A-642-79
The Queen (Applicant)
v.
Professional Institute of the Public Service of
Canada (Respondent)
Court of Appeal, Heald and Urie JJ. and Kerr
D.J.—Ottawa, June 9 and 13, 1980.
Judicial review — Public Service — Management exclu-
sions — Whether Public Service Staff Relations Board has
power to designate exclusions under paragraph (a) of the
definition — Whether persons designated as exclusions are
excluded by operation of law — Jurisdiction of Board to
appoint examiner to determine status under paragraph (a) of
the definition — Public Service Staff Relations Act, R.S.C.
1970, c. P-35, ss. 2, 18 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
This is a section 28 application to review the decision of the
Public Service Staff Relations Board appointing an examiner
under section 18 of the Public Service Staff Relations Act to
inquire into the duties and responsibilities of an employee who,
the applicant claimed, was in a position confidential to a Chief
Executive Officer of a part of the Public Service and who
therefore comes within the provisions of paragraph (a) of the
definition of a "person employed in a managerial or confiden
tial capacity" in section 2 of the Act. The applicant objected to
the appointment of the examiner on the basis that persons
coming within paragraph (a) are not "designated" as exclusions
but are excluded by operation of law and since neither the
employer nor the Board has any power of designation, there is
no corresponding right of objection. The applicant agreed that
the Board, under paragraphs (c) to (g), is specifically empow
ered to determine managerial or confidential status in connec
tion with an application for certification of a bargaining agent
and also pursuant to the Regulations of the Board, where such
designation is objected to by the bargaining agent. In cases
where such designation is not objected to by the bargaining
agent, the employer has the power to designate. But the
applicant claimed there is a distinction between paragraphs (a)
and (b) on the one hand and (c) to (g) on the other. It is to be
implied that persons falling under (a) and (b) must be so
recognized whether or not a bargaining agent objects and it is
to be further inferred that the Board has no power to look into
the designation of persons in paragraphs (a) and (b). The
applicant also submitted that the decision under review was
purely a declaratory decision that the Board had no authority
to make under section 18 of the Act.
Held, the section 28 application is dismissed. The fact that
specific powers are granted and specific procedures are pro
vided in paragraphs (c) to (g) does not impliedly exclude the
power to make necessary determinations in respect of para
graphs (a) and (b). There is a practical necessity for the proper
administration of the Act, that the Board have jurisdiction to
make determinations under paragraphs (a) and (b). To hold
otherwise would have the effect of deciding that the employer
would have the right to decide the issue unilaterally simply by
claiming that a particular employee comes within paragraph
(a) or (b). It cannot have been the intention of Parliament in
conferring on the Board the wide powers under section 18 to so
restrict the Board in its operations so as to permit of such an
incongruous result. The decision in this case was not a purely
declaratory decision. It was a jurisdictional decision and was
necessary as a preliminary essential to a determination of the
issue before it.
APPLICATION for judicial review.
COUNSEL:
W. L. Nisbet, Q.C. for applicant.
M. Wexler for respondent.
J. E. McCormick for Public Service Staff
Relations Board.
L. M. Joyal, Q.C. for Public Service Alliance
of Canada.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Professional Institute of the Public Service of
Canada, Ottawa, for itself.
Public Service Staff Relations Board,
Ottawa, for itself.
Honeywell, Wotherspoon, Ottawa, for Public
Service Alliance of Canada.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a decision of the Public
Service Staff Relations Board (hereinafter the
Board) dated November 5, 1979. The relevant
facts giving rise to this matter are as follows. This
applicant took the position that one M. G. Clen-
nett, Director (Foreign), Office of the Inspector
General of Banks, Department of Finance, Gov
ernment of Canada, is employed in a position
confidential to the Inspector General of Banks, the
Chief Executive Officer of that portion of the
Public Service known as the Office of the Inspec
tor General of Banks, Department of Finance, and
is therefore a person described in paragraph (a) of
the definition of "person employed in a managerial
or confidential capacity" in section 2 of the Public
Service Staff Relations Act, R.S.C. 1970, c. P-35'.
The respondent herein advised the Board that it
was not satisfied that Mr. Clennett was so
employed and asked the Board to appoint an
examiner to inquire into the duties and respon
sibilities of Mr. Clennett. The applicant then
objected to the appointment of an examiner on the
basis that persons coming within paragraph (a)
supra of section 2 are not "designated" as exclu-
sions but are excluded by operation of law and that
since neither the employer nor the Board has any
power of designation, there is no corresponding
right of objection. The Board, however, decided
that it had authority under section 18 of the Public
' That definition reads as follows:
2. In this Act
"person employed in a managerial or confidential capacity",
means any person who
(a) is employed in a position confidential to the Governor
General, a Minister of the Crown, a judge of the Supreme
or Federal Court of Canada, the deputy head of a depart
ment or the chief executive officer of any other portion of
the Public Service, or
(b) is employed as a legal officer in the Department of
Justice,
and includes any other person employed in the Public
Service who in connection with an application for certifica
tion of a bargaining agent for a bargaining unit is desig
nated by the Board, or who in any case where a bargaining
agent for a bargaining unit has been certified by the Board
is designated in prescribed manner by the employer, or by
the Board on objection thereto by the bargaining agent, to
be a person
(c) who has executive duties and responsibilities in relation
to the development and administration of government
programs,
(d) whose duties include those of a personnel administrator
or who has duties that cause him to be directly involved in
the process of collective bargaining on behalf of the
employer,
(e) who is required by reason of his duties and responsibili
ties to deal formally on behalf of the employer with a
grievance presented in accordance with the grievance pro
cess provided for by this Act,
(f) who is employed in a position confidential to any
person described in paragraph (b),(c),(d) or (e), or
(g) who is not otherwise described in paragraph (c),(d),(e)
or (/), but who in the opinion of the Board should not be
included in a bargaining unit by reason of his duties and
responsibilities to the employer;
Service Staff Relations Act 2 to appoint an exam
iner and accordingly appointed an officer of the
Board, "... to inquire into and report to the Board
on the duties and responsibilities of Mr. Clennett."
Pursuant to section 25 of the Public Service Staff
Relations Act, the applicant requested the Board
to review that decision. The Board did review its
decision and refused to rescind, alter, amend or
vary it in any way. Subsequently the inquiry offi
cer so appointed conducted his inquiry, and sub
mitted his report to the Board, copies of which
were sent to both of the parties hereto. Neither
party questioned the accuracy of the report and
consequently both parties accept as a fact, the
finding of the examiner that Mr. Clennett occupies
the position of Director (Foreign) in the Office of
the Inspector General of Banks, Department of
Finance. This applicant however, renewed its chal
lenge to the authority of the Board under section
18 supra to determine Mr. Clennett's status as a
person coming within paragraph (a) supra. The
Board then held a hearing on June 19, 1979 and
on October 25, 1979, delivered the decision herein
impugned in which it decided that it has jurisdic
tion to determine Mr. Clennett's status under
paragraph (a). It further instructed its Secretary/
Registrar to communicate with the parties to
arrange a date on which the hearing would be
reconvened at which time the Board proposed to
hear all evidence relevant to the issue. The hearing
has not been reconvened because of the com
mencement of this section 28 application which
attacks the Board's jurisdiction to hold the
hearing.
Counsel for the applicant refers to the distinc
tion in the definition section of the Public Service
2 Said section 18 reads as follows:
18. The Board shall administer this Act and shall exercise
such powers and perform such duties as are conferred or
imposed upon it by, or as may be incidental to the attainment
of the objects of, this Act including, without restricting the
generality of the foregoing, the making of orders requiring
compliance with this Act, with any regulation made hereun-
der or with any decision made in respect of a matter coming
before it.
Staff Relations Act relating to persons covered by
paragraphs (a) and (b) thereof on the one hand
and persons who fall within paragraphs (c) to (g)
thereof on the other hand. He points out that,
under paragraphs (c) to (g), the Board is specifi
cally empowered to determine managerial or confi
dential status in connection with an application for
certification of a bargaining agent and also pursu
ant to the Regulations of the Board, where such
designation is objected to by the bargaining agent.
In cases where such designation is not objected to
by the bargaining agent, the employer has the
power to designate. Thus, in his submission, since
these powers are specifically restricted to para
graphs (c) to (g), it is to be implied that persons
falling within (a) and (b) must be so recognized
whether or not a bargaining agent objects and it is
to be further inferred that the Board has no power
to look into the designation of persons in para
graphs (a) and (b).
I do not agree with this submission. To deter
mine this issue, it is instructive, in my view, to
consider the scheme, objectives and purpose of the
Public Service Staff Relations Act. The Act is
entitled "An Act respecting employer and
employee relations in the Public Service of Cana-
da". Section 3 makes the Act applicable to all
portions of the Public Service. Section 6 confers
upon every employee the right to be a member of
an employee organization and the right to partici
pate in the lawful activities of the employee organ
ization of which he is a member. "Employee" is
defined as a person employed in the Public Service
other than certain excepted classes as therein
specified, one of which classes is persons employed
in a managerial or confidential capacity, the class
in issue in this application.
The powers and duties of the Board are set out
in sections 18 to 25 of the Act. It was the submis
sion of each of counsel for the respondent, the
intervenant, and for the Board, that section 18 of
the Act confers upon the Board the necessary
power to determine compliance with the Act, and
to administer and supervise the implementation of
the Act by the parties. I agree with this submis
sion. The issue in this case is whether or not Mr.
Clennett comes within the definition of paragraph
(a) quoted supra. The employer submits he does,
the union submits he may not. The answer depends
on the facts surrounding Mr. Clennett's employ
ment as applied to the definition contained in the
Act. Section 18 requires the Board to administer
the Act and for the purpose of attaining the
objects of the Act, gives the Board such incidental
powers as may be necessary to achieve that end.
The fact that specific powers are granted and
specific procedures are provided in paragraphs (c)
to (g) does not, in my view, impliedly exclude the
power to make necessary determinations in respect
of paragraphs (a) and (b). In my opinion, the
situation here is similar to that discussed by Le
Dain J. in the case of Interprovincial Pipe Line
Ltd. v. National Energy Board'. As in that case,
here also, I believe there is a practical necessity for
the proper administration of the Act, that the
Board have jurisdiction to make determinations
under paragraphs (a) and (b). To hold otherwise
would have the effect of deciding that the employ
er, in a situation of this kind, would have the right
to decide the issue unilaterally simply by claiming
that a particular employee comes within para
graph (a) or (b). It cannot have been the intention
of Parliament in conferring on the Board the wide
powers set out in section 18, to so restrict the
Board in its operations so as to permit of such an
incongruous result. I would also adopt the passage
from 36 Halsbury, 3rd edition, vol. 36, page 436,
paragraph 657 which Le Damn J. adopted in the
Interprovincial case supra and which reads as
follows [at page 608]:
The powers conferred by an enabling statute include not only
such as are expressly granted but also, by implication, all
powers which are reasonably necessary for the accomplishment
of the object intended to be secured.
In my view, it is "reasonably necessary" for this
Board to be clothed with the power to determine
who is and who is not to be included in the
exclusions from the definition of "employee" speci
fied in paragraphs (a) and (b) supra.
It was also submitted by the applicant that the
decision here under review was a purely declarato-
ry decision that the Board had no authority to
make under section 18 of the Act supra. I do not
agree that the decision in this case was a purely
declaratory decision.The decision in this case was
a jurisdictional decision and was necessary as a
3 [1978] 1 F.C. 601 at pp. 606 and 607.
preliminary essential to a determination of the
issue before it. In the event the Board had decided
it was without jurisdiction, the practical result
would have been that Mr. Clennett would remain
excluded from the status of employee as defined in
the Act. The rights conferred upon an employee by
section 6 would not accrue to Mr. Clennett. Con
versely, the prohibitions upon persons employed in
a managerial or confidential capacity as set out in
sections 8 and 9 of the Act would apply to him.
Thus, the jurisdictional decision by the Board was
not purely declaratory nor was it made in a
vacuum. The decision was necessary for the proper
carrying on of the Board's duties and that decision
carries with it very definite consequences for the
individual concerned. The applicant relied on the
decision of this Court in Public Service Alliance of
Canada v. Public Service Staff Relations Board 4 .
In my opinion, that case has substantially different
facts from the case at bar because there the union
requested a declaration under section 18 of the
Act. The Court held that "An authority to make a
purely declaratory decision is not, in my view, to
be implied from a statutory provision imposing on
a body the duty to administer an Act nor from a
provision requiring it to exercise such powers as
may be incidental to the attainment of its objects;
.". For the reasons stated supra, I have conclud
ed that the decision here was not "a purely
declaratory decision". Consequently the decision
of the Court in the Public Service Alliance of
Canada case supra, that the Board did not have
the power to make a purely declaratory decision
under section 18 does not apply to the instant case
where the Board's decision has very practical and
tangible consequences.
For all of the above reasons, I would dismiss the
section 28 application.
* * *
URIE J.: I agree.
* * *
KERR D.J.: I agree.
4 [1979] 2 F.C. 599 at p. 619.
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.