Docket: A-131-16
Citation:
2017 FCA 52
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CORAM:
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STRATAS J.A.
BOIVIN J.A.
WOODS J.A.
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BETWEEN:
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ELIZABETH
BERNARD
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Applicant
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and
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CECILIA CLOSE,
ANDREA STEVENS and THE ATTORNEY GENERAL OF CANADA
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Respondents
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on March
14, 2017).
STRATAS J.A.
[1]
The applicant seeks an order quashing a decision
of the Public Service Labour Relations and Employment Board dated March 2, 2016
(files 566-02-7231 and 566-02-7232): 2016 PSLREB 18.
[2]
The applicant was not a party to the Board
proceedings, is not a member or employee of the union involved in the Board
proceedings, and has no relationship with the individual respondent grievors
before the Board. The applicant has offered no evidence suggesting that the
Board’s decision affected her legal rights,
imposed legal obligations upon her, or prejudicially affected her in some way: League
for Human Rights of B'Nai Brith Canada v. Odynsky, 2010 FCA 307, [2012] 2
F.C.R. 312; Rothmans of Pall Mall Canada
Ltd. v. Canada (M.N.R.), [1976]
2 F.C. 500, 67 D.L.R. (3d) 505
(C.A.); Irving Shipbuilding Inc. v. Canada (A.G.), 2009 FCA 116, [2010]
2 F.C.R. 488. Thus, the applicant is
not “directly affected” by the proceedings before the Board within the meaning
of subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7.
[3]
Nor does the applicant have public interest
standing. In considering this, we are to consider in a cumulative way whether a
serious justiciable issue is raised, whether the applicant has a “real stake”
or “genuine interest” in the matter, and whether in all the circumstances, this
application is a reasonable and effective way to bring the issue before the
courts: Canada (Attorney General) v. Downtown Eastside Sex Workers United
Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524 at para. 37.
[4]
In applying these factors, we should keep front
of mind the rationales underlying them: “properly
allocating scarce judicial resources and screening out the mere busybody;
ensuring that courts have the benefit of contending points of view of those
most directly affected by the determination of the issues; and preserving the
proper role of courts and their constitutional relationship to the other
branches of government”: Downtown Eastside at para. 25.
[5]
The application alleges that the Board’s
decision is invalid because two statutory provisions were breached: the Board
member involved in the decision failed to satisfy a legal residency requirement
and the Board member released the decision beyond the time permitted by law. We
shall assume the applicant has raised a serious justiciable issue.
[6]
We note that the Board member is now retired and
the time likely has passed for challenges to be brought against other decisions
she was involved in. However, the interpretation and application of the two
statutory provisions may well arise in the future concerning other Board
members. Parties who are directly affected and legally represented may well
want to litigate those issues themselves. The statutory provisions are also
virtually identical to many others under other statutes. This is not a
situation where an issue of significance is evasive of review.
[7]
In this case, any parties dissatisfied with the
Board’s decision were represented and faced no impediments against applying for
judicial review. But they did not so apply. Perhaps their union, thinking of
the interests of all of its members, was satisfied with the outcome reached by
the Board. This suggests a conscious choice by the parties or their union to
accept the Board’s decision or at least a conscious unwillingness to contest
it. Granting standing to the applicant would disrupt that choice. See the
concerns expressed by the Supreme Court in Downtown Eastside, above, at
para. 27 and Hy and Zel’s Inc. v. Ontario (Attorney General), [1993] 3
S.C.R. 675 at p. 694.
[8]
In these circumstances, to permit the applicant to
litigate this matter, the Court would have to have before it at least some
evidence explaining the applicant’s interest in the matter. On this, the
applicant has filed no evidence whatsoever except to show that her collective
agreement contains a clause similar to the one in issue here. But if a dispute
were to arise under the clause in her collective agreement, that can be
litigated by persons directly affected.
[9]
We do not consider it to be a wise use of
judicial resources in a case like this to permit a litigant whose interest in
the matter is at best only jurisprudential to judicially review a decision of
relevance mainly to the particular private parties in that matter, in
circumstances where the parties do not wish to litigate further. There are
potentially tens of thousands similarly situated to the applicant who would
also have standing if we were to grant standing to this applicant: see the
concerns expressed by the Supreme Court in Downtown Eastside, above, at
para. 26 and Canadian Council of Churches v. Canada (Minister of Employment
and Immigration), [1992] 1 S.C.R. 236 at p. 252. The issues said to be of
concern in this case may well arise again and are not evasive of review.
[10]
At the outset of the hearing of this
application, we raised with the parties the propriety of the style of cause and
received submissions on this. In our view, the respondent “Treasury Board
(Department of Citizenship and Immigration)” is not an entity known to law. In
its place, we shall substitute the Attorney General of Canada. The amended
style of cause shall appear on these reasons and the judgment of the Court.
[11]
Therefore, we shall dismiss the application for
judicial review for want of standing. The respondents agree in these
circumstances that there should be no costs.
"David Stratas"
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