Date: 20090406
Docket: T-1832-06
Citation: 2009 FC 350
Ottawa, Ontario, April 6,
2009
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
ROBERT BEAUCHAMP, GILLES
LAVIGNE,
PUBLIC SERVICE ALLIANCE OF CANADA
and RACHEL DUPÉRÉ
Applicants
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by the Public Service Alliance Canada
(PSAC) and three of its members (the personal Applicants) challenging the
ongoing failure by the Governor in Council (GIC) to proclaim into law Part III
of the Parliamentary Employment and Staff Relations Act, R.S.C. 1985, c.
33 (2nd Supp.) (PESRA) dealing with workplace health and safety
measures. This failure, they say, constitutes a violation of the rights of the
personal Applicants and other similarly situated Parliamentary employees to
life and security of the person under s. 7 of the Canadian Charter of Rights
and Freedoms (Charter). The relief claimed by the Applicants includes a
declaration of a s. 7 Charter breach and an Order compelling the GIC to
“forthwith” proclaim into force Part III of the PESRA which would, in turn,
make Part II of the Canada Labour Code, R.S.C. 1985, c. L-2 (CLC)
applicable to their employment. The Applicants’ claims to relief under s. 15
of the Charter were withdrawn before the hearing.
I.
Background
[2]
PSAC
represents approximately 400 employees of the House of Commons (employer) working
in a number of locations within the Parliamentary Precinct including the Centre
Block, the West Block, the East Block, the Wellington Building, the CD Howe
Building, the Confederation Building, the Justice Building, La Promenade, 181
Queen Street and the Belfast Warehouse Complex. There are at least three other
unions representing other House of Commons employees.
[3]
Over
the years PSAC and its members have been very concerned about the presence of
asbestos in several of the buildings where they work and about the failure by
their employer to deal with that problem to their satisfaction. Needless to
say, these concerns have led to an increasing level of disquiet, mistrust and
anxious discussion. PSAC is particularly concerned about the apparent
unwillingness by the employer to share information on a timely basis about
asbestos risks in the workplace.
[4]
PSAC’s
concerns about workplace health and safety have not been limited to the
asbestos risk. Other such matters include problems with air quality, the
presence of molds and fungi, blocked exit doors, improper storage of dangerous
materials, excessive noise and repetitive strain injuries. All of these
matters are thoroughly documented in the voluminous record before me.
[5]
PSAC’s
underlying concern is that its members do not enjoy the full panoply of health
and safety protections available to other federal employees under the CLC and
available to most other Canadian employees under provincial legislation. This
problem, they say, arises from the failure by the GIC to proclaim Part III of
the PESRA which, in turn, would make Part II of the CLC applicable to their
employment. The affidavit of Robert Beauchamp expresses this concern:
90. Between 1996 and the present
day, PSAC has continued to write to and meet with individual Members of
Parliament, hold demonstrations, and issue public statements, all in an attempt
to see Part III of PESRA proclaimed. Attached hereto and marked as
Exhibit “QQQ” are documents from 1999 which were circulated to PSAC Members as
part of this campaign. On June 6, 2006, PSAC held a demonstration noting the
20th anniversary of the passage of PESRA into law.
91. Despite these efforts, and the
significant resources expended by PSAC, we have been unable to convince the
Government to proclaim Part III of PESRA. Parliamentary employees in Canada are among the very few groups
not protected by health and safety legislation. I am aware that employees in
provincial legislatures are subject to health and safety legislation, as are
employees in the United States Congress and the United Kingdom’s House of Parliament. Attached hereto and
marked as Exhibit “RRR” are two newspaper articles from January 1995, one of
which was in the Ottawa Citizen, documenting this.
92. Given the extensive efforts
made by employees to proclaim Part III of PESRA, the continued failure
of the Governor General in Council to do so causes me to believe there is good
reason to be concerned about the health and safety situation in the House of
Commons. Otherwise, these parts of the legislation would have been
proclaimed. Access to the Code would allow Parliamentary employees to
have effective channels through which to raise concerns about workplace health
and safety. These channels would allow an independent adjudicator to make
final decisions on matters of health and safety, taking this authority out of
the hands of the employer, and provide employees with an established right to
all information and reports held by the employer or the Government involving
workplace health and safety. I believe such rights are necessary to ensure the
health and safety of employees is properly protected.
93. I make this affidavit in
support of the Application for judicial review of the Governor General in
Council’s failure to proclaim Part III of PESRA.
[6]
Part
I of the PESRA was proclaimed into law on December 24, 1986. Parts II and III
of the PESRA have never been proclaimed despite a formidable and ongoing
lobbying campaign by PSAC and others. It is the failure by the GIC to proclaim
Part III of the PESRA which is at the root of this application.
[7]
Notwithstanding
the absence of direct CLC protection, PSAC and its members are the
beneficiaries of health and safety protections under PESRA, and provided by
their collective agreement. Part I of the PESRA provides for collective
bargaining and other rights of employment. Strikes are prohibited and all
unresolved collective bargaining disputes are determined by binding
arbitration. Division IV of Part I of the PESRA sets out a system for
resolving employee grievances. Under s. 62 any employee who feels aggrieved by
the interpretation or application of a provision of a collective agreement or
an arbitral award, or as a result of a matter affecting the terms and
conditions of employment, may initiate a grievance. Among other matters, any
grievance concerning the interpretation or application of a collective
agreement or one which involves a disciplinary suspension or financial penalty
must (with the concurrence of the bargaining agent) be referred to adjudication
before the Public Service Labour Relations Board (Board).
[8]
The
current collective agreement between the House of Commons and PSAC contains
several provisions dealing directly with health and safety matters. For
example, Article 35.01 requires the employer to carry on its operations in a
manner that will not endanger the health and safety of any of its employees and
to maintain its facilities in a clean and sanitary condition. It also contains
a commitment that management will adhere to the basic principles of the CLC and
the Canadian Occupational Health and Safety Regulations dealing with minimum
standards for the health and safety of employees.
[9]
The
collective agreement also provides for the establishment of a joint
occupational health and safety (JOSH) committee. That committee includes employees
and representatives of the employer and is empowered, inter alia, to
consider and dispose of employee health and safety complaints, to establish and
maintain health and safety programs and to participate in workplace
investigations. The JOSH committee is also entitled to full access to all health
and safety reports prepared by the employer or at the employer’s request. Any
matter or complaint not resolved by the JOSH committee can be made the subject
of a grievance.
[10]
The
grievance procedure established by the collective agreement is in a typical
form. It provides for employees to present grievances for any “action or lack
of action” by the employer. Grievances are prosecuted through three levels.
Any grievance that is not resolved to the satisfaction of the employee and
which involves a matter falling within s. 62 of the PESRA can be referred to an
independent adjudication before the Board. This includes matters involving the
interpretation and application of the collective agreement. One can reasonably
conclude from these provisions that any breach by the employer of its
contractual health and safety obligations can be made the subject of a
grievance which ultimately can be submitted for final resolution by way of
independent adjudication.
[11]
In
collaboration with PSAC the House of Commons has also created a comprehensive
Health and Safety Policy (Policy). The stated objectives of the Policy are
threefold:
i.
to prevent
or minimize the incidence of injuries and illnesses in the workplace;
ii.
to provide
and promote a healthy and safe work environment; and
iii.
to
identify, control, mitigate or eliminate hazards in the workplace.
[12]
The
Policy provides a mechanism for resolving employee health and safety complaints
as an alternative to the grievance process. It contains a definition of
“danger” identical to that found in the CLC and includes a separate procedure
for complaints involving employees who refuse dangerous work. Under the
Policy, such refusals to work are treated in a manner very much like the CLC
provisions and without the potential disciplinary ramifications that can arise
under the collective agreement.
[13]
The
process for resolving complaints under the Policy is more informal than the
grievance process but it does involve a referral to the JOSH Committee which is
then required to conduct a prompt investigation. Where the Committee reaches a
consensus, management is required to take corrective action within 30 days. In
the absence of a consensus, the Policy requires that advice be sought from an
approved independent expert whose report must be referred back to the JOSH
Committee. If a disagreement remains, the dispute is to be determined by the
Clerk of the House of Commons or by the Clerk’s delegate. Even though this is
an internal resolution process it does contain arms-length elements through the
involvement of the JOSH Committee and the use of outside independent experts.
[14]
The
evidence before me is that PSAC and its members have never attempted to resolve
the health and safety concerns identified in the record before me by resorting
to their grievance rights under the collective agreement or by recourse under
the Policy.
II. Issues
[15]
(a) Is
the Applicants’ claim to relief justiciable?
(b) Does
the failure by the GIC to proclaim Part III of the PESRA constitute a breach of
the s. 7 Charter rights of the personal Applicants?
(c) Is
the Applicants’ claim to relief barred by their failure to exhaust their
internal rights of recourse?
III. Analysis
Justiciability
[16]
There
are a number of significant problems with the framing of this application not
the least of which is that the Applicants’ are not challenging a decision of
the GIC. Instead they seek mandatory relief from a failure by the GIC to act.
They are asking this Court to order the GIC to carry out the purely legislative
function of proclaiming legislation – a task which Parliament itself was not
willing to execute when it delegated the proclamation discretion over Part III
of the PESRA to the GIC in 1986.
[17]
The
Applicants seek to justify this judicial intrusion by asserting that the GIC
has ignored the will of Parliament by failing to proclaim Part III of the PESRA.
This argument is based on the false notion that by passing the PESRA, Parliament
intended that Part III of the CLC would apply to Parliamentary employees. In
fact, the very opposite is true. By delegating the power to proclaim Part III
of the PESRA to the GIC Parliament was obviously furthering an intent not to
apply the CLC to Parliamentary employees until the GIC determined that it was
appropriate and timely to do so. If it were otherwise Parliament would not
have delegated the power to proclaim to the GIC.
[18]
Once
such a delegation of authority has been made by Parliament, the decision to
proclaim is dependant upon the pleasure of the GIC unless and until Parliament
reclaims to itself that authority. What the Applicants’ are therefore seeking
from the Court is an order which would defeat the intent of Parliament not
advance it. That this would be an inappropriate intrusion into the legislative
realm is well reflected in the following passage from the decision of Justice
Bora Laskin in Reference re Criminal Law Amendment Act (Canada), 1968-69,
[1970] S.C.R. 777, 10 D.L.R. (3d) 699 at para. 82:
82 It is beside the point that the
result of the proclamation in this case may not be congenial to this Court. We
miss a step in the legislative process if we purport to read the consequences
of the proclamation back into the severable power to promulgate the
legislation. To look at the proclaimed legislation in the light of a supposed
parliamentary intention, gleaned from looking at the legislation as if it had
been made effective without the conditional terms of s. 120, is to truncate
that section and plunge into an abyss of speculation. Moreover, it is to make
an assumption that there was a limited trust reposed by Parliament in the
executive, and, further, that it lay with the Courts to enforce that trust. If
there has been a failure to live up to Parliament's expectations on the manner
in which the proclamation power should be exercised, the remedy does not lie
with the judges.
Also see: R. v. S. (S.) et al.,
[1990] 2 S.C.R. 254 at paras. 31 and 32 and Carrion v. Canada (Minister of
Employment and Immigration), [1989] 2 F.C. 584 at para. 14.
[19]
Other
authorities indicate very clearly that the courts must not usurp the
legislative function. Even where Charter principles might justify an intrusion
into the legislative area it is generally only the expression of the law, and
not the processes of its creation, that can be the subject of judicial attention
and then only with considerable caution. For this I rely upon cases such as R.
v. Langille (1992), 119 N.S.R. (2d) 79 (C.A.), Lucas v. Toronto Police
Service Board (2001), 54 O.R. (3d) 715 (Div. Ct.), Reference
re Criminal Law Amendment Act, above, at para. 80, Flora v. Ontario
Health Insurance Plan, 2008 ONCA 538 at para. 104 and Canadian Council
for Refugees v. Canada, 2008 FCA 229 at para. 53. Even in a case like Vriend
v. Alberta, [1998] 1 S.C.R. 493 Justice Cory was careful to point out at
para. 55 that the underinclusive legislation under review had been proclaimed.
[20]
The
evidence is also clear that the outstanding proclamation of Part III of the PESRA
has been under active consider by the GIC and by Parliament since at least December
24, 1986, when the GIC decided to proclaim into force Part I of PESRA but not
Parts II or III, up to and including a June 3, 2003 House of Commons vote. It is
quite clear from the record that the unwillingness of the GIC and Parliament to
confer CLC protection on Parliamentary employees has been based on a concern
that some of those provisions could conflict with the privileges of Parliament
including the privileges of its Members. It is certainly not the proper role
of a court to second-guess the wisdom of such choices or to pass judgment on
these types of legitimate competing values and interests. Such policy-based
choices are simply not an appropriate subject matter for judicial review: see Vriend,
above, at para. 136.
The Claim to Charter
Relief
[21]
As
I understand the Applicants’ position, it is that their s. 7 Charter interests
have been infringed by the failure of the GIC to extend to them the CLC health
and safety protections available to most other federal employees. This would
include the right to refuse to perform dangerous work without fear of
retaliation and to call in a Health and Safety Officer who may order
remediation of workplace hazards. The Applicants do not appear to be saying
that it is the actual working conditions in the Parliamentary Precinct that
give rise to a deprivation of their s. 7 rights but only that they are entitled
to greater legislative protection to effectively deal with the ongoing
workplace risks they claim to face.
[22]
The
Applicants’ s. 7 argument is certainly novel but it is not one that I am
disposed to accept. A person does not automatically suffer an interference
with a s. 7 security interest because of the absence of legislative
protection. Usually there must be some form of coercive or harmful government
conduct to support such a claim. Even if the working conditions in the
Parliamentary Precinct were sufficiently egregious to support an arguable claim
for s. 7 Charter relief (of itself a novel legal proposition), I cannot think
of any situation where the Court would find it appropriate to order Parliament
or the GIC to proclaim legislation as a solution. At most, the appropriate
relief would be limited to the correction of the problem at hand up to, and
perhaps including, the vacation of the premises. In that respect the
Applicants’ claim to mandatory relief is extraordinarily excessive and
unwarranted even if a Charter breach was evident on this record.
[23]
This
is also not a case which could ever support a positive duty under s. 7 of the
Charter because the record said to give rise to a deprivation of the
Applicants’ rights is woefully inadequate. This concern was duly noted by
Chief Justice McLachlin in Gosselin v. Quebec, [2002] 4 S.C.R. 429 at
para. 83 where she described the record before her as a “frail platform” to
support such a claim. This is a matter of even greater concern in the context
of an application like this one where the claimants have not attempted to build
a complete evidentiary record by first challenging the employer’s impugned
conduct through the collective agreement grievance process. Even the decision
by Justice Louise Arbour in Gosselin, above, upon which the Applicants
place heavy reliance, speaks to the need for a proper evidentiary record which
demonstrates that exclusion from a statutory regime has caused a substantial
interference with the exercise and fulfillment of a protected right (see para.
365). This would, of necessity, include a consideration of the adequacy of any
alternative measures that had been made available by the state to address the
problem at hand. On this record the asserted deprivation is more theoretical
than proven because the Applicants have failed to test the adequacy of the
alternative methods of recourse available to them. Those are processes which
might well have led to a determination that the prevailing working conditions
do constitute a serious and immediate health and safety hazard. That is not a
determination that is open to me in the face of the conflicting and untested
evidence in this record.
[24]
I
do not intend to delve any more deeply into the justiciability and Charter
issues raised by the Applicants because the failure by the Applicants to
exhaust their internal rights of recourse under the collective agreement and
the Policy is fatal to this application.
Alternate Recourse
[25]
The
Applicants’ attempt to justify their failure to enforce their health and safety
rights by arguing that those rights are inadequate in a number of respects and
that they fall short of the protective standards and processes that are
available under the CLC. For instance, they point to the absence in the Policy
of an obligation to provide health and safety information to PSAC and to employees.
They also express concern that enforcement of the Policy ultimately depends
upon the will of the Clerk of the House of Commons. These concerns are not,
however, particularly significant given that the collective agreement
recognizes both a disclosure obligation and recourse to arbitration. The concern
that the refusal to work provisions of the collective agreement are deficient
because of the stated potential for discipline also ignores the fact that the
Policy provides an alternate option to refuse dangerous work which does not
attract the risk of discipline.
[26]
The
Applicants’ criticisms of the Policy and the collective agreement are also
undermined by their failure to fully test those avenues of recourse and to
assess their adequacy. It is simply not good enough for the Applicants to
argue theoretically about the relative merits of different schemes for dealing
with workplace health and safety issues when they have failed to take the
obvious step of enforcing what appear to be very robust health and safety
obligations coupled with arbitral recourse and independent expert review.
Indeed, if PSAC is as concerned as it claims to be about failures by the
employer with respect to disclosure and the maintenance of a healthy and safe
workplace, it is difficult to understand why it has done nothing meaningful to
advance those concerns to a conclusion through either the collective agreement grievance
process or the more informal complaint process set out in the Policy. The only
excuses given for this failure are that either employees are concerned about the
possibility of retaliation if they refuse dangerous work or that any complaints
advanced were satisfactorily resolved. Inasmuch as there is no evidence that
the employer has ever acted in a retaliatory way, that concern is entirely
speculative. This is also not an excuse for the failure of PSAC to present a
grievance under Article 35.01 of the collective agreement alleging a breach of the
employer obligations to adhere to the basic principles of the CLC and to
conduct operations in a manner that will not endanger the health and safety of
employees. And even though the collective agreement does not match the CLC
protections with respect to the refusal to perform dangerous work, the Policy
does match the CLC provisions and surprisingly no one appears to have ever
tested its efficacy.
[27]
To
the extent that the Applicants have meritorious health and safety concerns,
they must be addressed within the collective agreement grievance process or
through the alternative dispute resolution mechanisms established by the
Policy. It is only in such a context that the evidence necessary to support
such claims can be presented and assessed. Those alternative processes need
only be adequate to the task and not perfect: see Froom v. Canada (Minister of
Justice),
[2005] 2 F.C.R. 195 (C.A.) at para. 12. Such an approach also avoids
the problem of judicial interference with the legislative and policy functions
of Parliament and the GIC.
[28]
Under
PESRA Parliament has created a scheme for dealing with labour issues including
the resolution of health and safety disputes and, by adopting the Policy, the
employer has attempted to supplement the statutory provisions. Those systems
should not be circumvented through the courts. There are many authorities
which recognize that principle of deference including Vaughan v. Canada,
[2005] 1 S.C.R. 146 where Justice Ian Binnie stated:
39 Sixthly, where Parliament has
clearly created a scheme for dealing with labour disputes, as it has done in
this case, courts should not jeopardize the comprehensive dispute resolution
process contained in the legislation by permitting routine access to the
courts. While the absence of independent third-party adjudication may in
certain circumstances impact on the court's exercise of its residual discretion
(as in the whistle-blower cases) the general rule of deference in matters
arising out of labour relations should prevail.
Also see Anderson v. Canada, [1997]
1 F.C. 273 (C.A.) at para. 4 and Jones v. Canada (Attorney
General),
[2007] F.C.J. No. 532, 2007 FC 386 at paras. 38-40.
IV. Conclusion
[29]
This
application for judicial review has no merit and must be dismissed. Costs are
awarded to the Respondent under Column IV.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed. Costs
are awarded to the Respondent under Column IV.
“ R. L. Barnes ”
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