Docket: A-210-13
Citation:
2014 FCA 202
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CORAM:
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NOËL C.J.
SCOTT J.A.
BOIVIN J.A.
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BETWEEN:
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DAVID
LESSARD-GAUVIN
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Appellant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Québec, Quebec, on
September 16, 2014).
BOIVIN J.A.
[1]
This is an appeal by Mr. Lessard-Gauvin
(the appellant) against a decision of Justice Tremblay-Lamer of the
Federal Court (the Judge).
[2]
The Judge dismissed the appellant’s motion for
an extension of time to file a notice of application for judicial review
because the application had no basis in law and was certain to fail.
[3]
The appellant is primarily seeking judicial
review of a decision rendered on March 27, 2013, at the final level in the
internal grievance process. That decision concerns the interpretation or
application in respect of him of a provision of the collective agreement, a
matter that could have been referred to adjudication under section 209 of
the Public Service Labour Relations Act, S.C. 2003, c. 22,
s. 2 [PSLRA], if the bargaining agent had agreed to represent the
appellant in the adjudication proceedings, which it refused to do.
[4]
Having carefully analyzed the record, and having
considered the appellant’s written and oral arguments, we are all of the
opinion that his appeal should be dismissed.
[5]
As the Judge states in her order, this is not a
situation where the appellant’s grievance was not referred to adjudication
because of the provisions of the Act. This is, rather, a situation where the
bargaining agent refused to agree to refer it. The bargaining agent’s refusal
means that the decision dated March 27, 2013, is not subject to judicial
review (subsection 209(2) of the PSLRA; Rhéaume v. Canada (Attorney
General), 2010 FCA 355 [Rhéaume]).
[6]
The appellant argues that this Court nonetheless
has the residual power of a superior court to hear an application for judicial
review of the decision dated March 27, 2013, that dismissed his grievance.
However, as is established in Rhéaume, the statutory framework of the
PSLRA— more specifically, subsection 209(2) of that Act—requires the
consent of his bargaining agent. The consent of the bargaining agent is in fact
mandatory.
[7]
Contrary to the appellant’s contention, from the
standpoint of principle the decision of this Court in Rhéaume is not
distinguishable as regards the present case.
[8]
In these circumstances, the Judge did not err in
applying the principles governing the exercise of her discretion (Canada
(Attorney General) v. Larkman, 2012 FCA 204).
[9]
Moreover, we see no grounds on which to deny
costs to the respondent.
[10]
For these reasons, the appeal is dismissed with
costs.
“Richard Boivin”
Certified true translation
Erich Klein
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