Docket:
A-192-13
Citation: 2014 FCA 1
CORAM:
SHARLOW
J.A.
MAINVILLE
J.A.
NEAR
J.A.
|
BETWEEN:
|
|
DAVID JOLIVET
|
|
Applicant
|
|
and
|
|
TREASURY BOARD (CORRECTIONAL SERVICE OF CANADA)
|
|
Respondent
|
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the
Bench at Ottawa, Ontario, on January 7, 2014)
SHARLOW J.A.
[1] The
applicant Mr. Jolivet is a member of the Canadian Prisoners’ Labour Confederation
(CPLC), an organization of inmates of federal correctional institutions. The
objective of the CPLC is to compel the Correctional Service of Canada to engage
in collective bargaining with respect to the terms and conditions under which
inmates participate in institutional work programs.
[2] When
officials of the Correctional Service of Canada denied Mr. Jolivet and other
organizers of the CPLC the right to sign up members at Kent Institution, Mr.
Jolivet submitted a complaint to the Public Service Labour Relations Board
under section 190 of the Public Service Labour Relations Act, S.C. 2003, c. 22,
alleging a contravention of subsection 186(1) of the Act, which reads as
follows:
|
186. (1) Neither the employer nor a person who occupies a
managerial or confidential position, whether or not the person is acting on
behalf of the employer, shall
(a) participate in or interfere with the formation or administration
of an employee organization or the representation of employees by an employee
organization; or
(b) discriminate against an employee organization.
|
186. (1) Il est interdit à l’employeur et au titulaire d’un
poste de direction ou de confiance, qu’il agisse ou non pour le compte de
l’employeur :
a) de participer à la formation ou à l’administration d’une
organisation syndicale ou d’intervenir dans l’une ou l’autre ou dans la
représentation des fonctionnaires par celle-ci;
b) de faire des distinctions illicites à l’égard de toute
organisation syndicale.
|
[3] The
Board dismissed the complaint without considering it on the merits. Mr. Jolivet
now seeks judicial review of that decision. Having carefully reviewed the
record and considered Mr. Jolivet’s written and oral submissions, we have
concluded for the following reasons that this application for judicial review
must be dismissed.
[4] The
Board concluded that it has no jurisdiction to entertain the complaint because
inmates of a federal correctional institution who participate in an
institutional work program are not, by virtue of that participation,
“employees” as defined in subsection 2(1) of the Act because they are not
appointed by the Public Service Commission to a position created by the
Treasury Board. In reaching that conclusion, the Board followed a consistent
line of jurisprudence, including the leading case of Canada (Attorney General)
v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614 (referred to as the
“Econosult” case).
[5] Mr.
Jolivet has raised numerous arguments in support of his application for
judicial review, but essentially his position is twofold. First, he argues that
the Econosult case is no longer good law. Second, he argues that the Board’s
dismissal of his complaint without considering the merits is inconsistent with
many important legal and constitutional principles, including his rights under
the Canadian Charter of Rights and Freedoms to freedom of association and
freedom of expression.
[6] The Act
defines the legal authority of the Board. It is axiomatic that the Board has
the legal authority to consider Mr. Jolivet’s complaint on the merits only if
it falls within the Board’s statutory mandate.
[7] Mr.
Jolivet’s complaint is based necessarily on the premise that he and other
inmates who participate in institutional employment programs are within the
scope of the Act. The Board found that premise to be incorrect, based on the
definitions of “employee” and “employee organization” in subsection 2(1) the
Act. Based on that finding, the Board was compelled to conclude that it does
not have the legal authority to consider the complaint on its merits, or to
address Mr. Jolivet’s constitutional arguments. That conclusion must stand
unless this Court has a legal basis for setting it aside.
[8] The
parties do not agree on the standard of review to be applied in this case. In
our view, we do not need to determine this point because the outcome is the
same under either the correctness or reasonableness standard.
[9] We
agree with the Board’s decision and its reasons. Specifically, we find that the
Board’s understanding of the facts was open to it on the evidence before it,
and the Board’s analysis of the jurisprudence and the relevant statutory
provisions is well explained and soundly reasoned. We find specifically that
the principles from the Econosult case upon which the Board relied are binding
on the Board and this Court.
[10] Although
the legislation relating to employment in the public service has evolved since
the Econosult case was decided, the fundamental principle that employment in
the public service is subject to specific legislated formalities remains valid.
Inmates participating in work programs organized by the Correctional Service of
Canada have not been appointed to a position in the federal public service. As
a result, they are not “employees” within the meaning of the Act.
[11] The
Crown has not asked for costs. However, Mr. Jolivet has asked for costs in any
event of the outcome. In this Court, costs are awarded to an unsuccessful party
only in exceptional cases. We are not persuaded that this is such a case.
[12] The
application for judicial review will be dismissed without costs.
“K. Sharlow”
Email this Content