Docket: A-118-23
Citation: 2024 FCA 95
CORAM:
|
STRATAS J.A.
MACTAVISH J.A.
WALKER J.A.
|
BETWEEN: |
ATTORNEY GENERAL OF CANADA |
Applicant |
and |
PUBLIC SERVICE ALLIANCE OF CANADA |
Respondent |
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on May 15, 2024).
MACTAVISH J.A.
[1] Dental benefits are one of the employment benefits available to government employees, including members of the Public Service Alliance of Canada (PSAC), and their eligible dependants. These benefits are governed by the Public Service Dental Care Plan (the Dental Plan), the terms of which are negotiated by the parties from time to time.
[2] The most recent iteration of the Dental Plan expired in December of 2021. Shortly thereafter, PSAC gave notice to the Treasury Board (the employer) that it wished to negotiate amendments to the Dental Plan. An exchange of correspondence between the parties then followed. Dissatisfied with the position taken by the employer, PSAC filed a complaint with the Federal Public Sector Labour Relations and Employment Board (the Board) under section 190 of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2. It alleged in its complaint that the employer had committed an unfair labour practice contrary to section 106 of the Act by failing to bargain in good faith. The full text of the statutory provisions at issue in this case is attached as an appendix to these reasons.
[3] The employer disputed the Board’s jurisdiction to entertain PSAC’s complaint, asserting that the duty to bargain in good faith relates only to the negotiation of collective agreements and that the Dental Plan was not a “collective agreement”
as defined in the Act. It further submitted that the negotiation of the Dental Plan did not take place under section 105 of the Act, as this allows a bargaining agent or an employer to give written notice to the other side requiring them to commence bargaining collectively with a view to entering into, renewing or revising a collective agreement. According to the employer, section 106 of the Act (which creates the duty to bargain in good faith) also has no application here, as that duty is only engaged once notice to bargain collectively has been given pursuant to section 105. Consequently, the employer argued that the Board lacked jurisdiction to deal with PSAC’s complaint and that it should be dismissed.
[4] In the alternative, the employer argued that, in any event, it had not breached its duty to bargain in good faith in this case. The employer has not pursued this issue before us.
[5] In a lengthy and detailed decision, the Board carefully considered the employer’s jurisdictional arguments. It accepted that the Dental Plan was not a “collective agreement”
, as defined in the Act, and that PSAC could not serve a “notice to bargain”
under section 105 of the Act with respect to the Plan. The Board further found that the section 106 duty to bargain in good faith was only triggered once a “notice to bargain”
had been served in accordance with section 105 of the Act. It also found that, on its face, paragraph 190(1)(b) of the Act only gave the Board jurisdiction to inquire into complaints alleging that a party had failed to comply with the duty to bargain in good faith imposed by section 106 of the Act. The Board acknowledged that there is no provision in section 190 that expressly allowed it to decide complaints with respect to an alleged failure to bargain in good faith where section 106 had not been engaged.
[6] That said, the Board did not accept the employer’s contention that the parties negotiate the terms of the Dental Plan outside of the collective bargaining process. Considering the relationship between the Dental Plan and collective bargaining, the Board found as a fact that the Plan exists because the parties negotiated for it through the collective bargaining process. The Board further found that the Dental Plan had been incorporated by reference into the parties’ collective agreements (which state that the Plan is “deemed to form part of”
these agreements) and that it was “entirely rooted in the collective bargaining process between the parties”
. The Board also noted that PSAC had served notices to bargain collectively under section 105 of the Act with respect to five of its collective agreements, and that these notices had triggered the section 106 duty to bargain collective agreements in good faith. Given that the Dental Plan is deemed to form part of these agreements, negotiating its terms during the collective bargaining process meant that these negotiations must also engage the duty to bargain in good faith. These findings led the Board to conclude that having regard to the specific facts of this case, the employer’s obligation to bargain in good faith had been engaged, and that the employer had breached that duty.
[7] The Board then went on to consider whether the duty to bargain in good faith would be engaged even if the negotiation of the terms of the Dental Plan took place at a time when the collective agreements between the parties remained in force. In concluding that the duty would be triggered in such circumstances, the Board had regard to numerous factors including the principles of statutory interpretation, the wording of the Act’s Preamble, the purpose of the legislation, the constitutional nature of the right to bargain collectively and the relevant jurisprudence.
[8] We agree with the parties that the Board’s jurisdictional finding is subject to review on the reasonableness standard: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 16, 65. As the Supreme Court has stated, a reasonable decision is one “based on an internally coherent and rational chain of analysis […] that is justified in relation to the facts and law that constrain the decision maker”
: Vavilov, above at para. 85.
[9] The employer has not demonstrated that the Board’s findings that the Dental Plan existed because the parties had negotiated for it through the collective bargaining process, that it had been incorporated by reference into the parties’ collective agreements and that it was “entirely rooted in the collective bargaining process between the parties”
were unreasonable. Given these findings, it was reasonably open to the Board to conclude that there was a duty on the part of the employer to negotiate the terms of the Dental Plan in good faith, thus engaging the Board’s jurisdiction. This is further supported by the fact that, in this case, the complaint arose in the context of ongoing negotiations with respect new collective agreements between the parties. The Board’s decision on the jurisdictional question was thus justified, transparent, and intelligible, and no basis has been established for this Court’s intervention.
[10] After concluding that a duty on the part of the employer to bargain in good faith had been established on the facts of this particular case, the Board went on to find that there would be a similar duty on the part of the employer where negotiations with respect to the terms of the Dental Plan take place while collective agreements between the parties are in force. It is not necessary for us to address the reasonableness of the Board’s finding on this point as it was obiter on these facts, and nothing in these reasons should be taken as agreeing or disagreeing with the Board’s finding in this regard.
[11] Consequently, the application will be dismissed. In accordance with the agreement of the parties, PSAC shall have its costs fixed in the amount of $2,500.00.
“Anne L. Mactavish”
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