C.A.T.C.A. v. The Queen, [1982] 1 SCR 696

Supreme Court of Canada

C.A.T.C.A. v. The Queen, [1982] 1 S.C.R. 696

Date: 1982-05-31

Canadian Air Traffic Control Association Appellant;

and

Her Majesty The Queen in right of Canada as represented by the Treasury Board Respondent;

and

The Public Service Alliance of Canada Intervener;

and

The Professional Institute of the Public Service of Canada Intervener.

File No.: 16762.

1982: February 2; 1982: May 31.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Labour relations—Public service—Designated employees—Nature and scope of the duty of the Public Service Staff Relations Board under s. 79 of the Public Service Staff Relations Act—Whether the Board erred—Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s. 79.

Following the Minister of Transport’s decision to maintain the commercial air system in the event of a strike, respondent requested the Public Service Staff Relations Board under s. 79(2) of the Public Service Staff Relations Act that most operational controllers in the Air Traffic Control Group be considered “designated employees”. Such employees cannot participate in a strike. Appellant objected to the employer’s request and pursuant to s. 79(3) the Board was required to determine the employees to be designated. The Board, however, assumed authority under s. 79 to determine what level of air services was necessary to be provided in order to ensure the safety and security of the public and the number of employees in the bargaining unit who would be needed to provide that level of service in the event of a strike. The Federal Court of Appeal allowed Crown’s

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appeal and set aside the Board’s order.

Held: The appeal should be dismissed.

The purpose of s. 79(3) was to determine, in advance of conciliation, what employees in the bargaining unit were precluded from going on strike. The task of the Board when called upon to make a determination under that section was to consider those employees in the bargaining unit who had been designated by the employer and to decide whether the performance of their stipulated duties as employees was necessary for public safety or security. It did not authorize the Board to determine the level of service to be provided.

APPEAL from a judgment of the Federal Court of Appeal (1981), 128 D.L.R. (3d) 685, setting aside a decision of the Public Service Staff Relations Board. Appeal dismissed.

John P. Nelligan, Q.C., and Catherine H. MacLean, for the appellant.

Robert Cousineau, for the respondent.

Maurice W. Wright, Q.C., for the intervener the Public Service Alliance of Canada.

Muriel I. Korngold-Wexler, for the intervener the Professional Institute of the Public Service of Canada.

John E. McCormick, for the Public Service Staff Relations Board (advisor only).

The judgment of the Court was delivered by

MARTLAND J.—The appellant has appealed from a judgment of the Federal Court of Appeal which set aside a decision of the Public Service Staff Relations Board (“the Board”), made in reliance upon s. 79 of the Public Service Staff Relations Act, R.S.C. 1970, c. P-35 (“the Act”), respecting the designation of employees in the Air Traffic Control Group Bargaining Unit, for which the appellant is the bargaining agent. The issue before the Court is as to the nature and scope of the duty imposed on the Board by the provisions of subs. (3) of that section.

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In order to determine that issue, it is desirable to consider the wording of s. 79 in relation to other relevant provisions of the Act dealing with the resolution of disputes between employer and employee in the Public Service of Canada.

The Act is entitled An Act respecting employer and employee relations in the Public Service of Canada. Part II of the Act is entitled Collective Bargaining and Collective Agreements. Within Part II are the provisions for the certification of bargaining agents to represent groups of employees in bargaining units. One of the duties of the certified bargaining agent is to select which of two alternative processes will be applicable to the resolution of disputes between those in the bargaining unit and the employer.

Subsection (1) of s. 36 of the Act provides as

36. (1) Subject to subsection 37(2), every bargaining agent for a bargaining unit shall, in such manner as may be prescribed, specify which of either of the processes described in the definition “process for resolution of a dispute” in section 2 shall be the process for resolution of any dispute to which it may be a party in respect of that bargaining unit.

The alternative processes “for resolution of a dispute” are defined in s. 2 of the Act to mean:

(a) the referral of the dispute to arbitration, or

(b) the referral thereof to a conciliation board.

Subsection 37(2) is not relevant to the issue in this appeal. It is concerned with the time when the specified process becomes applicable and the period during which it remains applicable. Section 38 provides for an alteration of the process by the bargaining agent.

Subsection 36(2) is relevant to the issue in this appeal. It provides as follows:

36. …

(2) For the purpose of facilitating the specification by a bargaining agent of the process for resolution of any dispute to which it may be a party in respect of a bargaining unit, the Board shall, upon request in writing to it by the bargaining agent, by notice require the employer to furnish to the Board and the bargaining agent a statement in writing of the employees or classes

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of employees in the bargaining unit whom the employer then considers to be designated employees within the meaning of section 79, and the employer shall, within fourteen days after the receipt of such notice, furnish such statement to the Board and the bargaining agent.

This subsection enables a bargaining agent, which is considering which process to select, to have recourse to the Board to have it require the employer to furnish a statement of those employees whom the employer considers to be designated employees within the meaning of s. 79. The importance of this is that by virtue of subs. 101(1) a designated employee cannot participate in a strike. That subsection provides:

101. (1) No employee shall participate in a strike

(a) who is not included in a bargaining unit for which a bargaining agent has been certified by the Board,

(b) who is included in a bargaining unit for which the process for resolution of a dispute is by the referral thereof to arbitration, or

(c) who is a designated employee.

It will also be noted that employees in bargaining units for which arbitration has been selected as the process for resolving disputes are not entitled to strike.

Part III of the Act deals with the resolution of disputes. Sections 60, 61 and 62 deal with the creation of the Public Service Arbitration Tribunal. Sections 63 to 76 deal with the arbitration procedures. Subsection 72(1) makes an arbitral award binding on the employer, the bargaining agent and the employees in the bargaining unit.

Sections 77 to 89 deal with the resolution of disputes by referral to a conciliation board. Unlike the arbitration process, the findings of a conciliation board are not binding upon the parties and, thus, the strike remedy is left open if conciliation fails.

The section with which we are concerned in this appeal, s. 79, is one of the group of sections dealing with the conciliation process. Sections 78 and 79 of the Act provide as follows:

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78. (1) Where, in respect of a dispute,

(a) any conciliator that may have been appointed under section 52 has made a final report to the Chairman that he has been unable to assist the parties in reaching agreement, and

(b) either party has requested the establishment of a conciliation board,

the Chairman shall establish a board for the investigation and conciliation of the dispute unless it appears to him, after consultation with each of the parties, that the establishment of such a board is unlikely to serve the purpose of assisting the parties in reaching agreement, in which case the Chairman shall forthwith notify the parties in writing of his intention not to establish such a board.

(2) In any case not provided for under subsection (1), the Chairman may establish a board for the investigation and conciliation of a dispute where it appears to him that the establishment of such a board may serve the purpose of assisting the parties in reaching agreement, and that without the establishment of such a board the parties are unlikely to reach agreement, but before establishing such a board the Chairman shall notify the parties of his intention to do so.

79. (1) Notwithstanding section 78, no conciliation board shall be established for the investigation and conciliation of a dispute in respect of a bargaining unit until the parties have agreed on or the Board has determined pursuant to this section the employees or classes of employees in the bargaining unit (hereinafter in this Act referred to as “designated employees”) whose duties consist in whole or in part of duties the performance of which at any particular time or after any specified period of time is or will be necessary in the interest of the safety or security of the public.

(2) Within twenty days after notice to bargain collectively is given by either of the parties to collective bargaining, the employer shall furnish to the Board and the bargaining agent for the relevant bargaining unit a statement in writing of the employees or classes of employees in the bargaining unit who are considered by the employer to be designated employees.

(3) If no objection to the statement referred to in subsection (2) is filed with the Board by the bargaining agent within such time after the receipt thereof by the bargaining agent as the Board may prescribe, such statement shall be taken to be a statement of the employees or classes of employees in the bargaining unit who are agreed by the parties to be designated

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employees, but where an objection to such statement is filed with the Board by the bargaining agent within the time so prescribed, the Board, after considering the objection and affording each of the parties an opportunity to make representations, shall determine which of the employees or classes of employees in the bargaining unit are designated employees.

(4) A determination made by the Board pursuant to subsection (3) is final and conclusive for all purposes of this Act, and shall be communicated in writing by the Chairman to the parties as soon as possible after the making thereof.

(5) Within such time and in such manner as the Board may prescribe, all employees in a bargaining unit who are agreed by the parties or determined by the Board pursuant to this section to be designated employees shall be so informed by the Board.

The purpose of s. 79 would appear to be that, in respect of a bargaining unit whose bargaining agent has elected for the conciliation process for determining disputes, before a conciliation board is established, both the employer and the bargaining agent should be aware of the number of employees who are “designated employees” because their duties consist in whole or in part of duties which at any particular time or after any specified period of time are or will be necessary in the interest of the safety or security of the public. As previously noted, designated employees cannot participate in a strike, and so the s. 79 procedure establishes which employees in the bargaining unit will be precluded from participating in a strike if the conciliation process should prove to be unsuccessful.

The circumstances which gave rise to the present case are as follows. The bargaining unit which is involved is the Air Traffic Control Group. The respondent Treasury Board is the employer of the employees in that bargaining unit. The appellant, the Canadian Air Traffic Control Association, is the bargaining agent for that bargaining unit. On November 20, 1980, the respondent furnished to the Board its statement in writing, pursuant to subs. 79(2) of the Act, of the employees in the bargaining unit who were considered by the employer to be designated employees. The statement listed all 1,782 operational controllers in the

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Air Traffic Control Group. All operational controllers were proposed for designation following a decision by the Minister of Transport, endorsed by the Government, that the commercial air system must be maintained in the event of a strike. The appellant filed its objection to the respondent’s statement pursuant to subs. 79(3) of the Act on November 26, 1980. On January 6, 1981, the Board held a hearing to determine what effect, if any, the decision of the Minister of Transport that commercial air services must be maintained had on the jurisdiction of the Board under s. 79 of the Act. By its decision dated January 27, 1981, the Board found that there were no provisions in any statute which fettered its authority under s. 79 of the Act. The Board therefore found that in making determinations in respect of designated employees it was not “bound to take into account ministerial or governmental pronouncements as to the level of service to be maintained”. The Board directed that there be a continuation of the hearing so that it could make a determination as to “the number and classes of air traffic controllers whose duties [would be] necessary in the interest of the safety or security of the public during a strike by the Air Traffic Control Group”. (Emphasis added.)

By letter dated February 12, 1981, the respondent reduced the number of employees it considered to be designated to 1,462, but added 231 alternates. The respondent’s submission at the hearing was that, given the decision taken by the Minister of Transport and endorsed by the Government to maintain normal air services, most, if not all, operational air traffic controllers were performing duties necessary in the interest of the safety and security of the public. It was conceded by the appellant that, if normal air services were to be maintained, the number of designated employees proposed by the respondent was reasonable.

The appellant’s submission was that the Board should designate 227 employees and 151 alternates to handle flights involved in mercy missions, air

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evacuation, military operations and northern supply as well as to perform certain other duties. The appellant’s position was based on the fact that, until 1981, the Board had never been called upon to make a designation under subs. 79(3). The appellant and the respondent had previously agreed upon the designation of a relatively small number of air controllers, representing about 10 to 15 per cent of the number of employees in the bargaining unit. These arrangements had been possible because both parties had assumed that, in the event of a strike by the air controllers, all commercial air traffic would stop. This situation was changed following the governmental decision to maintain the operation of the commercial air system.

The Board adopted the appellant’s submission. It considered that its duty under s. 79 was to determine the number of employees of each class in the bargaining unit which would be needed in order to provide the services necessary to ensure the safety of the air services that, in the event of a strike, must be maintained in the interest of the safety or security of the public. On that basis, it proceeded to enumerate the various duties that, in the event of a strike, would be required to be performed by different classes of employees in the unit in the interest of the safety or security of the public and it determined the number of employees of each class, in each work location, that would have to perform those duties in the event of a strike. As a result, it designated 272 employees and 151 alternates to perform the duties outlined in its decision.

The position of the Board is stated in the following passage from the majority decision:

The Board went on to say that implicit in making its determinations as to the number or classes of air traffic controllers needed for “designation” in the instant case, is the requirement that it make a decision as to the level of services by air traffic controllers that are necessary to be maintained at federal government regulated airports in order to ensure the safety or security of the public in the event of a lawful strike by members of the unit.

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The Board assumed the authority to determine what level of air services was necessary to be provided in order to ensure the safety or security of the public. Thus, for example, in relation to employees in airport control towers, it directed that such employees should provide air traffic control services, based on known traffic, to aircraft in the following categories:

(a) aircraft in declared or apparent emergency;

(b) aircraft engaged in air evacuation operations;

(c) mercy flights, transportation of medical personnel and essential medical equipment and supplies including flights transporting essential supplies to isolated locations;

(d) military aircraft on operational missions;

(e) search and rescue aircraft (including normal patrol activities);

(f) aircraft engaged in forest firefighting duties.

The respondent applied under s. 28 of the Federal Court Act, R.S.C. 1970, (2nd Supp.), c. 10, to set aside the Board’s order, and the application was granted in a unanimous decision.

Pratte J., dealing with s. 79, expressed the following opinion:

It is also clear, in my view, that section 79 merely empowers the Board to designate employees or classes of employees on the basis of their duties as they exist at the time the designation is made. The nature of those duties at that time is, therefore, the only factor which the Board may take into account in carrying out its functions under section 79.

Urie J., in concurring reasons, said:

These clarifications of the Board’s views serve a useful purpose in that they demonstrate the error made by the Board more clearly, perhaps, than the quotations earlier set out herein from the Board’s decision of January 27, 1981. They show that the Board perceived its duty to be,

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first, “to determine which services …” provided by the air traffic controllers must be maintained and, second, to determine the number and classes of air traffic controllers to be designated to provide such services. But that is not what section 79 directs. As I read the section, it does not impose on the Board the duty of determining which services rendered by the controllers must be maintained in the event of a strike. Moreover, it does not require or authorize the Board to determine the number or classes of employees to be designated to perform those duties or to prescribe limitations on the scope of the duties of various employees or classes of employees for such purpose.

The sole duty of the Board pursuant to subsection 79(1) is to determine, before a conciliation board has been established, what employees or classes of employees in the bargaining unit are, at the date the matter is being determined performing duties which are necessary for the safety and security of the public. Neither the wording of the subsection taken by itself or in the context of the Act as a whole contemplate that such a determination is to be made on the basis of the safety and security necessities of the public only in a strike situation.

In his concurring reasons, Kerr D.J. referred to the minority decision of the Board:

What the majority members of the Board did (and the view of the dissenting minority) is stated in the following concluding sentences of the minority decision as follows:

The Board’s decision is to restrict the provision of safety or security to a very limited portion of the public and we are unable to concur in this. We would have designated all of those air traffic controllers who normally fulfill the operational function of ensuring the safe and expeditious movement of aircraft through controlled air space and on the manoeuvring areas of airports.

In accordance with the direction of the Federal Court of Appeal, on November 19, 1981, the Board determined that all operational air traffic controllers in the Air Traffic Control Group Bargaining Unit should be designated employees within the meaning of s. 79.

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I am in agreement with the decision of the Federal Court of Appeal and the reasons for that decision. It is apparent from the foregoing consideration of the Board’s original decision and the opinions of the Federal Court of Appeal with respect to it that the Board construed s. 79 as giving to it the authority to determine what level of air services should be provided in Canada in the interest of the safety or security of the public. It was that level of service which the Board should ensure would be provided in the event of a strike by the air controllers and it was the task of the Board under s. 79 to designate such employees in the bargaining unit as would be necessary for the performance of the duties necessary to provide that level of service.

With respect, I do not agree with that construction of the section, nor do I regard s. 79 as having been enacted for that purpose. It has already been noted that the Act did not impose a compulsory arbitration method as the means for settling disputes between the government and civil servants. It recognized and provided for collective bargaining. It gave to bargaining agents representing bargaining units in the civil service the option of having disputes between employer and employee settled by binding arbitration or by a conciliation procedure.

The conciliation method did not preclude the strike weapon from being used if the conciliation procedure was unsuccessful. However, the right to strike, where conciliation had failed, was subject to the limitation imposed by ss. 79 and 101. Before a conciliation board is appointed, the employer must furnish a list of those employees or classes of employees whom the employer considers should be designated employees, i.e. those employees or classes of employees within the bargaining unit whose duties, in whole or part, consist of duties the performance of which at any particular time or after any specified period of time is or will be necessary in the interest of the safety or security of the public. If the bargaining agent objects to the statement, the Board must determine which employees in the bargaining unit are to be designated employees. Designated employees cannot participate in a strike.

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In substance, then, Parliament, by enacting s. 79, was saying that while a bargaining agent might opt for the conciliation procedure and, thus, for possible strike action, those employees in the bargaining unit who performed duties necessary in the interest of public security or safety would not be permitted to participate in a strike.

As I see it, the task of the Board when called upon to make a determination under subs. 79(3) is to consider those employees and classes of employees in the bargaining unit who have been designated by the employer, and to decide whether the performance of their stipulated duties as employees is necessary for public safety or security.

The whole procedure provided for in s. 79 occurs prior to the establishment of a conciliation board. I can find nothing in the section to indicate that the function of the Board is to determine, if conciliation should fail, what services normally provided by employees in the bargaining unit are, in the event of strike action, necessary to be continued in the interest of public security or safety, and the section contains no reference to any power in the Board to designate the duties of employees necessary in the interest of the safety or security of the public during a strike.

I agree with Urie J. when he says:

… the subsection merely empowers the Board to designate the employees whose duties are related to the safety or security of the public. It does not authorize the Board to determine the level of service to be provided.

Counsel for the appellant took issue with the judgment of the Federal Court of Appeal in finding that the task of the Board under subs. 79(3) was to determine, at the time the determination was to be made, which employees were performing duties necessary for the safety and security of the public. He stressed the words which appear in subs. 79(1) in the definition of designated employees “whose duties consist … of duties the performance of which at any particular time or after any specified period of time is or will be

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necessary in the interest of the safety or security of the public”. (The emphasis is that of counsel.) He contended that these words meant that the Board should make a determination of what duties would be necessary in the event that a strike occurred.

I cannot accept this submission. The Board is called upon to make a determination before a conciliation board has been established. Strike action can only occur if the conciliation procedure has been followed and has failed. To construe the words in the manner suggested is to strain their meaning unduly. The wording of the section does not call upon the Board to determine what employees should be designated employees if conciliation fails and a strike occurs. The purpose of the section is to determine, in advance of conciliation, what employees in the bargaining unit are precluded from going on strike.

Counsel for the appellant also contended that the interpretation of s. 79 made by the Federal Court of Appeal would reduce the effectiveness of legitimate strike action. The result of the Court’s decision is certainly to impair the impact of a strike by employees in the bargaining unit involved here but that does not mean that the decision is wrong. The members of the bargaining unit involved in this case are nearly all persons the nature of whose duties brings them within the definition of designated employees and Parliament has decided that designated employees are not permitted to strike. It was open to the appellant prior to making its election in favour of the conciliation procedure, under s. 36, to have invoked subs. 36(2) to ascertain which employees in the bargaining unit would be considered by the employer to be designated employees. If that designation involved most of the members of the bargaining unit, the bargaining agent could then have elected for the arbitration procedure.

For these reasons I would dismiss this appeal with costs. There should be no costs payable by or to either of the interveners.

Appeal dismissed with costs.

Solicitors for the appellant: Nelligan & Power, Ottawa.

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Solicitor for the respondent: The Attorney General of Canada, Ottawa.

Solicitors for the intervener the Public Service Alliance of Canada: Soloway, Wright, Houston, Greenberg, O’Grady and Morin, Ottawa.

Solicitor for the intervener the Professional Institute of the Public Service of Canada: Muriel I. Korngold- Wexler, Ottawa.

Solicitor for the Public Service Staff Relations Board: John E. McCormick.