant may consider appropriate and that this Court may make.
[7]
To better
understand the dispute between the parties, it should be added that, on the
expiration of his two‑year suspension (January 15, 2009), the
respondent was again suspended for an indefinite period from all elected or
appointed Institute positions, [translation]
“as an administrative not a disciplinary measure” until the end of
proceedings in his case before the Board. This second suspension, announced on
January 27, 2009, gave rise to a new complaint filed with the Board,
which ruled in favour of the respondent, not by ordering that he be reinstated
as a bargaining agent representative, but by ordering that the applicant amend
its Policy relating to Members and Complaints to Outside Bodies to ensure
that it complied with the Act (2009 PSLRB 64, May 29, 2009).
[8]
In
his written submissions, the respondent refers to a second appeal, A-266-09, which is the Institute’s
application for judicial review of that second decision of the Board. For
purposes of the stay requested, that case is not before the undersigned.
[9]
Therefore,
with respect to this case, the stay of the order will only be granted if the
applicant discharges its burden in accordance with the three‑stage test
established in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1
S.C.R. 311.
[10]
This
three‑stage test requires that the applicant demonstrate that
a. there is a
serious question to be tried;
b. it would
suffer irreparable harm if the stay is not granted; and
c. the balance
of convenience weighs in its favour.
[11]
The
applicant must meet each stage of the test, and the analysis must be carried
out in the proper sequence.
1) Serious question to be tried
[12]
The
threshold for this test is low. Without expressing any opinion on the merits of
the application, I accept the applicant’s argument that the relationship
between the Public Service Labour Relations Act, S.C. 2003, c. 22,
s. 2, and in particular subsection 188(c) thereof dealing with
unfair labour practices by employee organizations, and the Institute’s ability
to self‑regulate in disciplinary matters is a serious question, which is
important for the Institute and all of the employee associations subject to the
aforesaid Act.
2) Irreparable harm
[13]
The second
stage of the test is irreparable harm. The applicant must therefore satisfy me,
on a balance of probabilities, that reinstatement of the respondent will result
in irreparable harm. The alleged harm may not be speculative or hypothetical (Canada (Attorney General) v. Canada (Information Commissioner), 2001 FCA 25,
paragraph 12).
[14]
In its
written submissions, the applicant argues as follows:
[translation]
8.
By
reinstating the respondent Veillette in his bargaining agent duties, the Board
created a situation in which no remedy could compensate the applicant for the
harm suffered, that is, for having to remove from a union executive position a
member who had been duly appointed in accordance with staffing rules for those
bargaining agent positions, which must normally be voted on by members or union
executive;
9.
This
is an actual harm that is unavoidable and that cannot be remedied if the Court
sets aside the Board’s decision or the reinstatement order;
Teamsters
Local Union 847 v. Canadian Airport Workers Union, 2009 FCA 44,
paragraph 29.
10.
It
is outside the province of adjudicative or judicial tribunals to determine who
should receive a representation mandate, as this choice belongs exclusively to
qualified voters;
11.
The
order against the applicant and its president will require them to remove union
officials who were duly elected or appointed to their duties;
12.
Divesting
an elected person of his or her mandate issued in accordance with rules that
were democratically adopted by the annual general meeting (AGM) of members,
which is the applicant’s supreme governing body, is an act that is contrary to
the very principle of delegative democracy and not compensable if the decision
requiring the removal of the elected person is set aside;
13.
Condoning
such interference in the conduct of the applicant’s affairs is a usurpation of
members’ power to elect their officers. In this regard, it is harm to the
public interest for which no monetary redress can compensate.
[15]
Without
giving further details, the Institute thus argues that removing the incumbents
of the positions that Mr. Veillette held constitutes irreparable harm.
Surprisingly, this argument is inconsistent with the statements of the
Institute’s executive secretary, who signed the affidavit in support of the
motion at issue. In fact, according to the affidavit, reinstating
Mr. Veillette would violate the Institute’s bylaws and regulations, since
there would then be two incumbents of Mr. Veillette’s positions: the
person elected or appointed to each of the positions and Mr. Veillette.
[16]
Whichever
way one considers the irreparable harm (removal of the current incumbents or
violation of the Institute’s bylaws), I am of the opinion that the Institute
has failed to show irreparable harm.
[17]
The
harm alleged by the applicant in very general terms is nothing more than the
ordinary consequence of a reinstatement order.
[18]
In
addition, the applicant also asks the Court to consider at this stage the
public interest of the Institute’s general members.
[19]
It
is more appropriate to take this into consideration at the third stage of the
analysis. That said, in any event, the exercise of union democracy that led to
the choice of the respondent is just as important as the subsequent exercise
that led to the choice of his replacements. In this context, one should not be
given preference over the other by being granted greater importance. According
to the aforementioned affidavit, the positions that the respondent held in
2007, and to which other incumbents were appointed, are terms of two or three
years. Regular members will therefore be called upon again to exercise their
right.
[20]
As
I find that the Institute has not proved irreparable harm, there is no need to
discuss the third stage, the balance of convenience.
[21]
The
stay motion will be dismissed without costs.
“Johanne
Trudel”
Certified
true translation
Tu-Quynh
Trinh
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