Date: 20090602
Docket: A-435-08
Citation:
2009 FCA 184
CORAM: LÉTOURNEAU J.A.
NADON J.A.
BLAIS J.A.
BETWEEN:
PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on June 2, 2009)
LÉTOURNEAU J.A.
[1]
In this case, the parties agree that the
standard of review applicable to the decision of the member of the Public
Service Labour Relations Board (Professional Institute of the Public Service
of Canada v. Canadian Food Inspection Agency, 2008 PSLRB 50) is
unreasonableness: see Dunsmuir v. New
Brunswick, 2008 SCC 9.
[2]
Applying this standard, we are satisfied that
this application for judicial review must be dismissed, for the following
reasons.
[3]
The board member ruled that the applicant’s complaint
filed under paragraph 190(1)(b) of the Public Service Labour
Relations Act, S.C. 2003, c. 22 (Act) was inadmissible. Subjects of such
complaints are alleged to have breached their duty to bargain in good faith.
[4]
The board member’s finding of inadmissibility is
based on section 135 of the Act and the fact that the applicant used the
dispute arbitration process under the Act. Section 135 of Division 9 of
the Act, entitled Arbitration, reads as follows:
|
Arbitration
Application of Division
Application
135. This Division applies to the employer and the
bargaining agent for a bargaining unit whenever
(a) the process for the resolution of a dispute
applicable to the bargaining unit is arbitration; and
(b) the parties have bargained in good faith with
a view to entering into a collective agreement but are unable to reach
agreement on a term or condition of employment that may be included in an
arbitral award.
(Emphasis added.)
|
Section 9
Arbitrage
Application de la section
Application
135. La présente section s’applique à l’employeur et à
l’agent négociateur représentant une unité de négociation dans le cas où :
a) d’une
part, le mode de règlement des différends applicable à l’unité de négociation
est le renvoi à l’arbitrage;
b) d’autre
part, les parties ont négocié de bonne foi en vue de conclure une
convention collective, mais n’ont pu s’entendre sur une condition d’emploi
qui peut figurer dans une décision arbitrale.
|
[5]
As the board member pointed out, this section
sets out the following cumulative conditions for the application of
Division 9 of the Act. First, arbitration, the process for the resolution
of a dispute, has been authorized; second, not just one, but both parties have
bargained in good faith with a view to entering into a collective agreement.
[6]
First of all, it was reasonable for the board
member to infer and conclude pursuant to section 135 that, by using the
arbitration process, the applicant had submitted or acknowledged that the Canadian
Food Inspection Agency (Agency) had bargained in good faith during the current relevant
period.
[7]
Second of all, on the basis of that first
conclusion, it was reasonable for and open to the board member to rule
inadmissible the applicant’s subsequent complaint alleging this time that the
Agency had bargained in bad faith during the same period.
[8]
In support of its arguments, the applicant
relies on a subsequent decision involving the same parties and rendered by the
same board member, in which he rejected an objection of the respondent that was
similar to the one raised and allowed in this case: see Professional
Institute of the Public Service of Canada v. Canadian Food Inspection Agency,
2008 PSLRB 78.
[9]
In that case, the board member allowed a
complaint based on paragraph 190(1)(b) of the Act alleging that the
respondent had not made every reasonable effort to enter into a collective
agreement even though, later, there was a resumption of bargaining, mediation and,
lastly, a request for arbitration. According to the applicant, that same board
member’s new ruling recognizes that the recourses under paragraph 190(1)(b)
and subsection 135(b) of the Act are not inconsistent, thereby
contradicting on this point his earlier decision, which is the subject of this
application for judicial review.
[10]
With respect, we are of the view that the
applicant is giving the decision before us a scope that it does not have and
that is disconnected from the facts underlying and justifying the decision.
[11]
In addition, the applicant itself admits that,
here, the fact situation differs from the one that prevailed in the board
member’s subsequent decision. Paragraph 9 of 2008 PSLRB 78 states
the applicant’s position on the issue as follows:
[9] The complainant argues that the
situation in 2008 PSLRB 50 is different from that of this case. When this
complaint was filed, the complainant had not yet requested the establishment of
an arbitration board. Furthermore, at the time of the hearing, an arbitration
board had not yet been established. In 2008 PSLRB 50, the complainant had
already applied for arbitration when it filed a complaint, and the arbitration board
had issued its arbitral award when the complaint was heard.
[12]
The board member accepted this submission of the
applicant because the complaint made under paragraph 190(1)(b) had
preceded the request for arbitration and referred to behaviour that differed
from that which occurred after the bargaining resumed and that eventually led
to the request for arbitration. The board member stated the following at
paragraphs 18 to 20 of his decision:
[18] In 2008 PSLRB 50, arbitration was
requested four months before a bad-faith bargaining complaint was filed.
Furthermore, an arbitration board had already been established by the
Chairperson of the Board when the complaint was filed. Finally, when the
complaint was heard, the arbitration board had rendered its arbitral award.
[19] As argued by the complainant, the
schedule of events differentiates this case from 2008 PSLRB 50. In that case,
when the complaint was filed, the complainant had already requested
arbitration. In this case, the request for arbitration was made several months
after the complaint and the incidents that gave rise to it.
[20] To decide on the objection, the
Board needs to look at the situation as it was in October 2007, when the
complaint was filed, and as it was on January 23, 2008, the date of the
incident that is the subject of the amendment. At those times, the complainant
had not yet requested arbitration. If the complaint had been heard before April
2008, this objection could not have been made.
[13]
In other words, the two requests, that is, for
punishment for the respondent’s bad faith and for arbitration, covered two
different periods of time that, owing to the respondent’s behaviour, gave rise
to the two remedies sought.
[14]
However, that is not the case here. The
applicant chose between two recourses that, under the circumstances, cannot both
be exercised in the order in which the chosen recourse was pursued. In our
opinion, the board member was right to limit the applicant to the option it had
chosen.
[15]
The dispute was indeed referred to arbitration
on September 12, 2006. Arbitration proceedings were held on
January 31 and February 1, 2007. The complaint alleging
bargaining in bad faith was filed on January 15, 2007. The arbitral
award was rendered on February 14, 2007.
[16]
The applicant submits that, between the request
for arbitration made on September 12, 2006, and the filing of the
complaint alleging bad faith on January 15, 2007, there were no
negotiations between the parties because of the Agency’s bad faith, and the
complaint was therefore admissible and should have been decided on the merits.
[17]
However, that bad faith was the result of the
Agency’s difficulties in obtaining a mandate from the Treasury Board regarding wage
offers, which was the case throughout the entire period prior to September 12, 2006,
and which the applicant admitted through its request for arbitration did not
amount to bad faith. In short, the situation after September 12, 2006,
was the same as the one existing before that date; under the circumstances, the
situation could therefore not form the basis for a complaint under
paragraph 190(1)(b) of the Act.
[18]
Finally, although the arbitral award had been
rendered and the case closed, the applicant sought a declaration from the Board
member for the future. The purpose of section 190 and, more specifically,
paragraph (1)(b), is to require the parties to bargain in good
faith and, to that end, obtain a declaration ordering them to continue
bargaining in compliance with this statutory duty with a view to entering into
the collective agreement being negotiated. Had the applicant acted in a timely
manner to obtain such a declaration for the present, it would not have had to
belatedly seek one for a future collective agreement.
[19]
For these reasons, the application for judicial
review will be dismissed with costs.
“Gilles
Létourneau”
Certified true
translation
Tu-Quynh Trinh
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