[1] This is an application for judicial review from a Public Service Staff Relations Board (PSSRB) decision by Chairperson Yvon Tarte, which dismissed the Public Service Alliance of Canada's ("PSAC") section 99 reference on the basis that PSAC had not established the existence of an obligation in the collective agreement for purposes of section 99 of the Public Service Staff Relations Act (PSSRA).

[2] It is not necessary to review all of the history of these proceedings. Suffice it to say that pay equity complaints had been filed by PSAC on behalf of female dominated classification groups to the Canadian Human Rights Commission. In due course, a Human Rights Tribunal was appointed to inquire into these complaints and the Tribunal rendered what has been referred to as a Phase II decision on July 29, 1998. In that decision, orders were made to the effect that the wage gap for direct wages should be calculated to reflect the finding of the Tribunal that there had been discrimination as alleged by PSAC.

[3] PSAC had argued before the Tribunal not only the issue relating to direct wages but also had raised the issue that other benefits should be recalculated which were based on wages. Examples include such salary related benefits as education allowance, severance pay, foreign service directives, salary protection on transfer to lower paying positions and vacation leave. PSAC had argued before the Board that it was not necessary for the Board to recalculate all of those items on an events basis and it was simply adequate for the Board to set the appropriate wages and that the calculations could be worked out by the parties. Before us, counsel for PSAC admitted that it would have been within the jurisdiction of the Board to do such calculations.

[4] The Board, however, when it made its decision obviously did not accept the submission that all wage related benefits were being decided at that time. Paragraph 13 of the Board's order reads as follows:

13. That the issue of whether adjustments of direct wages for the retroactive period is to be considered wages for all purposes, or wages for purposes of superannuation but not for other pay purposes shall be determined in Phase III of these proceedings.

[5] It is obvious from this paragraph that the Tribunal was leaving to Phase III the issue of whether the adjustments for direct wages were to be considered "wages for all purposes, or wages for purposes of superannuation but not for other pay purposes".

[6] Phase III of the hearings never took place. What happened was that the parties adjourned and proceeded to negotiate settlement of these issues. The parties by a Memorandum of Agreement dated October 29, 1999, agreed "that the terms of this agreement settle all Phase II and Phase III issues relating to complaints" by PSAC.

[7] The agreement addressed certain salary related benefits including maternity benefits, long term disability, severance and separation benefits as well as overtime, acting and promotion benefits which we were advised represent the bulk of the contentious salary-related issues which had been raised before, but not decided by the Tribunal.

[8] The parties then attended before the Tribunal requesting that the agreement be incorporated in an order of the Board on consent.

[9] Counsel for PSAC in addressing the Board in connection with the agreement said "the parties are asking you to endorse and execute the order in the form presented to you" and requested the Tribunal to accept "the Memorandum of Agreement as constituting resolution of all remaining Phase II and Phase III issues relating to the complaints initiated".

[10] The Tribunal accepted the submissions of the parties and issued a consent order on November 16, 1999 which indicated inter alia as follows:

And whereas the parties have advised the Tribunal that matters related to Phase II and Phase III of the proceedings herein have been resolved as a result of an agreement concluded October 29, 1999.

The Tribunal hereby orders upon consent of the complainant and the respondent as follows:

1. The agreement of October 29, 1999 attached hereto is hereby accepted by the Tribunal and constitutes resolution of all remaining Phase II and Phase III issues relating to the subject complaints made pursuant to section 11 of the Act on behalf of the employees.

[11] Subsequent to the issuance of the consent order, PSAC claimed various other salary related benefits which Treasury Board rejected. As a result PSAC presented a reference to the PSSRB pursuant to section 99 of the PSSRA.

[12] Chairperson Tarte concluded that he could not accede to PSAC's section 99 reference in which PSAC contended that all benefits, perquisites and allowances contained in the various collective agreements from the complaint groups and tied to rates of pay which had been found to be discriminatory by the Tribunal, must be adjusted on an events basis for the whole retroactive period on the basis that by law the collective agreement had been amended effectively by the finding of discriminatory wages by the Tribunal. Chairperson Tarte said:

It is certainly not clear that the Tribunal agreed that it was required by law to order the adjustment of all indirect benefits on an events basis for the full retroactive period or that it would necessarily have done so had Phase III of the proceedings taken place...The imprecision of the language used in the consent order can give rise to differing views and interpretations. I do not believe that this Board should attempt to correct the ambiguity contained in the order of the CHRT. Unless the parties agree on this issue the matter must go back to the Federal Court and eventually to the CHRT.

[13] In order to succeed it was incumbent upon the applicant to satisfy Chairperson Tarte that the consent order gave effect to an agreement that the specified benefits and allowances be paid so as to give rise to an obligation under the collective agreement. In our view, Chairperson Tarte was on solid grounds when he held that the consent order was not clear on this issue and that accordingly, the existence of the alleged obligation had not been established.

[14] We agree that it is far from clear that the Memorandum of Agreement and the consent order can be said to give rise to any such obligation and this was sufficient for Chairperson Tarte to reach the conclusions which he did.

[15] The Tribunal did not purport to settle the issue of salary related benefits in its Phase II decision but rather intended to deal with this in Phase III of the hearings. We cannot say whether the Tribunal would have ordered all of the remedies sought by the applicant, had the Phase III hearings taken place. Section 53(2) of the Canadian Human Rights Act gives a discretion to the Tribunal as to the remedies which may be ordered and the Tribunal recognized this in its reasons.

[16] We are inclined to the view that the effect of the consent order is limited by the explicit terms of the Memorandum of Agreement with the result that what is not articulated in the consent order is not contemplated by the consent order.

[17] We do not feel it is necessary to deal with the issue raised by the Boutilier case.

[18] We are therefore of the view this application for judicial review should be dismissed with costs.

"J. EDGAR SEXTON"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-473-01

STYLE OF CAUSE: PUBLIC SERVICE ALLIANCE OF CANADA

v. HER MAJESTY THE QUEEN IN RIGHT OF

CANADA AS REPRESENTED BY TREASURY BOARD

PLACE OF HEARING: OTTAWA, ONTARIO

DATE OF HEARING: NOVEMBER 13, 2002

REASONS FOR JUDGMENT

OF THE COURT: SEXTON J.A.

DELIVERED FROM THE BENCH AT OTTAWA, ONTARIO, WEDNESDAY, NOVEMBER 13, 2002

DATED: NOVEMBER 13, 2002

APPEARANCES:

Mr. Andrew Raven FOR THE APPLICANT

Mr. Richard Fader FOR THE RESPONDENT

Ms. Beverly Whitlaw

SOLICITORS OF RECORD:

Raven, Allen, Cameron & Ballantyne FOR THE APPELLANT

Ottawa, Ontario

Morris Rosenberg FOR THE RESPONDENT

Deputy Attorney General

Ottawa, Ontario.

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Canada (Public Service Alliance) v. Canada (Treasury Board), 2002 FCA 447

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2002 FCA 447