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T-2233-78
Canadian Union of Postal Workers (Plaintiff) v.
J. H. Brown, in his capacity as Chairman of the Public Service Staff Relations Board (Defendant)
and
Treasury Board, represented by the Attorney Gen eral of Canada and the Public Service Staff Rela tions Board (Mis -en-cause)
Trial Division, Dubé J.—Ottawa, February 26 and 29, 1980.
Public Service — Action to determine whether Chairman of Public Service Staff Relations Board enjoys any discretion when deciding on the terms of reference of a conciliation board — Public Service Staff Relations Act, R.S.C. 1970, c. P-35, ss. 59, 83, 86(4).
The "terms of reference" given by the Chairman of the Public Service Staff Relations Board pursuant to section 83 of the Public Service Staff Relations Act to a conciliation board established pursuant to section 59 of the Act did not contain all the questions the two parties submitted to him. He eliminated some and added others. He did not merely incorporate the matters raised by the parties but added his own observations. Plaintiff submits that the Chairman does not have this type of discretion under section 83. It is not up to him to decide what matters should or should not be submitted to the board or to decide on the legality of a proposal. This would be the role of the conciliation board itself, or the Board or the courts. The Chairman has a strictly administrative role: he collects the information from the two parties and passes it on to the board. He must not assume a quasi-judicial power but must quite simply, as section 83 provides "deliver a statement".
Held, the action is dismissed. The purpose of establishing a conciliation board is to assist the parties in reaching agreement. The Public Service Staff Relations Act imposes more restric tions on negotiators than labour legislation in the private sector in Canada. If the board recommended measures which contra vene those restrictions, these would not be implemented. It is in this sense that the Chairman must see that he refers to the board only matters which it can deal with effectively. Under section 83, the Chairman may amend the statement he delivers to the board; he may do so either before or after the findings are reported. He may also, under section 86(4), direct the board to reconsider and clarify or amplify its report or to consider and report on any matter added to such statement. The Chairman has a certain amount of discretion under section 83. His power is not limited to referring all subjects automati cally to the board, as he must do in the case of arbitration under section 67. He can amend the statement by adding or
deleting matters which in his view are contrary to the provisions of the Act, as he deems necessary or advisable in the interest of assisting the parties in reaching agreement.
ACTION. COUNSEL:
G. Nadeau for plaintiff. F. Lemieux for defendant.
H. Newman for mis -en-cause Treasury Board.
J. McCormick for mis -en-cause Public Ser vice Staff Relations Board.
SOLICITORS:
Trudel, Nadeau, Letourneau, Lesage & Cleary, Montreal, for plaintiff.
Herridge, Tolmie, Ottawa, for defendant. Deputy Attorney General of Canada for mis - en-cause Treasury Board.
Public Service Staff Relations Board, Ottawa, for itself.
The following is the English version of the reasons for judgment rendered by
DuBÉ J.: The issue to be determined here is whether under section 83 of the Public Service Staff Relations Act' the Chairman of the Public Service Staff Relations Board ("the Chairman") enjoys any discretion when deciding on the terms of reference of a conciliation board. The section reads as follows:
83. Forthwith upon the establishment of a conciliation board, the Chairman shall deliver to the conciliation board a statement setting forth the matters on which the board shall report its findings and recommendations to the Chairman, and the Chairman may, either before or after the report to him of its findings and recommendations, amend such statement by adding thereto or deleting therefrom any matter he deems necessary or advisable in the interest of assisting the parties in reaching agreement.
This interpretation became necessary as a result of a judgment of the Federal Court of Appeal (A-307-79) authorizing the Canadian Union of Postal Workers to file an amended statement of
1 R.C.S. 1970, c. P-35.
claim dealing solely with the extent of the Chair- man's powers under the above-cited section.
Section 83 is in Part III of the Act, which contains provisions applicable to the resolution of disputes. Under section 59, where the parties have bargained collectively without reaching an agree ment, if the parties choose arbitration sections 63 to 76 apply to the resolution of the dispute; if they choose conciliation, sections 77 to 89 will apply.
Conciliation was chosen here, and section 77 therefore governs the request for the establishment of a board. Section 78 provides that the Chairman shall establish such a board unless it appears to him, after consultation with each of the parties, that such a board is unlikely to serve the purpose of assisting the parties in reaching an agreement. The subsequent sections govern the constitution of the board, while section 83, finally, provides for its terms of reference.
The procedure to be followed by the board is provided for in section 84; as soon as possible after receiving the statement referred to in section 83, the board shall endeavour to bring about agree ment between the parties in relation to the matters set forth in the statement. Section 86 provides that the board shall, within fourteen days after the receipt of the statement, report its findings and recommendations to the Chairman. Subsection 86(2) provides that subsection 56(2) applies, mutatis mutandis, to the report. The said subsec tion 56(2) provides that no collective agreement shall provide for the alteration of any existing term or condition of employment necessitating the amendment of any legislation by Parliament. Sub section 86(3) provides that a report must not contain any recommendation concerning the appointment, release and so on of employees. Finally, another, more general restriction respect ing the board's powers is contained in section 7, which provides that nothing in this Act shall be construed to affect the right or authority of the employer to determine the organization of the Public Service.
Sgction 89, the last section in Part III, provides that a recommendation of a board may be binding on the parties where the parties so agree before the report.
The "terms of reference" given by the Chairman to the board in the present case were filed in order to situate the problem in a specific and real con text. The Chairman did not include in these terms of reference all the questions the two parties sub mitted to him. He eliminated some and added others. He did not merely incorporate the matters raised by the parties but added his own observations.
The document entitled "Terms of Reference of the Conciliation Board" is 39 pages long (English version) and contains a number of comments by the Chairman. By way of example only, he writes at page 6 that clause (a) of Article 4.07, Compul sory Membership, "contravenes the prohibition contained in paragraph 8(2)(c) of the Act". He adds that "This in turn would contravene para graph 56(2)(a) of the Act, as clause (a) would require an amendment to paragraph 8(2)(c)". On page 8, concerning clause (5) of Article 9 which provides "that [an] employee will not be allowed to withdraw his grievance without the Union's consent", the Chairman wrote that in his view "the proposal would require an amendment to section 90 of the Act and therefore falls within the prohi bition of paragraph 56(2)(a) of the Act". He concludes that "[this] proposal is not referred to the conciliation board".
At pages 8-9, when dealing with clause (6) of the same Article 9, the Chairman says that he sees "no reason why it should not be referred to the conciliation board, provided no recommendation is made that expands or restricts the provision of subsection 95(3) which would then offend para graph 56(2)(a) of the Act". He concludes as fol lows: "With that caution, the proposal is referred to the conciliation board".
According to learned counsel for the plaintiff, the Chairman does not have this type of discretion under section 83. It is not up to him to decide what matters should, or should not, be submitted to the board or to decide on the legality of a proposal. This would be the role only of the conciliation board itself, or the Board, or the courts. According to him, the Chairman has a strictly administrative role: he collects the information from the two parties and passes it on to the board. The Chair man must not assume a quasi-judicial power but must quite simply, as section 83 provides, "deliver
a statement". He is of the view that in accordance with the spirit of conciliation proceedings, all ques tions must be referred to the board to enable it to play its dual role of investigator and conciliator more effectively. He relies on subsection 82(2) to the effect that no process may be entered to restrain any of the proceedings of the board.
Again according to counsel, if Parliament had wished to confer a discretionary power on the Chairman it would have done so expressly.
However, the purpose of establishing a concilia tion board is to assist the parties in reaching agreement. Under section 78 cited above, the Chairman is not obliged to establish such a board: he is to do so only if it appears to him that such a board may be profitable. The terms of reference given to the board must therefore not be regarded as an order from the Chairman, since the parties are not bound by the findings of the board, unless they so agree.
The Public Service Staff Relations Act imposes more restrictions on negotiators than labour legis lation in the private sector in Canada. If the board recommended measures which contravene the above-cited restrictions, these would not be imple mented. It is in this sense that the Chairman must see that he refers to the board only matters which it can deal with effectively. Moreover, the board reports to the Chairman himself, not to the parties. The Chairman is not interested in receiving find ings which contravene the above-mentioned re strictions.
Moreover, according to the second part of sec tion 83, the Chairman may amend the statement he delivers to the board. He may do so either before or after the findings are reported, by adding thereto or deleting therefrom any matter he "deems necessary or advisable in the interest of assisting the parties in reaching agreement". In view of such a provision it is difficult to conclude that the Chairman's role is limited to collecting all subjects and matters submitted by the parties and passing them on to the board without any com ments, additions or subtractions.
The situation is entirely different as regards the Arbitration Tribunal (before the amendments), when under section 65 the Chairman must refer the matter in dispute to the Tribunal. Under sec tion 67, the matters specified in the notice sent by the Chairman to the Arbitration Tribunal consti tute the Tribunal's terms of reference. The Chair man has no discretion in this regard. It is the Tribunal itself which decides "after considering the matters in dispute together with any other matter that [it] considers necessarily incidental to the resolution ...".
The extent of the Chairman's powers is also governed by subsection 86(4), which authorizes the latter, after a board has reported its findings to him, to "direct it to reconsider and clarify or amplify its report or any part thereof, or to consid er and report on any matter added to such state ment ...".
It must therefore be concluded that the Chair man has a certain amount of discretion under section 83. His power is not limited to referring all subjects automatically to the board. He can amend the statement by adding or deleting matters which in his view are contrary to the provisions of the Act, as he deems necessary or advisable in the interest of assisting the parties in reaching agreement.
The action is therefore dismissed, but without costs.
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