Docket: T-1313-17
Citation:
2017 FC 852
Ottawa, Ontario, September 22, 2017
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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SENATE OF
CANADA
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Applicant
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and
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DARSHAN SINGH
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Respondent
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ORDER AND REASONS
[1]
Mr. Darshan Singh [respondent or grievor] is a
former employee of the Senate of Canada [applicant or Senate] whose employment
relationship was governed by provisions of the Parliamentary Employment and
Staff Relations Act, RSC 1985, c 33 (2nd Supp) [PESRA]. The Senate
terminated the respondent’s employment on December 2, 2015, and the respondent
filed a grievance pursuant to the provisions of PESRA challenging the
termination of his employment.
[2]
This is a motion made by the applicant to stay an
interlocutory order of an adjudicator of the Federal Public Sector Labour
Relations and Employment Board [Board] compelling the applicant to produce and
make certain documents available to the grievor’s representative, pending the
outcome of the present judicial review application challenging the legality or
reasonableness of this interlocutory order.
[3]
The grievance has not yet been decided on the
merits, and the adjudicator has not yet ruled on the admissibility of the
documents in question. In his decision, he cautions: “While
the Senate is compelled to produce the aforementioned documents, this shall not
be interpreted as meaning that the Senate may not continue to ascertain
Parliamentary privilege over parts or all of the aforementioned documents
and/or to maintain that such documents or portions thereof may not be relied
upon in the proceeding. The Senate may at any time raise any objection as to
the admissibility of any documentary evidence, including the aforementioned
documents, sought to be entered by the grievor during the proceeding.”
[4]
Apparently, the impugned documents were prepared
for in camera Senate proceedings, and include minutes, records of
attendance and other documents of in camera meetings of the Senate’s
Standing Committee on Internal Economy, Budgets and Administration and its subcommittees.
I have no difficulty in finding today that the issues raised by the applicant
in the underlying judicial review application are serious. No reasons are
provided by the adjudicator for making the interlocutory order. The applicant’s
counsel has also made a strong claim before this Court that the adjudicator’s order
to produce documents gathered in or prepared for in camera Senate
proceedings effectively disregards the Senate’s prerogative to hold meetings in
camera and invoke Parliamentary privilege over documents prepared for these
meetings (see especially Canada (House of Commons) v Vaid, 2005 SCC 30,
[2005] 1 S.C.R. 667 [Vaid]; Lavigne v Ontario (Attorney General), 91
OR (3d) 728, [2008] OJ No 2951; R v Duffy, 2015 ONCJ 694, [2015] OJ No
6481; Routcliffe v Senate of Canada, 2009 CRTFP 5, 182 LAC (4th) 245).
[5]
This brings me to address the issues of
irreparable harm and balance of convenience in the context of prematurity of
the present motion for stay. The fundamental obstacle for making a stay order
today resides in the fact that, at present time, the interlocutory ruling is
not enforceable per se.
[6]
I am ready to accept that if the applicant
provides the grievor’s counsel the impugned documents in the discovery process,
the harm will already have been done, whether or not they are subsequently
produced or excluded at the hearing by the adjudicator who has not yet ruled on
their admissibility in evidence. The problem though is that the alleged
irreparable harm is speculative at this stage. In effect, the applicant – who
is in possession of and has total control over the production of the privileged
documents – has no intention whatsoever to comply in the near future with the
interlocutory order of the adjudicator. Moreover, contrary to orders made by the
Board which may be filed with the Federal Court for enforcement purposes under
the authority of section 234 of the Federal Public Sector Labour Relations
Act, SC 2003, c 22, any subsequent Board order in this case directing the
applicant to comply with the adjudicator’s interlocutory ruling can only be
filed to Parliament.
[7]
Labour relations in the Senate are governed by
the provisions of the PESRA which provides a special mechanism in the case the
Senate – an employer for the purpose of these provisions – fails to give effect
to a decision of an adjudicator. This includes the interlocutory order made in
this case. First, the complainant – the grievor in this case – must make a
complaint to the Board (paragraph 13(1)(c) of the PESRA). Second, the Board
must determine that there has been a failure to give effect to the decision of
the adjudicator, and as the case may be, order the employer to comply with the
adjudicator’s decision within a specified delay (subsection 13(2) of the PESRA).
Third, where any such order has not been complied with within the specified
time, the Board shall cause a copy of its order, a report of the circumstances
and all documents relevant thereto, to be laid before each House of Parliament
within fifteen days after the expiration of the period, or, if that House is
not then sitting, on any of the first fifteen days next thereafter on which
that House is sitting (section 14 of the PESRA).
[8]
The above mechanisms have not yet been exhausted
by the respondent who has made or is on the verge of making a complaint to the
Board. Pursuant to sections 13 and 14 of the PESRA, Parliament retains control
over the enforcement of an adjudicator’s order, and ultimately employment
matters. This is entirely consistent with the Senate’s privilege and Parliament’s
intent in enacting the PESRA provisions (see Vaid at paras 84 to 87, 95
and 96; Canada (House of Commons) v Vaid, 2002 FCA 473 at paras 102 to
110, [2003] 1 FC 602, not infirmed on this particular point). Today, the
question as to whether or not the Senate will comply with any order made by the
Board is entirely speculative. The Senate may well reaffirm its claim that the
impugned documents are privileged – making it a valid reason for not complying
with the adjudicator’s interlocutory order, and as the case may be, any future
order of the Board, until the matter of privilege is finally decided by this
Court. Moreover, the balance of convenience is in favour of the respondent. If
the impugned order is stayed by the Court, this will have the effect of
circumventing the unique statutory procedure established by Parliament under
the PESRA.
[9]
For these reasons, the motion for stay made by
the applicant is dismissed. Costs in the amount of $1000 are reasonable in the
circumstances. I do not see any special reason to make them payable forthwith
and in any event of the cause, as asked by respondent’s counsel.
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