Date:
20080513
Docket:
A-204-07
Citation:
2008 FCA 183
CORAM: DESJARDINS
J.A.
SEXTON
J.A.
EVANS
J.A.
BETWEEN:
KASIA KOWALLSKY
Applicant
and
PUBLIC
SERVICE ALLIANCE OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on May
13, 2008)
EVANS J.A.
[1]
This is an
application for judicial review by Kasia Kowallsky to set aside a decision by
the Public Service Labour Relations Board (2007 PSLRB 30), in which the Board,
comprising a single member, dismissed a complaint by Ms Kowallsky that her
bargaining agent, the Public Service Alliance of Canada (PSAC) had breached the
duty of fair representation imposed by section 187 of the Public Service
Labour Relations Act, S.C. 2003, c. 22.
[2]
Ms
Kowallsky has been employed by Citizenship and Immigration Canada (CIC) since
1997. She is dissatisfied with the employer’s failure to reclassify the
position that she once occupied as a Client Service Representative (CSR), and
with its determination that she was not eligible for a CR-05 position because,
as a CSR, she lacked relevant experience. Following the reorganization of
positions at the Vancouver Call Centre of CIC, Ms Kowallsky was redeployed to a
CR-04 position with CIC, a lower position that that of a CR-05 for which she
had been found ineligible.
[3]
Ms
Kowallsky took her various complaints about the employer to PSAC, which did not
deal with them to her satisfaction. The aspect of her complaint about PSAC most
germane to this application is that PSAC refused to take to adjudication her
grievance that CIC had failed to provide her with a complete and accurate work
description of the CSR position, as required by the collective agreement. She
believes that an accurate job description would disclose that she was eligible
for a CR-05 position. Ms Kowallsky says that PSAC did not adequately
investigate her complaint about CIC’s conduct and acted in bad faith.
[4]
After
reciting at length the submissions of the parties and reviewing the evidence,
the Board concluded that Ms Kowallsky had failed to establish that PSAC’s
refusal to take her grievance to adjudication was arbitrary or discriminatory,
or in bad faith. The Board found that the PSAC officials dealing with Ms
Kowallsky’s complaints about the employer had carefully investigated the facts
and, in good faith, had formed the view that the grievance was without merit,
particularly since Ms Kowallsky had failed to provide PSAC with information
needed to substantiate the grievance. The Board accepted PSAC’s submission that,
while the collective agreement required that employees be provided with an
accurate job description, it did not prescribe the format of the description.
The Board also dismissed other aspects of Ms Kowallsky’s complaints against
PSAC as either untimely or outside the scope of the duty of fair
representation.
[5]
It is
important to emphasize two factors which severely limit the ability of this
Court to intervene in the Board’s decision. First, the Board’s decisions are
protected by a strong preclusive clause: Public Service Labour Relations Act,
section 51. This provision precludes the Court from reviewing decisions of the
Board for erroneous findings of fact and errors of law, pursuant to paragraphs
18.1(4)(c) and (d) of the Federal Courts Act, R.S.C. 1985,
c. F-7. Consequently, Ms Kowallsky can only succeed in her application if she
establishes that the Board’s decision was made in excess of its jurisdiction or
in breach of its duty of fairness, or was vitiated by fraud or perjury.
[6]
Second,
bargaining agents have considerable latitude in determining whether to take a
grievance to adjudication or arbitration. It is not the function of the Board
on a complaint of a breach of the duty of fair representation merely to decide
whether it agrees with the bargaining agent’s assessment of the merits of a
complaint by a member of the bargaining unit that the employer is in breach of
the collective agreement. Much less is this the function of this Court on an
application for judicial review of the Board’s disposition of a complaint under
section 187.
[7]
In our
opinion, Ms Kowallsky has not established that the Board committed a
jurisdictional error (fraud or perjury is not alleged) in dismissing her
complaint against PSAC. Before us, Ms Kowallsky, who represented herself, was
largely concerned to identify what she submitted were the Board’s errors or
misunderstandings of the underlying facts. However, because of the preclusive
clause, the Board’s factual findings are not reviewable under paragraph
18.1(4)(d) in this proceeding. We see no basis in the record to support
Ms Kowallsky’s claim of bad faith or discrimination on the part of PSAC or its
officials in dealing with her complaints against the CIC.
[8]
Ms
Kowallsky also alleges that the Board’s decision was made in breach of the duty
of fairness. First, she says that the Board’s reasons are inadequate because
they do not refer to the evidence which she adduced, and do not adequately
explain why it was dismissing her complaint. True, the analysis section of the
Board’s reasons is brief. However, the basis of the decision is clear when the
reasons are read as a whole, including the lengthy description of the parties’
positions. The Board accepted, on the basis of the material before it, that
PSAC had decided not to take the grievance to adjudication because it was
satisfied that the job description was accurate and that Ms Kowallsky had not
provided the information necessary to show otherwise. It found also that PSAC
was warranted in thinking that, while the collective agreement prescribed the
content of job descriptions, it did not require that they be in a particular
format. It was not necessary on the facts of this case for the Board to have
dealt expressly in its reasons with each and every of the many bases of the
allegations made against PSAC by Ms Kowallsky.
[9]
Second, Ms
Kowallsky says in her written submissions to the Court that the Board member
had been employed by PSAC and that this gave rise to a reasonable apprehension
of bias. We disagree. The employment relationship had ended eight years before
he heard the case and there was no allegation that he had acquired knowledge of
Ms Kowallsky’s case during his employment by PSAC. In our opinion, a reasonable,
informed person would not conclude, having thought the matter through in a
practical manner, that, because of his previous employment by PSAC, the Board
member was unable to determine impartially Ms Kowallsky’s complaint against
PSAC.
[10]
Finally,
we see no jurisdictional error in the Board’s dismissal of the other aspects of
Ms Kowallsky’s complaint against PSAC under section 187.
[11]
For these
reasons, the application for judicial review will be dismissed, without costs.
"John M. Evans"
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