Date: 20110119
Docket: A-214-10
Citation: 2011 FCA 20
CORAM: NOËL J.A.
EVANS J.A.
STRATAS
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
THE PROFESSIONAL INSTITUTE
OF THE PUBLIC SERVICE OF CANADA
Respondent
Heard at Ottawa, Ontario, on January
19, 2011.
Judgment delivered from the
Bench at Ottawa,
Ontario, on January
19, 2011.
REASONS FOR JUDGMENT OF THE COURT BY:
EVANS J.A.
Date: 20110119
Docket: A-214-10
Citation: 2011 FCA 20
CORAM: NOËL
J.A.
EVANS
J.A.
STRATAS
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
THE PROFESSIONAL INSTITUTE
OF THE PUBLIC SERVICE OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Ottawa, Ontario, on January 19,
2011)
EVANS J.A.
[1]
An essential
services agreement (ESA) concluded under the Public Service Labour Relations
Act, S.C. 2003, c. 22 (Act), between the employer and the bargaining agent
for a bargaining unit determines the limits on employees’ right to strike in
order to ensure that essential government services continue to be provided
during a strike.
[2]
When the
parties are unable to reach an agreement, subsection 123(3) of the Act provides
that, on an application under subsection (1), the Public Service Labour
Relations Board (Board) may determine any matter that may be included in an ESA
on which the employer and the bargaining agent have not agreed, and may order
that the matter determined by it is deemed to be part of the ESA.
[3]
This is an
application for judicial review by the Attorney General of Canada to set aside
a decision by the Board (2010 PSLRB 60), dated May 7, 2010. The Board held that
it could order the inclusion in an ESA of a description of the essential
services performed by a group of employees. The question arose in the context
of a dispute over the terms of the ESA applicable to members of the Computer
Systems Group employed in the Department of Public Safety and Emergency
Preparedness.
[4]
In reaching
its conclusion, the Board followed its previous decisions, especially the
leading case of Public Service Alliance of Canada v. Parks Canada Agency,
2008 PSLRB 97. It rejected the argument of Treasury Board (employer) that the
only matters that may be included in an ESA are those listed in the definition
of an ESA in subsection 4(1) of the Act: the types and number of positions, as
well as the specific positions, necessary for providing essential services.
[5]
The Board
held that under the former Act “designated position” had been the key concept
in defining the limit on the right to strike. Under the present Act, however,
this was replaced by the ESA and, the Board stated, without a description in
the ESA of the essential services in question, the scheme would be incoherent.
[6]
In support
of the application for judicial review, the Attorney General argues that the
standard of review applicable to the Board’s decision is correctness because
whether the Board may order that a description of the relevant essential
services be made a part of the ESA is a “true question of jurisdiction or vires”:
Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 59 (“Dunsmuir”)
[7]
We do not
agree. The question in dispute involves the interpretation of the Board’s “home”
statute: whether the definition of an ESA contained in subsection 4(1) is
exhaustive, as the employer argued. It also concerns, more generally, the role
of the ESA in the scheme of the Act, as opposed to “designated positions” in
the former Act or the analogous concept of “essential positions” on which the
employer relies, even though not found in the Act. These questions involve no
general legal concepts, nor raise questions of law that are of central
importance to the legal system and outside the expertise of the Board.
[8]
In
addition, section 51 of the Act contains a strong preclusive clause protecting the
Board’s decisions from judicial review. Although not explicit, the Board, as an
adjudicative body, has the implicit power to determine the meaning of its
constituent legislation in order to dispose of the matters before it.
[9]
These
considerations are strong indicators that the Court may only interfere with the
decision under review if satisfied that it was unreasonable: Dunsmuir at
paras. 52 and 54. In these circumstances, we are not persuaded that attaching a
priori the label “jurisdictional” to the provisions of the Act whose
interpretation is in dispute warrants review in this case on a standard of
correctness: Canadian Federal Pilots Association v. Canada (Attorney
General), 2009 FCA 223, 392 N.R. 128. That the Board described the issue
before it as “jurisdictional” is not determinative of the appropriate standard
of review to be applied by this Court on an application for judicial review of
the Board’s decision.
[10]
Nor are we
persuaded that the Board’s decision was made in excess of its jurisdiction
because it was unreasonable. In our view, the Board’s lengthy reasons deal
carefully with the employer’s arguments on the interpretation of the Act. They
provide an intelligible justification of its decision not to interpret the
provisions in subsection 4(1) concerning employees’ positions as exhaustive of the
content of an ESA that may be the subject of a Board order.
[11]
In
addition, when the text of the relevant provisions of the Act is considered
within its statutory context and objectives, including the contrast with the
former Act, the Board’s resolution of the interpretative issues before it falls
within the range of rationally defensible, possible outcomes.
[12]
For these
reasons, the application for judicial review will be dismissed with costs.
“John M. Evans”
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