A-362-79
The Queen (Applicant)
v.
Public Service Alliance of Canada (Respondent)
Court of Appeal, Heald, Urie and Ryan JJ.—
Ottawa, January 14 and 25, 1980.
Judicial review — Public Service — Labour contract
P.S.S.R.B. inserted a section into collective agreement Article
dealing with severance pay — New section providing period
employees who met prescribed conditions to compensation
provided under the Article — Whether or not the Board had
jurisdiction to make the award because of s. 70 of the Public
Service Staff Relations Act — Public Service Staff Relations
Act, R.S.C. 1970, c. P-35, s. 70 — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside an
arbitral award of the Public Service Staff Relations Board.
Respondent had requested arbitration concerning certain terms
and conditions of employment of a group of employees. After
conducting a hearing, the Board acceded to respondent's
request that a new section dealing with Specified Period
Appointments be added to the Article on Severance Pay. The
new section, when read with section (a) of the Article, would
provide to specific period employees, who completed more than
one year of continuous employment and whose appointments
were not renewed due to lack of work or discontinuance of a
function, compensation in the amounts set out in section (a) of
the Article. Applicant submits that the Board did not have the
jurisdiction to make this award because of the provisions of
section 70 of the Public Service Staff Relations Act.
Held, the application is allowed.
Per Heald J.: The only portion of section 70 which could
possibly clothe the Board with jurisdiction is that portion of
section 70(1) which deals with "rates of pay" and this arbitral
award does not deal with rates of pay. A reading of sections (a)
and (f) makes it clear that what is being awarded in section (f)
is compensation or indemnity to a certain class of employees
whose appointments have not been renewed. While the English
caption under Article 26 is "Severance Pay", the French
version refers to "Indemnité de départ". The quantum or
amount of that compensation or indemnity is determined by a
reference to the weekly pay of the employee in question but this
is simply a method of calculation of the compensation to be
paid. The kind of question which is contemplated under section
70(1) when "rates of pay" are referred to is a question as to
whether the present pay rate of employees should be increased,
decreased, or left at the present rate. An arbitral award could
deal with such questions under section 70(1) but not a question
such as the one in this case where the issue to be resolved,
rather, involves the circumstances under which "severance pay"
is payable.
Per Ryan J.: Even though it is possible to suggest a broad
reading of section 70(1), it is not possible to interpret the words
"rates of pay" in that section as being wide enough to embrace
compensation for failure to re-appoint to a position for a fixed
term. Further, the interpretation that matters falling within the
permissible range of collective bargaining could be included in
an award because the matters mentioned in section 70(1) were
only illustrations is not open. Section 70 is intended as a full
statement. Read as a whole, it defines the permissible content
of an award and does not include compensation for failure to be
re-appointed to a fixed term position.
APPLICATION for judicial review.
COUNSEL:
Robert Cousineau for applicant.
Maurice W. Wright, Q.C. for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside an arbitral award of the
Public Service Staff Relations Board dated May
15, 1979.
In February of 1979, the respondent requested
arbitration with regard to certain terms and condi
tions of employment for all employees in the Pur
chasing and Supply Group in the Administrative
and Foreign Service Category. The Board, after
conducting a hearing where both parties made
submissions, acceded to the request of the respond
ent that a new section be added to Article 26 of
the collective agreement. That portion of the arbi-
tral award reads as follows:
ARTICLE 26—SEVERANCE PAY
(1)...
(2)...
(3)...
(4) SPECIFIED PERIOD APPOINTMENTS
A new Article 26.01 (f) shall be added to the collective
agreement, which Article shall read as follows:
On failure of the Employer to renew a specified period
appointment when an employee has completed more than one
(1) year of continuous employment and ceases to be
employed due to failure to renew the appointment because of
lack of work or discontinuance of a function, then the
employee shall be deemed to be laid off within the meaning
of Article 26 for purposes of severance pay.
It is only that portion dealing with Specified
Period Appointments set out in (4) supra which is
attacked by the applicant and forms the subject
matter of this section 28 application.
In order to truly appreciate the effect of this
new section (f) of clause 26.01, it is necessary to
look at the provisions of clause 26.01(a) of the
collective agreement. Clause 26.01(a) reads as
follows:
ARTICLE 26
SEVERANCE PAY
26.01 Under the following circumstances and subject to clause
26.02 an employee shall receive severance benefits calculated
on the basis of his weekly rate of pay:
(a) Lay-Off
(i) On the first lay-off after April 30, 1969, two (2) weeks'
pay for the first complete year of continuous employment
and one (1) weeks' [sic] pay for each additional complete
year of continuous employment with a maximum benefit of
twenty-eight (28) weeks' pay.
(ii) On second or subsequent lay-off after April 30, 1969,
one (1) week's pay for each complete year of continuous
employment with a maximum benefit of twenty-seven (27)
weeks' pay, less any period in respect of which he was
granted Severance Pay under 26.01(a)(i) above.
A reading of sections (a) and (f) makes it clear, in
my view, that section (f) will provide to specific
period appointees who have completed more than
one year of continuous employment and whose
appointments have not been renewed due to lack of
work or discontinuance of a function, compensa
tion in the amounts set out in clause 26.01(a).
The applicant submits that the Board did not
have the jurisdiction to make this award because
of the provisions of section 70 of the Public Ser
vice Staff Relations Act, R.S.C. 1970, c. P - 35.
Section 70 reads as follows:
70. (1) Subject to this section, an arbitral award may deal
with rates of pay, hours of work, leave entitlements, standards
of discipline and other terms and conditions of employment
directly related thereto.
(2) Subsection 56(2) applies, mutatis mutandis, in relation
to an arbitral award.
(3) No arbitral award shall deal with the standards, proce
dures or processes governing the appointment, appraisal, pro
motion, demotion, transfer, lay-off or release of employees, or
with any term or condition of employment of employees that
was not a subject of negotiation between the parties during the
period before arbitration was requested in respect thereof.
(4) An arbitral award shall deal only with terms and condi
tions of employment of employees in the bargaining unit in
respect of which the request for arbitration was made.
I have reached the conclusion that the applicant's
objection to the Board's jurisdiction is well-found
ed. I say this because, in my opinion, the only
portion of section 70 which could possibly clothe
the Board with jurisdiction is that portion of sec
tion 70(1) which deals with "rates of pay" and it is
my view that this arbitral award does not deal with
rates of pay. A reading of sections (a) and (f)
supra makes it clear that what is being awarded in
section (f) is compensation or indemnity to a
certain class of employees whose appointments
have not been renewed. While the English caption
under Article 26 is "Severance Pay", the French
version refers to "Indemnité de départ". The quan
tum or amount of that compensation or indemnity
is determined by a reference to the weekly pay of
the employee in question but this is, in my view,
simply a method of calculation of the compensa
tion to be paid. The kind of question which I think
is contemplated under section 70(1) when "rates
of pay" are referred to, is a question as to whether
the prèsent pay rate of employees should be
increased, decreased, or left at the present rate, or
for example, a question of call-back, overtime,
shift premiums, holiday pay and the like. An arbi-
tral award could deal with such questions under
section 70(1) but not a question such as the one in
this case where the issue to be resolved, rather,
involves the circumstances under which "severance
pay" is payable. For these reasons, I am of the
view that the Board acted without jurisdiction and
that accordingly, the order herein impugned
should be set aside to the extent asked for in the
section 28 application.
Counsel for the applicant advanced other
attacks on the Board's decision, alleging that the
Board acted in a manner contrary to the provisions
of sections 25 and 29 of the Public Service
Employment Act, R.S.C. 1970, c. P-32.
However, in view of the conclusion which I have
reached in respect of section 70(1) of the Public
Service Staff Relations Act, supra, I do not con
sider it necessary to deal with these further attacks
on the Board's jurisdiction.
I would therefore allow the section 28 applica
tion and order that clause 26.01(f) be deleted from
the arbitral award of the Board dated May 15,
1979.
* * *
URIE J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
RYAN J.: I have had the advantage of reading
the reasons for judgment of Mr. Justice Heald. I
agree with him that the application should be
granted and with his reasons for so deciding.
I wish merely to add a comment.
Section 59, paragraph (a) of the Public Service
Staff Relations Act provides that "Where the
employer and the bargaining agent for a bargain
ing unit have bargained collectively in good faith
with a view to concluding a collective agreement
but have failed to reach agreement, if the process
for resolution of a dispute applicable to the bar
gaining unit is by the referral thereof to arbitra
tion, sections 63 to 76 apply to the resolution of
the dispute". Sections 63 and 64 of the Act, as I
read them, limit the scope of arbitration to matters
that may be included in an arbitral award. This
might well mean, as it may possibly mean in this
case, that a matter that would be appropriate to
collective bargaining would not be subject to arbi
tration. This possible consequence seems to me to
suggest a broad reading of subsection 70(1). Even
with this consideration in mind, however, I have
not found it possible to interpret the words "rates
of pay" in subsection 70(1) as being wide enough
to embrace compensation for failure to re-appoint
to a position for a fixed term.
Having in mind the effect of subsection 70(1) on
the range of arbitration, I also considered the
possibility that the matters mentioned in subsec
tion 70(1) were not intended to constitute a com
plete statement of the matters with which an
arbitral award may deal (subject, of course, to the
further limitations imposed by subsections (2), (3)
and (4)), but rather were intended as illustrations
of matters that might be dealt with or to place
beyond question that each of these matters could
be dealt with; such a reading would make it possi
ble to include in an award matters other than those
mentioned in the subsection, matters which would
fall within the permissible range of collective bar
gaining. I decided, however, that this construction
of subsection (1) is not open.
For one thing, as I have already noted, sections
63 and 64 of the Act make it clear that arbitration
may be requested only in respect of a term or
condition of employment that may be included in
an arbitral award. This strongly suggests that one
is to look to section 70, which deals with the
subject matter of an arbitral award, to determine
what may be included in an award and may be
arbitrated, and points to the conclusion that the
section is intended to be comprehensive.
I also note that subsection 67(1) imposes a duty
on the Board to render an "arbitral award", and
thus authorizes it to do so, but the subsection, and
therefore the authorization, is expressly made sub
ject to section 70; it would be strange if the scope
of section 70 were not intended to be comprehen
sive.
Indeed, the very wording of section 70 suggests
that it is intended as a full statement. Subsection
(1) states the matters that may be dealt with in an
award, but makes this statement "Subject to this
section"; subsections (2), (3) and (4) limit the
scope of the award as authorized by subsection
(1). The section, read as a whole, defines the
permissible content of an award and does not
include compensation for failure to be re-appoint-
ed to a fixed term position. I find further support
for this reading in section 74.
* *
URIE J.: I concur.
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.