Date: 20110426
Docket:
A-462-09
Citation: 2011 FCA 143
CORAM: NOËL
J.A.
SHARLOW
J.A.
DAWSON J.A.
BETWEEN:
PROFESSIONAL
INSTITUTE OF THE PUBLIC SERVICE OF CANADA
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR
JUDGMENT
NOËL J.A.
[1]
This
is an application for judicial review brought by the Professional Institute of
the Public Service of Canada (the applicant) against a decision of the Public
Service Labour Relations Board (the Board) dated October 14, 2009. The Board
was asked to identify the facilities and services, or the activities performed,
by the Computer Systems Group (the CS Group) at the Canada Border Services
Agency (the CBSA) that are necessary for the safety or security of the public.
[2]
The
applicant contends that the definition of essential services given by the Board
is overly broad and general to the point that it does not assist the parties in
the determination of the types of positions, the number of positions and the
specific positions to be included in an essential services agreement. As such,
the Board failed to exercise the authority conferred upon it by virtue of
section 123 of the Public Service Labour Relations Act, S.C. 2003, c.
22, s. 2 (the PSLRA).
[3]
The
Attorney General, acting on behalf of Treasury Board (the respondent or the
employer), maintains that the definition is sufficiently precise to meet the
statutory objective.
[4]
For
the reasons which follow, I am of the view that the application for judicial
review should be allowed and that the matter should be remitted back to the
Board for re-determination.
FACTUAL BACKGROUND
[5]
The
Treasury Board is the employer of the CS Group and the applicant is the
bargaining agent.
[6]
On
August 12, 2008, the Treasury Board filed an application under subsection
123(1) of the PSLRA, about matters that may be included in an essential
services agreement covering positions in the CS Group. The application covered
positions in eight departments or agencies. The parties and the Board agreed
that each department or agency would be addressed separately. The present
application concerns the CS Group at the CBSA.
[7]
Prior
to and during the hearing, the parties agreed on a number of important issues.
First, that the CBSA performs a number of services necessary for the safety and
security of Canadians to ensure that persons or goods of risk do not enter or
leave Canada. Second,
that the support of the 38 computer systems or equipment listed in the Exhibit
annexed to the Board’s decision is necessary for the safety and security of
Canadians and third, that the CS Group of employees at the CBSA “support” those
computer systems.
[8]
Amongst
the services provided by the CS Group of employees at the CBSA, the parties proposed
to define “essential services” as follows:
Applicant’s Proposal
The essential activity provided
by CS employees at the CBSA is the support, in maintenance mode, of the
agreed-upon computer systems, applications and programs.
Respondent’s Proposal
All services delivered by or
activities performed by certain CS Group positions at the CBSA with respect to:
1. securing the Canadian
border, as well as
2. managing the access of people and
goods (including food, plants, and animals) to and from Canada
are necessary for the safety
or security of the public.
[9]
The Board rejected both definitions and provided
a definition which in its view was of assistance in establishing an essential
services agreement.
APPLICABLE LEGISLATION
[10] Section 4 of the PSLRA defines both “essential service” and
“essential services agreement”:
|
“essential service” means a service, facility or activity
of the Government of Canada that is or will be, at any time, necessary for
the safety or security of the public or a segment of the public
…
“essential services agreement” means an agreement between
the employer and the bargaining agent for a bargaining unit that identifies
(a)
the types of positions in the bargaining unit that are necessary for the
employer to provide essential services;
(b)
the number of those positions that are necessary for that purpose; and
(c)
the specific positions that are necessary for that purpose.
|
« services essentiels » Services, installations
ou activités du gouvernement du Canada qui sont ou seront nécessaires à la
sécurité de tout ou partie du public.
[…]
« entente sur les services essentiels » Entente conclue
par l’employeur et l’agent négociateur indiquant :
a) les types des postes
compris dans l’unité de négociation représentée par l’agent négociateur qui
sont nécessaires pour permettre à l’employeur de fournir les services
essentiels;
b) le nombre de ces
postes qui est nécessaire pour permettre à l’employeur de fournir ces
services;
c) les postes en
question.
|
[11] Under subsection 123(1)
of the PSLRA, the parties may apply to have the Board determine any unresolved
matter that may be included in an essential services agreement. The Board has
the power to resolve such disputes pursuant to subsection 123(3):
|
123. (1) If the
employer and the bargaining agent are unable to enter into an essential
services agreement, either of them may apply to the Board to determine any
unresolved matter that may be included in an essential services agreement.
The application may be made at any time but not later than
(a)
15 days after the day a request for conciliation is made by either party; or
(b)
15 days after the day the parties are notified by the Chairperson under
subsection 163(2) of his or her intention to recommend the establishment of a
public interest commission.
…
(3) After considering the application, the Board may
determine any matter that the employer and the bargaining agent have not
agreed on that may be included in an essential services agreement and make an
order
(a)
deeming the matter determined by it to be part of an essential services
agreement between the employer and the bargaining agent; and
(b)
deeming that the employer and the bargaining agent have entered into an
essential services agreement.
…
|
123. (1) S’ils ne parviennent pas à conclure une
entente sur les services essentiels, l’employeur ou l’agent négociateur
peuvent demander à la Commission de statuer sur toute question qu’ils n’ont
pas réglée et qui peut figurer dans une telle entente. La demande est
présentée au plus tard :
a) soit quinze jours
après la date de présentation de la demande de conciliation;
b) soit quinze jours
après la date à laquelle les parties sont avisées par le président de son
intention de recommander l’établissement d’une commission de l’intérêt public
en application du paragraphe 163(2).
[…]
(3) Saisie de la demande, la Commission peut statuer sur
toute question en litige pouvant figurer dans l’entente et, par ordonnance,
prévoir que:
a) sa décision est
réputée faire partie de l’entente;
b) les parties sont
réputées avoir conclu une entente sur les services essentiels.
[…]
|
DECISION OF THE BOARD
[12] After
summarizing the position of the parties, the Board framed the issue before it
as the identification of the facilities and services provided, or the
activities performed, by the CS Group that are necessary for the safety or
security of the public. The Board then identified two principles that must
guide the manner in which a service, activity or facility is defined. The first
is that (reasons at para. 155):
… it should be defined in a
manner that fulfills its purpose. That purpose is to allow the employer and the
bargaining agent to proceed to the other steps in establishing an [essential
services agreement] set out in the definition of an [essential services
agreement] in subsection 4(1) of the PSLRA, which are identifying the types of
positions that are necessary [for] providing the essential service, the level
of service, the number of positions necessary for that purpose and the actual
positions that provide that service.
[13] The second
principle is that “however broad or narrow the definition, it must only include
positions that are necessary for the safety or security of Canadians” (reasons
at para. 156).
[14] The Board
then rejected the Treasury Board’s proposed definition as too broad since it
would capture positions that are clearly not necessary for the safety and
security of the public (reasons at para. 157). The Board also rejected the
applicant’s contention that the provision of support to each of the 38 computer
systems by the CS Group of employees should be viewed for purposes of the
definition as a distinct essential service or activity (reasons at para. 160).
[15] In this
respect, the Board chose not to include in its order the list of 38 systems
agreed upon by the parties as being essential because it was of the view that
those systems may be replaced or new ones may be added due to technical
changes. According to the Board, the replacement or addition of new systems
would make such a reference impractical, as it could require that amendments be
brought to the definition (reasons at para. 160).
[16] The Board
then stated (reasons at para. 165):
I believe that it is possible to define the essential
services in a manner that reflects the fact that both the [employer] and the
[applicant] agree that it is necessary to protect Canadians against persons and
goods that pose a risk to the safety and security of the public, that would
only capture services or activities that are related to those purposes, that
would not be tied narrowly to equipment, and that would enable the parties to
identify the other elements of the [essential services agreement]. Defining
essential services in the following manner would attain those goals:
The provision of computer
systems and services related to securing the border by managing the access of
people and goods (including food, plants and animals) to and from Canada for the purpose of
protecting the safety or security of the public.
That wording would not capture activities related to
customs, excise or trade agreements since they are not related to the safety
and security of the public. The above wording would also allow the [employer]
to change computer systems or equipment when required since the definition is
not narrowly tied to equipment or systems. It will be fairly easy for the
parties to identify the other components of the [essential services agreement],
such as the types of positions necessary for providing those essential
services, especially since the parties have already agreed on the computer
systems that should be used for those purposes.
[17] The above
captioned definition is reproduced in the order giving effect to this decision.
POSITION OF THE
APPLICANT
[18] The applicant
first notes that the accepted standard of review with respect to decisions by
the Board is reasonableness, with the exception of true jurisdictional questions.
Although the Board’s failure to exercise its jurisdiction is alleged, the
applicant recognizes that the underlying question, i.e. whether the
Board’s definition is insufficiently precise to meet the statutory objective, stands
to be reviewed on a standard of reasonableness.
[19] According to
the applicant, this lack of precision makes it impossible to identify the types
of positions, the number of positions, and the specific positions necessary to
provide essential services. The applicant adds that precision is required in
order to “reduc[e] the possibility that an essential service may be defined too
broadly and thus result in the unintended removal of the right to strike”
(applicant’s memorandum at para. 23). The applicant points to a number of decisions
by the Board which emphasize the need for precision when defining an essential
service: Public Service Alliance of Canada v. Parks Canada Agency, 2008
PSLRB 97 at para. 202 [Parks Canada]; Public Service Alliance of Canada v. Treasury
Board (Program and Administrative Services Group), 2009 PSLRB 55 at para.
76 [PM Group]; Public Service Alliance of Canada v. Treasury Board,
2009 PSLRB 155 at paras. 41-42 [Border Services].
[20] The applicant
further submits that the Board’s definition in the present case is tautological
because it simply repeats the statutory definition of essential service
contained in subsection 4(1) of the PSLRA. Furthermore, the applicant points
out that the Board did not include in its order the limitation identified in
its reasons according to which the definition “would not capture activities
related to customs, excise or trade agreements since they are not related to
the safety and security of the public” (reasons at para. 165). The applicant
argues that even if the order was deemed to include that limitation, it would
still be too imprecise.
[21] The applicant
points to two prior decisions by the Board to highlight how essential services
should be identified and defined. The first decision concerns border services
officers at CBSA (Border Services at para. 51). The second decision
concerns the CS Group of employees at the Department of Public Safety (Treasury
Board v. Professional Institute of the Public Service of Canada, 2010 PSLRB
15 at para. 101 [PIPSC]).
[22] Lastly, the
applicant contends that the Board relied on a pure conjecture in refusing to
incorporate into the definition of essential services the systems and equipment
which the parties agreed were required to perform such services.
POSITION OF THE
RESPONDENT
[23] The respondent agrees
that the question whether the proposed definition is insufficiently precise to
meet the statutory objective is to be assessed on a standard of reasonableness.
[24] The respondent submits
that the Board’s decision is reasonable for four reasons. First, it contends
that the PSLRA is still a position-based scheme as was the now-repealed Public
Service Staff Relations Act, R.S.C. 1985, c. P-35. This argument was raised
by the respondent in its memorandum of fact and law which was written prior to
the release of Canada (Attorney General) v.
Professional Institute of the Public Service of Canada, 2011 FCA 20 [Public
Safety, F.C.A.]. In that case, this Court confirmed the decision of the
Board in Treasury Board v. Professional Institute of Public Service of
Canada, 2010 PSLRB 60 [Public Safety], which held that the scheme
underlying the PSLRA is service-based and not position-based.
[25] Nevertheless, counsel
for the respondent maintained during the hearing before us that the ultimate
purpose of the scheme under the PSLRA remains the identification of the positions
that are essential to the provision of essential services, and that accordingly
the definition of essential services and in particular the precision with which
these services are defined do not have the importance which the applicant
attributes to it.
[26] Second, the respondent
contends that the Board’s decision enables the identification of positions
because the description of essential services can be simplified, the ratio
decidendi of the Board’s decision enables the identification of positions,
and a description of the essential services is not required content of an
essential services agreement.
[27] Third, with respect to
the applicant’s contention that the Board relied on a conjecture about the
replacement of computer systems, the respondent submits that the Board relied
upon direct evidence that was uncontradicted or made reasonable inferences.
[28] Lastly, with respect to
the applicant’s contention that the Board failed to determine whether the
development of new equipment was an essential service, the respondent contends
that the issue is irrelevant as the parties share the same view. Indeed, the
Treasury Board never took the position that developing new equipment was an
essential service.
ANALYSIS
[29] I accept the parties’
joint submission that the question whether the definition provided by the Board
is sufficiently precise to meet the statutory objective is to be assessed on a
standard of reasonableness.
[30] In Parks Canada,
the Board heard its first essential services dispute under the PSLRA. In that
decision, it established what it called an “analytical path”, which is a
three-stage approach leading to an essential services agreement. The first
stage is to determine what services are necessary to insure public safety or
security in the event of a strike. The second stage is to determine the level
of service to be performed during a strike. The last step is to determine the
types of positions, the number of positions and the specific positions
necessary to provide essential services at the determined level of service. No
one appears to take issue with this approach.
[31] However, there appears
to be a continuing debate between the parties as to the nature of the scheme set
out in the PSLRA. The respondent took the position before us that the ultimate
purpose is to identify the essential positions and that this is the context in
which the propriety of the definition should be addressed. The applicant on the
other hand argued that the ultimate purpose is to identify the essential
services emphasizing the importance of arriving at a useful definition of such
services.
[32] In my respectful view,
this issue has been settled by the recent decision of this Court upholding the
decision of the Board in Public Safety. The question before the Board in
Public Safety was the very question which the respondent now seeks to
raise. The Board, after noting the employer’s acceptance of the analytical path
set out in Parks Canada, identified and disposed of the argument as
follows (Public Safety at paras. 99-101):
99. Now, the [employer] advances an alternate theory of
the [PSLRA] that identifies “essential positions” as its central operative
element. It contends that “… the PSLRA is clearly a position-based scheme …”
and that “… [t]he ultimate purpose of this scheme is to identify actual
[e]ssential [p]ositions”.
100. In my view, those propositions are plainly wrong. In
essence, the [employer] is giving a new name – “essential position” – to the
old concept of a “designated position” and arguing that, at the end of the day,
nothing really matters other than arriving at the list of “essential
positions”. Why would the legislator have gone to the length of enacting a
completely different regime governing essential services if, as the applicant
appears to maintain, the real purpose and objective remain the same? Why would
the legislator have created the concept of an “essential services agreement”
and fashioned a process where the definition of “essential services” is the
first and primordial requirement if “… the PSLRA is clearly a position-based
scheme …”?
101. The answer is clearly that that was not the
legislator’s intent. Identifying “type of positions”, the “number of those
positions” or the “specific positions” are elements required to achieve the
objects of the [PSLRA] but only in the sense that essential services must
necessarily be delivered by the incumbents of positions. Positions, as such,
are not essential. Incumbents of positions deliver a range of services defined
as their assigned duties by the employer. Some subset of those duties – or,
perhaps, all of those duties in some exceptional circumstances – will be
determined by the parties or by the Board to be essential to safeguarding the
safety or security of the public. The “balance” that the [PSLRA] seeks to
achieve is between ensuring that those defined essential services are
maintained in the event of the strike while at the same time giving real
meaning to the right to strike enshrined by the [PSLRA]. The crucible is the
definition of “essential services”.
[33] The above reflects the
essence of the reasoning which this Court approved in dismissing the judicial
review application which followed (Public Safety, F.C.A. at paras. 3, 4,
5, 7, 10 and 11). As such, the matter has been decided and the respondent has
not raised any ground which would justify the issue being revisited (Miller
v. Canada (Attorney General), 2002 FCA 370 at para.
10). It follows that for present purposes, the definition of essential services
must be understood to be the corner stone of the scheme or, in other words,
that from which all else follows.
[34] In the present case, the
Board acknowledged that its task at the first stage of the analytical path, was
to determine the services that are necessary in order to insure public safety
or security. According to the Board, the definition set out in the order that
it gave achieves this goal. The full text of the order reads:
The Essential Services Agreement for the
Computer Systems Group at CBSA will include the following provision:
The provision of computer
systems and services related to securing the border by managing the access of
people and goods (including food, plants and animals) to and from Canada for the purpose of
protecting the safety or security of the public.
[35] In its reasons, the
Board stated that the above wording “would not capture activities related to
customs, excise or trade agreements since they are not related to the safety
and security of the public” (reasons at para. 165). This limitation does not
necessarily follow from the definition set out in the order. However, even if
one was to read the order as incorporating this limitation, the Board’s
definition remains problematic.
[36] First, the phrase “for
the purpose of protecting the safety or security of the public” is taken from
subsection 4(1) of the PSLRA. Incorporating the words of subsection 4(1) into
the order is of no assistance in identifying the types of positions, the number
of positions and the specific positions necessary to provide essential services
for the purposes of an essential services agreement. Indeed, parties attempting
to apply the Board’s definition will be obliged to interpret and apply the very
statutory phrase that, given the statutory mandate set out in subsection 123(1),
should have been interpreted and applied by the Board.
[37] Second, the phrase
“provision of computer systems and services” is of little assistance in
identifying the types, number and specific positions necessary to provide
essential services. In this respect, the word “provision” which appears twice
in the order is defined, inter alia, as “the action of providing or
supplying”. In turn, the verb “provide” means “make available for use; supply”
(The Concise Oxford Dictionary, 10th edition, Oxford
University Press, 2001). As a result, the phrase “provision of computer systems
and services” could arguably encompass every action that relates to computer
services with respect to the 38 systems agreed upon by the parties.
[38] A comparison with a
recent decision of the Board dealing with the CS Group of employees at the
Department of Public Safety highlights the deficiencies of the proposed
definition. In PIPSC at paragraph 101, the Board defined essential
services in the following manner:
For Public Safety Canada, the
essential services performed by members of the Computer Systems Group are as
follows:
For the Government Operations
Centre, including the Canadian Cyber Incident Response Centre, the following
services are essential:
(a) installing, testing,
maintaining and repairing,
(b) identifying,
investigating and resolving compatibility issues and malfunctions for, and
(c) providing direct
technical assistance for the software, systems, applications and devices used directly
to identify and analyze risks or threats that may require a response
coordinated by the [Government Operations Center], to communicate information
to partners about those risks and threats, and to take actions and provide for
the immediate expenditure of emergency funds to prevent, mitigate, prepare for,
respond to and recover from those risks and threats.
For the Canadian Cyber
Incident Response Centre, the following services are essential: analyzing and
assessing cyber risks and threats, planning responses for and responding to
cyber risks and threats, including developing and processing reports related to
cyber emergencies, reviewing and developing incident and technical reports, and
delivering security programs for cyber threats.
[39] In an earlier decision
dealing with Border Services Officers at CBSA, the Board gave a definition of
essential services which also highlights the deficiencies of the proposed
definition (Border Services):
51 The essential
services agreement for the bargaining unit will include the following
provision:
The following services delivered
or performed by Border Services Officers are necessary for the safety or
security of the public:
1. Conducting inspections,
examinations and verifications of travellers, goods and conveyances to reach
release-or-entry decisions and deciding appropriate action when non-compliance
is suspected or encountered.
2. Providing a first-response
capability with powers to arrest or detain individuals suspected of having
committed offences under various Acts of Parliament.
3. Maintaining effective
relations, interactions and exchanges with clients, stakeholder organizations
and law enforcement agencies to maintain border integrity and security.
4. Analyzing data and
information for inclusion in databases for use in client service, risk
management and targeting people or goods to maintain border integrity and
security.
5. Completing briefing notes,
technical reports, client files, statements and seizure reports to update
databases to maintain border integrity and security.
For greater certainty, the
following services delivered or performed by Border Services Officers are not
necessary for the safety or security of the public:
1. Assessing and collecting
duties, taxes, fees and fines.
2. Completing briefing notes,
technical reports, client files and statements not related to maintaining
border integrity and security.
3. Providing information,
through sessions, technical workshops and outreach activities to travelers,
importers and exporters to educate them concerning the legislation, regulations
and procedures of the CBSA and other government departments/agencies to
encourage voluntary compliance and to respond to enquiries, concerns and
service complaints.
[40] The respondent submitted
that the Board does not have to provide the level of details as in the previous
cases. It points to the Board’s decision in PM Group, as an example of a
simplified approach to the definition of essential services:
106 An [essential
services agreement], however, need not be cast at the same level of detail as
is appropriate for a job description. The latter is a tool created for the
primary purpose of classifying a position against a classification standard.
The description of an essential service in an [essential services agreement]
exists for a quite different purpose. It needs to be sufficiently specific to
identify what major functions should continue in the event of a strike as well
as to facilitate determinations about other required content elements in an
[essential services agreement] -- mainly, the final number of positions that
will be necessary to provide the essential service should strike action occur.
To that end, the Board does not expect that [essential services agreements]
will necessarily look like a collection of excerpts from classification
documents.
The order in that case read as follows:
110 The Essential Services Agreement (ESA) for the Program and
Administration Group will include the following provision:
The following
services delivered by, or activities performed by, PM-01 Citizen Services
Officer positions at Service Canada Service Centres, are necessary for the
safety or security of the public:
1. Providing at normal
service delivery locations such assistance to members of the public who seek to
obtain a benefit under the EI, CPP or OAS/GIS programs as is reasonably
required to enable them to submit completed applications for processing, with
required documentation, and provided that the service is a service normally
performed by the incumbent of a Citizen Service Officer (PM-01) position within
the confines of the official job description for that position.
2. Providing at normal
service delivery locations such assistance to members of the public who are in
receipt of a benefit under the EI, CPP or OAS/GIS programs as is reasonably
required to enable them to continue to receive a benefit to the extent of their
eligibility, provided that the service is a service normally performed by the
incumbent of a Citizen Service Officer (PM-01) position within the confines of
the official job description for that position.
[41] I agree with the
respondent that a simplified approach as described above may be appropriate so
long as in the end, the definition is sufficiently precise so as to assist the
parties in identifying the types, number and specific positions that are
necessary to provide essential services. The above definitions meet that goal.
[42] In contrast, the Board’s
definition in the present case does not. It ignores the two guiding principles
outlined in its reasons (see paras. 11-12 above).
[43] In my respectful view,
the Board’s decision is unreasonable as it falls outside a range of possible,
defensible outcomes (Dunsmuir v. New Brunswick, 2008 SCC 9 at para.
47). Specifically, the Board’s task was to apply the statutory definition of
essential services to the facts of the case so as to assist the parties in determining
what constitutes essential services in the circumstances of the CS Group at the
CBSA. The definition is too vague to be useful in this regard. I therefore
conclude that the matter should be returned to the Board so that it may provide
a definition of essential services that facilitates the achievement of an
agreement between the parties.
[44] Given that the matter
must go back to the Board, I would also observe that nothing in principle
prevents the Board from incorporating into the definition of essential services
the systems, which the parties agree, are required for the provision of
essential services, if this should assist. To the extent that such systems
become redundant, and that a disagreement as to the purport of the essential
services definition ensues, an application can be brought pursuant to section
127 of the PSLRA to clarify the matter.
[45] For the above reasons, I
would grant the application for judicial review with costs and, as the member
who rendered the decision has since retired, I would remit the matter back to a
newly constituted Board so that it may provide a definition of essential
services which facilitates the achievement of an agreement between the parties.
“Marc
Noël”
“I
agree
K. Sharlow J.A.”
“I
agree
Eleanor R. Dawson J.A.”
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