A-347-76
Attorney General of Canada (Applicant)
v.
The Public Service Staff Relations Board
(Respondent)
Court of Appeal, Urie, Ryan and Le Dain JJ.
Ottawa, June 2 and 4, 1976.
Judicial review—Public Service—Decision of Public Service
Staff Relations Board—Employer submitting list of 'desig-
nated employees"—Bargaining agent objecting—Failure to
agree on list of designated employees in Meat Inspection
Division of Department of Agriculture—Parties reserving
rights re designation of these employees, agreeing on designa
tion of others in group—Board designating numbers of
employees in each province, leaving employer to decide which
individuals most appropriate—Whether Board erred in desig
nating part of class where duties of each employee indistin
guishable from others in the class and in delegating discretion
to employer to decide which employees most appropriate—
Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s.
79—Federal Court Act, s. 28.
Pursuant to section 79(2) of the Public Service Staff Rela
tions Act, the employer submitted a statement of employees or
classes of employees whose duties it considered necessary in the
interest of public safety or security. The bargaining agent
objected, and an agreement could not be reached on the list of
veterinarians to be designated in the Meat Inspection Division
of the Department of Agriculture. Agreement was reached
concerning certain other employees in the unit, but the parties
reserved their rights regarding the veterinarians in question.
The Board designated certain numbers of employees for each
province, leaving the employer to decide which employees were
most appropriate. Applicant claimed that the Board erred in
designating part of a class where the duties of each employee
were indistinguishable from those of the others in the class,
and, in delegating to the employer the discretion to decide
which employees were most appropriate for designation.
Held, the order is set aside, and the matter is referred back
to the Board. The duty of the Board, under section 79(3), to
determine which employees or classes are designated, cannot be
delegated. In giving the employer discretion to decide which
employees were most appropriate, the Board failed to exercise
the discretion which was its responsibility alone. Under section
79, only when the parties are unable to agree on the list is the
Board given jurisdiction. Failing agreement, the Board alone
must make the determination. In giving the employer not only
the discretion to decide which employees should be designated,
but also their position and level and location in the province, it
did not do so. And, in fixing a percentage of a class within a
province without further refinement as to location, the Board
determined neither "which of the employees" nor "which
classes of employees" were to be designated, thus failing in its
section 79(3) duty. Designation of part of a class is not enough,
because without specific reference to individuals, or positions
within that part of the class, the employer is left not only to
determine the class, but also to select from the group those to
be designated. Thus, the Board failed to exercise its exclusive
statutory jurisdiction.
APPLICATION for judicial review.
COUNSEL:
L. Holland for applicant.
No one for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
No one for respondent.
The following are the reasons for judgment
delivered orally in English by
URIE J.: This is a section 28 application to
review and set aside the decision of the Public
Service Staff Relations Board rendered pursuant
to section 79 of the Public Service Staff Relations
Act on May 6, 1976. The application was heard
together with another section 28 application be
tween The Professional Institute of the Public
Service of Canada and The Public Service Staff
Relations Board, Court Number A-352-76, to
review and set aside the same decision. The
applications were argued together, counsel appear
ing on behalf of the Attorney General of Canada
and The Professional Institute of the Public Ser
vice of Canada (hereinafter called the Institute).
The Board was unrepresented and made no written
submissions.
Since the sole issue in the application is with
reference to the interpretation of section 79 of the
Public Service Staff Relations Act, the section is
set out in full hereafter.
79. (1) Notwithstanding section 78, no conciliation board
shall be established for the investigation and conciliation of a
dispute in respect of a bargaining unit until the parties have
agreed on or the Board has determined pursuant to this section
the employees or classes of employees in the bargaining unit
(hereinafter in this Act referred to as "designated employees")
whose duties consist in whole or in part of duties the perform
ance of which at any particular time or after any specified
period of time is or will be necessary in the interest of the safety
or security of the public.
(2) Within twenty days after notice to bargain collectively is
given by either of the parties to collective bargaining, the
employer shall furnish to the Board and the bargaining agent
for the relevant bargaining unit a statement in writing of the
employees or classes of employees in the bargaining unit who
are considered by the employer to be designated employees.
(3) If no objection to the statement referred to in subsection
(2) is filed with the Board by the bargaining agent within such
time after the receipt thereof by the bargaining agent as the
Board may prescribe, such statement shall be taken to be a
statement of the employees or classes of employees in the
bargaining unit who are agreed by the parties to be designated
employees, but where an objection to such statement is filed
with the Board by the bargaining agent within the time so
prescribed, the Board, after considering the objection and
affording each of the parties an opportunity to make represen
tations, shall determine which of the employees or classes of
employees in the bargaining unit are designated employees.
(4) A determination made by the Board pursuant to subsec
tion (3) is final and conclusive for all purposes of this Act, and
shall be communicated in writing by the Chairman to the
parties as soon as possible after the making thereof.
(5) Within such time and in such manner as the Board may
prescribe, all employees in a bargaining unit who are agreed by
the parties or determined by the Board pursuant to this section
to be designated employees shall be so informed by the Board.
1966-67, c. 72, s. 79.
Briefly, the facts are as follows:
On November 18, 1975, the employer (being
Her Majesty in right of Canada, as represented by
the Treasury Board), furnished to The Public Ser
vice Staff Relations Board (hereinafter called the
Board) and the Institute (the bargaining agent)
pursuant to subsection (2) of section 79, a state
ment in writing of the employees or classes of
employees in the bargaining unit who were con
sidered by the employer to be employees whose
duties consist in whole or in part of duties, the
performance of which at any particular time, or
after any specified period of time is, or will be,
necessary in the interest of the safety or security of
the public. The Institute objected to the proposed
designation following which the parties attempted,
without success, to resolve the issue. As a result,
the employer advised the Board that the parties
had failed to reach an agreement on the list of
veterinarians to be designated in the Meat Inspec
tion Division of the Department of Agriculture, a
part of the bargaining unit in question. The parties
had entered into an agreement with respect to the
designation of certain other employees in the bar
gaining unit. In the agreement the parties reserved
their respective rights in relation to the designation
of veterinarians in the Meat Inspection Division
where no agreement had been reached.
A hearing was held before the Board on April 5,
1976 at which the employer adduced evidence in
support of its position that 212 of the 282
veterinarians in the Meat Inspection Division
should be designated under section 79(1) of the
Public Service Staff Relations Act. Following that
hearing the Board decided that it needed further
information with particular reference to provincial
and municipal legislation relating to meat inspec
tion. Accordingly, a further hearing was held for
this purpose on April 22, 1976 at which time the
employer adduced further evidence and the parties
made further representations. Thereafter, the
Board concluded that neither the position of the
Institute that none of the veterinarians in the Meat
Inspection Division should be designated, nor the
position of the employer that 212 veterinarians in
the Division should be designated, was a reason
able or viable solution to the designations issue
before the Board. A further hearing was held at
which time counsel for the employer advised the
Board that in light of the legislation in Ontario
and Prince Edward Island which made it illegal to
sell uninspected meat, the employer was reducing
its request for the designation of 62 veterinarians
in Ontario to 21, which number was subsequently
increased to 25. It also withdrew its request for the
designation of 1 veterinarian proposed for designa
tion in Prince Edward Island. The employer, how
ever, maintained its original position in respect to
the designation it had proposed in the remaining 8
provinces. Counsel for the Institute continued her
opposition to the designation of any employees in
the Meat Inspection Division.
On May 6, 1976, a majority of the Board (1
member dissenting) made the following designa-
tions covering the Meat Inspection Division of the
Department of Agriculture, who were members of
the Veterinary Science Group, the bargaining unit:
(a) In Newfoundland, Nova Scotia, New Brunswick,
Manitoba and Saskatchewan, which, according to the evi
dence, have no provision for provincial meat inspection, fifty
per cent (50%) of the establishment complement in each
province are designated. More specifically, the following
number of employees are designated by province:
Newfoundland 1
Nova Scotia 3
New Brunswick 6
Manitoba 11
Saskatchewan 9
(b) In Quebec, Alberta and British Columbia, which,
according to the evidence have some provision (non-manda
tory) for provincial meat inspection, forty per cent (40%) of
the establishment complement are designated in each prov
ince. More specifically, the following number of employees
are designated by province:
Quebec 28
Alberta 17
British Columbia 7
(c) In Ontario, which does have mandatory provision for
provincial meat inspection, the Board designates 10 of the
employees in the Veterinary Science Group proposed by the
Employer for poultry inspection. In addition, the Board
designates the five veterinarians in the Meat Inspection
Division located in the Department of Agriculture Head
quarters at Ottawa listed in the Employer's schedule for
proposed designation.
It is from this decision that the present applica
tion is brought.
At the hearing before this Court counsel for the
applicant took the position that the Board erred in
making its decision in two respects:
(a) in designating part of a class of employees
where the duties of each employee in the class
are indistinguishable from the duties of each of
the other employees in the class;
(b) in delegating to the employer the discretion
to decide which employees are the most appro
priate for designation for the safety or security
of the public.
Counsel for the Institute argued that the order
of the Board was wholly lawful except with refer
ence therein to the designation of employees in
Ontario which portion of the order is the subject
matter of the Institute's own section 28
application.
Section 79(3) imposes on the Board the duty of
determining which of the employees or classes of
employees in the bargaining unit are designated
employees as defined in subsection (1). That is
solely a Board decision and cannot be delegated.
However, the Board, in my opinion, did delegate
its responsibility for that determination or, to put
it another way, the members of the Board failed to
exercise the discretion which was solely theirs to
determine the employees or class of employees in
the bargaining unit who were to be designated
employees. That such is the case is clear from the
following sentences from paragraph 26 of their
reasons for decision.
In all the circumstances, by and large, we have elected to make
our designations in terms of percentages of the establishment
complement of veterinarians in the Meat Inspection Division in
each province. For the convenience of the parties we have
translated these percentages into the number of employees who
are designated in each province. Our formula affords to the
Employer the discretion to decide which employees are most
appropriate for designation for the safety or security of the
public in each province, both in terms of level and geographic
location.
The principle of law that when a power has been
conferred on a tribunal to exercise its discretion
that power must be exercised only by such tribunal
unless it has been expressly empowered to delegate
it, is so well known that it does not require further
elaboration or reference to authorities. By the
terms of section 79, it is only when the parties are
unable to agree on the list of designated employees
that the Board is given jurisdiction. Failing such
agreement it is mandatory that the Board, and it
alone, makes the requisite determination. It did
not do so in this case when it handed over to the
employer, not only the discretion to decide which
employees should be designated, but also their
position level and geographic location within the
province. For this reason, as well as for the reason
which I shall next discuss, the decision must be set
aside.
It is clear from its reasons that the Board had
difficulty in carrying out the important duty of
determining the designated employees whose con
tinued services during a lawful strike of the bar
gaining unit are necessary in the interest of safety
or security of the public, due to the fact that "the
evidence and submissions presented ... has pro
vided no more than rudimentary guidance or
assistance ...." As a result the majority took the
course of action referred to in the above quotation
from paragraph 26 of their reasons, and the
majority made the order above referred to.
It will be noted that a "number of employees"
were designated province by province, by applica
tion of a given percentage to the establishment of
veterinarians in the Division for that Province. It is
apparent, I think, that in fixing a percentage of a
class of employees within a province, without fur
ther refinement as to geographical location, the
decision of the Board neither determines "which of
the employees" nor "which classes of employees"
are to be considered as "designated". The Board
has thus failed to carry out the duty imposed on it
by subsection 3 of section 79. At best it has
designated a part of a class but that, in my view, is
insufficient because, without specific reference to
individuals or positions within the part of the class,
the employer is left with the responsibility of
determining not only the class but also selecting
from within that group, those who are to be desig
nated. In so doing, the Board has declined to
exercise the exclusive jurisdiction conferred upon
it by statute and, accordingly, for this reason too,
the decision must be set aside.
Therefore, the order of the Board dated May 6,
1976 will be set aside and the matter will be
referred back to The Public Service Staff Rela
tions Board for reconsideration either on the evi
dence presently before it or after further hearings
if it deems such are necessary.
* * *
RYAN J. concurred.
* * *
LE DAIN J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.