Dockets: A-69-17
A-174-17
Citation:
2018 FCA 23
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CORAM:
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STRATAS J.A.
WEBB J.A.
BOIVIN J.A.
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Docket: A-69-17
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BETWEEN:
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ELIZABE
TH BERNARD
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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Docket: A-174-17
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AND BETWEEN:
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ELIZABETH
BERNARD
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Applicant
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and
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CANADA REVENUE
AGENCY
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on
January 23, 2018).
STRATAS J.A.
[1]
Before the Court are two
applications for judicial review. In one (file A-69-17), the applicant seeks relief
concerning the delay on the part of the Public Service Labour Relations and
Employment Board in releasing its decision concerning a complaint she had made
under the Federal Public Sector Labour
Relations Act, S.C. 2003, c. 22, s. 2.
In the other (file A-174-17), the applicant seeks to set aside the Board’s
decision dated May 1, 2017: 2017 PSLRB 46. In that decision, the Board
dismissed the applicant’s complaint.
[2]
These are the Court’s
reasons in the applications. A copy of these reasons shall be filed in both
court files.
[3]
We consider the outcome
reached by the Board in its May 1, 2017 decision to be reasonable. Putting
aside the Board’s decision on its jurisdiction to hear the applicant’s
complaint, the Board concluded that the applicant’s complaint should be
dismissed because it was essentially a reassertion of issues she raised or
could have raised in earlier matters: see the reasons of the Board at paras.
79-81. Among these matters is the decision of the Supreme Court in Bernard v. Canada (Attorney General), 2014 SCC 13, [2014] 1 S.C.R. 227 which broadly dealt
with the issue of the disclosure of the applicant’s home contact information,
the essential issue that was before the Board in the case at bar. The
Board’s decision to dismiss the applicant’s complaint on this basis is both
acceptable and defensible on the facts and the law: Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47.
[4]
We do not consider there to
be any infringements of the applicant’s procedural fairness rights in the hearing
before the Board. There is also no evidence of actual or apparent lack of
open-mindedness on the part of the Board and so the allegation of bias should
not have been made: R. v. S. (R.D.), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193.
The Board merely disagreed with the applicant’s submissions.
[5]
The applicant submits that
the Board’s interpretation of para. 186(1)(a) of the Public Service
Labour Relations Act is inconsistent with subsection 2(e) of the Canadian
Bill of Rights, S.C. 1960, c. 44.
This relates to the Board’s decision on the applicant’s standing to make the
complaint and its jurisdiction to hear it, an issue that we do not need to
decide.
[6]
In her application
concerning the delay on the part of the Board in releasing its reasons on the
complaint, the applicant sought mandamus requiring the Board to release
its decision. After the application was made, the Board released its decision
and so, as the applicant admitted during oral argument, the request for mandamus
is now moot. In her submissions before us, the applicant is now seeking a
declaration that the Board failed to meet its legal duty to render a timely
decision on her complaint.
[7]
We note that relief on
judicial review is discretionary: MiningWatch
Canada v. Canada (Fisheries and Oceans),
2010 SCC 2, [2010] 1 S.C.R. 6. We consider that no purpose would be
served in issuing a declaration concerning the Board’s delay in this matter.
Reasons alone are sufficient to address the issues raised in this application.
The Board’s delay is regrettable and we consider that its determination of the
applicant’s complaint should have happened sooner. To the extent the delay was
caused by inadequate resources and to the extent the Board needs more resources
to fulfil its statutory mandate on a timely basis, it should demand them.
[8]
Therefore, we shall dismiss the
application in file A-174-17 with costs. We shall also dismiss the application
in file A-69-17, but in the circumstances shall make no order as to costs.
“David Stratas”
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