Docket: A-149-15
Citation:
2016 FCA 8
|
CORAM:
|
RYER J.A.
NEAR J.A.
RENNIE J.A.
|
|
BETWEEN:
|
|
PUBLIC SERVICE ALLIANCE OF CANADA,
ROBYN BENSON, LORI HALL, MARLENE ETTEL, VALERIE GRUNDY AND DES SCOTT
|
|
Applicants
|
|
and
|
|
CANADA
REVENUE AGENCY AND MARCIA BUFFORD
|
|
Respondents
|
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on
January 13, 2016).
NEAR J.A.
[1]
This is an application for judicial review of a
decision of the Public Service Labour Relations and Employment Board (the
Board), dated February 20, 2015 and cited as 2015 PSLREB 20, denying two
consent orders sought by Ms. Marcia Bufford, the Public Service Alliance of
Canada (PSAC), and Lori Hall, Robyn Benson, Marlene Ettel, Valerie Grundy, and
Des Scott (the Named Individuals), pursuant to subsection 192(1) of the Public
Service Labour Relations Act, S.C. 2003, c. 22 (the Act). These orders
related to two unfair labour practice complaints that Ms. Bufford had filed
against the Named Individuals and PSAC.
[2]
Ms. Bufford’s complaint was that PSAC and the
Named Individuals committed an unfair labour practice by failing to provide her
with fair representation with respect to two grievances against her employer,
the Canada Revenue Agency (the CRA). The events that gave rise to these
grievances occurred between January 2004 and October 2009, at least six years
ago and at most twelve years ago.
[3]
Proceedings before the Board with regard to Ms.
Bufford’s complaints commenced on January 28, 2013. They were adjourned after
five days, and scheduled to resume in May 2013. Settlement negotiations between
Ms. Bufford and PSAC ensued, and an agreement was reached. However, the
proceedings before the Board remain outstanding.
[4]
This settlement led to the applications to the
Board for the consent orders at issue. In essence, those orders provided that:
a)
PSAC acknowledged its unfair labour practice;
b)
the complaint against the Named Individuals was
dropped;
c)
Ms. Bufford would be permitted to proceed with
the grievances against the CRA, notwithstanding that they had not yet been
filed; and
d)
the grievances were deemed to have met all
applicable time limits.
[5]
In effect, the consent orders would grant Ms.
Bufford an extension of time to file her grievances without having to resort to
the specific provisions of the Act and the Public Service Labour Relations
Regulations, S.O.R./2005-79 (the Regulations) and meet the requirements
thereunder.
[6]
The Board declined to grant the orders for the
following reasons:
a)
it had not determined that the complaints were
well founded, which is a precondition to issuing a remedy under subsection
192(1) of the Act;
b)
the orders were against the CRA’s interests and
the Board’s power under subsection 192(1) of the Act only extends to issuing
orders against a party complained of (here, PSAC and the Named Individuals);
and
c)
it could not rely upon its power to make “incidental” orders under section 36 of the Act to
grant the extension of time and refer the grievances to adjudication because
the power to extend timelines is codified in section 61 of the Regulations.
[7]
As a preliminary matter, on consent, the style
of cause will be amended to replace “Canada Revenue
Agency” as the respondent with “The Attorney
General of Canada” (Gravel v. Canada (AG), 2011 FC 832 at para. 6,
393 F.T.R. 219).
[8]
The standard of review of the Board’s decision
is reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9 at paras. 47,
62, [2008] 1 S.C.R. 190; Exeter v. Canada (Attorney General), 2014 FCA
251 at para. 29, 465 N.R. 346.
[9]
The applicant contends that the Board decision
under review is inconsistent with the prior Board decision in Ménard v. Public
Service Alliance of Canada, 2010 PSLRB 124. In that case, the Board
rescinded the improper withdrawal of a grievance by the union and reactivated
the then-closed grievance. Importantly, there was in that case a prior decision
by the Board that the complaint was well-found. Thus, the statutory
pre-condition to the exercise of the remedial process in subsection 192(1) of
the Act had been met. Here, no such determination has been made.
[10]
The applicants also argue that the proposed
consent orders would merely “impact incidentally on
CRA” (Applicants’ Memorandum of Fact and Law at para. 39, Application
Record, Vol. 2 Tab 4). The Board held that the relief in the proposed consent
orders was, in this case, as against the CRA, given the significant time delays
that the CRA was being asked to ignore. Indeed, the Board concluded that the
relief sought in the proposed consent order was “substantive
relief as against the employer in relation to grievances that Ms. Bufford
alleged” and that “[t]his relief as set out in
the applications for consent orders is specifically as against the employer”
(Board Reasons at para. 85).
[11]
We agree that the proposed consent orders would
directly, and not incidentally, impact the CRA and that the Board reasonably
concluded that the effect of the proposed consent orders would be as against
the CRA, which is not a party complained of, for the purposes of subsection
192(1) of the Act.
[12]
Despite counsel’s various and forceful
arguments, we are not persuaded that the decision of the Board was
unreasonable. The decision is amply supported by the reasons that are referred
to above and we see no reason to interfere with it.
[13]
For these reasons, the application will be
dismissed with costs.
"David G. Near"
Email this Content