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A-188-81
The Queen in right of Canada as represented by the Treast>iry Board (Applicant)
v.
Canadian Air Traffic Control Association (Respondent)
Court of Appeal, Pratte, Urie B. and Kerr D.J.— Ottawa, September 24 and October 21, 1981.
Judicial review — Public Service — Application to review and set aside a decision of the Public Service Staff Relations
Board S. 79 of the Public Service Staff Relations Act provides for the designation of public servants whose functions are related to public safety and who are therefore denied the right to strike — Board held that its duty was to determine the number of employees of each class in the bargaining unit that would be needed in order to provide the services necessary to ensure the safety of the air services that, in the event of a strike, must be maintained in the interest of the safety or
security of the public Board enumerated the duties that
were essential in the event of a strike Whether the Board
erred by assuming the authority to decide what duties desig nated employees should perform in the interest of the safety and security of the public and the authority to determine what services should be provided in the event of a strike Applica tion allowed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Public Service Staff Relations Act, R.S.C. 1970, c. P-35, ss. 2, 79, 101(1)(c).
Application to review and set aside a decision of the Public Service St9ff Relations Board. Section 79 of the Public Service Staff Relations Act provides for the designation of employees in the Public Service whose functions are related to public safety and who are therefore denied the right to strike. Follow ing a decision by the Minister of Transport that, in the event of a strike, commercial airlines should maintain their normal operations, the applicant requested that 1,782 operational air traffic controllers be designated under section 79. The respond ent objected on the ground that the designation should not be made on the assumption that in the event of a strike, the normal commercial air services would be maintained, but on the assumption that during a strike, the air traffic would be reduced to those flights that were necessary in the interest of the safety or security of the public. The Board considered that its duty under section 79 was to determine the number of employees of each class in the bargaining unit that would be needed in order to provide the services necessary to ensure the safety of the air services that, in the event of a strike, must be maintained in the interest of the safety or security of the public. It enumerated the duties that were essential in the event of a strike and designated 272 employees and 151 alternates. The applicant submitted that the Board erred because it wrongly assumed the authority to decide what duties designated employees should perform in the interest of the safety and security of the public and the authority to determine what services the Government of Canada and the Department of Transport should provide in the event of a strike.
Held, the application is allowed. Section 79 merely empowers the Board to designate the employees whose duties are related to the security or safety of the public. It clearly does not authorize the Board to regulate the effect of the designation by prescribing the duties that designated employees will have to perform in the event of a strike. The effect of the designation is governed by the statute itself which, in paragraph 101(1)(c), provides that a designated employee shall not "participate in a strike". Section 79 merely empowers the Board to designate employees or classes of employees on the basis of their duties as they exist at the time the designation is made. The nature of those duties at that time is, therefore, the only factor which the Board may take into account in carrying out its functions under section 79. All employees "whose duties consist in whole or in part of duties the performance of which ... is or will be necessary in the interest of the safety or security of the public" must be designated by the Board even if the presence at work of all those employees may not be necessary for the satisfactory performance of those duties. It follows that the Board may not discriminate between employees having similar duties by desig nating only a few of them. The Board may not make a designation on the basis of the duties that, in its view, an employee should be required to perform in the event of a strike. The Board does not have the power, under section 79, to determine the number of employees that should be required to stay at work, in the event of a strike, so as to provide the public with the minimum level of services required in the interest of public safety. The authority of the Board under section 79 is merely to determine the employees or classes of employees who, at the time the determination is made, have duties of the kind described in section 79. The Board has neither the authority to prescribe the work to be done by designated employees•,nor the power to determine the number of employees that should be required to work in the event of a strike so as to maintain the level of services that the Board considers to be essential. The sole authority of the Board is to determine the employees or classes of employees whose duties, at the time the determina tion is made, are of the kind described in section 79.
APPLICATION for judicial review. COUNSEL:
R. Cousineau for applicant.
J. Nelligan, Q.C. for respondent.
J. McCormick for Public Service Staff Rela
tions Board.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Nelligan/Power, Ottawa, for respondent. Legal Services, Public Service Staff Rela tions Board, Ottawa, for Public Service Staff Relations Board.
The following are the reasons for judgment rendered in English by
PRATTE J.: This section 28 application is direct ed against a decision of the Public Service Staff Relations Board rendered under section 79 of the Public Service Staff Relations Act, R.S.C. 1970, c. P-35.
Section 79 provides for the designation of em ployees in the Public Service whose functions are related to public safety and who, for that reason, are denied the right to strike:
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.
The respondent is an employee Association which is and has been for many years the certified bargaining agent for the air controllers in the
Public Service (the Air Traffic Control Group). Until 1981, the Public Service Staff Relations Board never had to designate the employees in that unit whose services were essential to the safety and security of the public. The applicant and the respondent had always agreed to the designation of a relatively small number of air controllers repre senting between 10% and 15% of the employees in the unit. Those agreements had been possible because both parties had assumed that, in the event of a strike by the air controllers, all commer cial air traffic would stop. However, on November 20, 1980, following a decision by the Minister of Transport that, in the event of a strike, commer cial airlines should maintain their normal opera tions, the applicant forwarded to the Public Ser vice Staff Relations Board a request that 1,782' operational air traffic controllers be designated under section 79 of the Public Service Staff Rela tions Act. The respondent objected to the employ er's request. It conceded that the number of desig nated employees proposed by the applicant was reasonable if the designation was made on the assumption that, in the event of a strike, the normal commercial air services would be main tained. It contended, however, that the designation should not be made on that basis but, rather, on the assumption that, during a strike, the air traffic would be reduced to those flights that were neces sary in the interest of the safety or security of the public. The Board adopted that view. It considered that its duty under section 79 was to determine the number of employees of each class in the bargain ing unit which would be needed in order to provide the services necessary to ensure the safety of the air services that, in the event of a strike, must be maintained in the interest of the safety or security of the public. On that basis, it proceeded to enu merate (paragraph 41 of its decision) the various duties that, in the event of a strike, would be required to be performed by different classes of employees in the unit in the interest of the safety or security of the public and it determined (para- graph 42 of its decision) the number of employees of each class, in each work location, that would have to perform those duties in the event of a strike. As a result, it designated 272 employees and 151 alternates to perform the duties outlined
' That figure was later reduced to 1,462.
in paragraph 41 of its decision.
Counsel for the applicant argued that the deci sion of the Board was vitiated by three errors. He said that:
(a) the Board wrongly held that, under section 79, the burden of proof rests equally on both the employer and the bargaining agent;
(b) the Board wrongly assumed the authority to decide what duties designated employees should perform in the interest of the safety and security of the public; and
(c) the Board wrongly assumed the authority to determine what services the Government of Canada and the Department of Transport should provide in the event of a strike.
As was indicated at the hearing, it is not neces sary to express any opinion on the applicant's first contention relating to the burden of proof since it appears that the decision reached by the Board in this case was in no way dependent on the views it expressed on that question.
The other two contentions put forward on behalf of the applicant relate to the authority of the Board under section 79. The applicant's counsel argued that the Board, in this case, had rendered a decision which it was clearly not empowered to make by that section.
Counsel for the respondent answered that the manner in which the Board had applied section 79 in this case was the only one which was in harmo ny with what the parties had done in the past and with the manifest purpose of the section. As that purpose is clearly the protection of the safety and security of the public, the section must be applied, according to counsel, so as to deny the right to strike only to the extent required to protect the security and safety of the public. The decision of the Board, said he, meets that requirement: it protects both the public and the rights of the members of the bargaining unit. He argued that the strict interpretation proposed by counsel for the applicant was not in harmony with the purpose of the section since its result was:
1. to force designated employees to perform all their normal duties including those having no
relation to the safety and security of the public; and
2. to deny the right to strike to employees who, in fact, could strike without endangering public safety and security.
The powers and duties of the Board in relation to the designation of employees are defined in section 79. If the meaning of that section is clear, it need not be interpreted and must be applied as it is written, even if the result may appear to be unjust or absurd. It is only if the section is ambig uous that, in determining its meaning, consider ation should be given to its object and to factors such as injustice, hardship, absurdity and inconve nience. What does section 79 say? It provides that the Board shall determine "the employees or classes of employees in the bargaining unit ... 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."
Even if the application of the section may give rise to difficulties, it is clear, in my view, that it merely empowers the Board to designate the employees whose duties are related to the security or safety of the public. It clearly does not author ize the Board to regulate the effect of the designa tion by prescribing the duties that designated employees will have to perform in the event of a strike. The effect of the designation is governed by the statute itself which, in paragraph 101(1)(c), provides that a designated employee shall not "participate in a strike" 2 ; in other words, under paragraph 101(1)(c), a designated employee, in the event of a strike, must work as if there were no strike.
It is also clear, in my view, that section 79 merely empowers the Board to designate em ployees or classes of employees on the basis of their duties as they exist at the time the designa-
2 The word "strike" is defined as follows in section 2 of the Act:
2....
"strike" includes a cessation of work or a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output;
tion is made. The nature of those duties at that time is, therefore, the only factor which the Board may take into account in carrying out its functions under section 79. All employees "whose duties consist in whole or in part of duties the perform ance of which . .. is or will be necessary in the interest of the safety or security of the public" must be designated by the Board even if the presence at work of all those employees may not be necessary for the satisfactory performance of those duties. It follows that the Board may not discrimi nate between employees having similar duties by designating only a few of them. It also follows that the Board may not make a designation on the basis of the duties that, in its view, an employee should be required to perform in the event of a strike. It also follows that the Board does not have the power, under section 79, to determine, as it has done in this case, the number of employees that should be required to stay at work, in the event of a strike, so as to provide the public with the minimum level of services required in the interest of public safety. The authority of the Board under section 79 is merely to determine the employees or classes of employees who, at the time the determi nation is made, have duties of the kind described in section 79. The law, in this respect, is clear and, in my view, requires no interpretation.
For these reasons, I would allow this applica tion, set aside the decision under attack and refer the matter back to the Board to be decided on the basis that, under section 79, (a) the Board has neither the authority to prescribe the work to be done by designated employees nor the power to determine the number of employees that should be required to work in the event of a strike so as to maintain the level of services that the Board con siders to be essential, and (b) the sole authority of the Board is to determine the employees or classes of employees whose duties, at the time the deter mination is made, are of the kind described in that section.
* * *
The following are the reasons for judgment rendered in English by
URIE J.: I have had the advantage of reading the reasons for judgment of my brother Pratte J. with which I fully agree and, as well, with his proposed disposition of the section 28 application.
However, in view of the importance of the matter, not only to the respondent herein but to those other persons in the Public Service who may be affected by the result, I propose to set out, as briefly as possible, a somewhat different approach whereby I reach the same conclusion. The facts have been accurately summarized by Pratte J. so that it is not necessary for me to repeat them. I shall refer to further facts only to the extent necessary to make my reasons intelligible.
On January 6, 1981, upon the request of counsel for each of the parties, the Public Service Staff Relations Board ("the Board") held a hearing for the purpose of determining the jurisdiction of the Board under section 79 of the Public Service Staff Relations Act having regard to the fact that the Minister of Transport had, on November 20, 1980, advised the respondent that he proposed to apply to the Board "for sufficient designations under section 79 of the Public Service Staff Relations Act to enable the commercial air system to operate during any strike of Air Traffic Controllers." Subsequently it was confirmed that the proposal had been made pursuant to the Aeronautics Act, R.S.C. 1970, c. A-3, to enable all government aerodromes and air stations to be maintained operational.
As a result of that hearing, in a decision dated January 27, 1981, the Board held that:
The sole issue upon which we are being called upon to make a decision is whether or not this Board is bound by or must take into account the above referred to edict [that government aerodromes and air stations be maintained operational at all reasonable times] in making its determination under section 79 of the Act for the Air Traffic Control Group bargaining unit.
The Board found that nothing in the Public Service Staff Relations Act ("the Act") imposed any limitation on or in any way fettered the au thority of the Board under section 79. That being so, it held that it was not bound to take into account ministerial or governmental pronounce-
ments as to the level of service to be maintained. The Board went on to say that:
Further, in the absence of any definition or guidance in the Public Service Staff Relations Act as to the interpretation or meaning to be attached to the words "safety or security" in relation to the public, the Board must apply the criteria it deems to be appropriate, in any particular case, based on the evidence and arguments placed before it by the parties of interest.
10. Implicit in making its determinations as to the number or classes of air traffic controllers needed for "designation" in the instant case, is the requirement that the Board make a decision as to the level of services that are necessary to be maintained at federal government regulated airports in order to ensure the safety or security of the public in the event of a lawful strike. The level conceivably could be the same as that directed by the Minister of Transport and/or the Government. We would add that if the Board did reach such a decision, then presumably there would be reason to "designate" the full complement of operational air traffic controllers as proposed by the Employer. On the other hand, the Board conceivably could find that a substantially reduced level of services, possibly the level agreed upon by the parties during previous negotiations, is sufficient for the safety or security of the public. In such an event the number of air traffic controllers required for "designation" would be dramatically lower. Admittedly, in the latter circum stances, or if the Board should find any level of service less than that decided upon by the Minister of Transport and/or the Government is necessary for the safety or security of the public, the Government would have serious problems in implementing its decision. Notwithstanding that fact, without amendment to the Public Service Staff Relations Act, this Board has no alternative but to determine the level of services which, in its judgment, is or will be necessary for the safety or security of the public. That determination, of course, can be made only after the Board has heard and assessed the evidence and arguments advanced by the parties in support of their respec tive positions.
11. Accordingly, the Board directs that this matter be listed for continuation of hearing at which time it will entertain the evidence of the parties as to the airport services that are required to be performed by members of the Air Traffic Control Group bargaining unit in the interest of the safety or security of the public and the number and classes of air traffic controllers that need be designated in order to maintain that level of service.
It was as a result of that direction that the hearing was held which resulted in the decision which was rendered on April 7, 1981, and which is sought to be set aside in these proceedings. I have quoted from the January 27 decision at length because it shows the reasoning process which led the Board to conclude that evidence must be adduced before it to enable it to determine the level of service to be provided. In so concluding, in
my view, the Board erred in its interpretation of the authority conferred upon it by subsection 79(1).
As was pointed out by my brother Pratte J., the subsection merely empowers the Board to desig nate the employees whose duties are related to the safety or security of the public. It does not author ize the Board to determine the level of service to be provided. Counsel for the employer apparently advanced this proposition to the Board early in the proceedings leading to the April 7 decision. In answer thereto the Board had this to say:
With respect, it would seem that counsel has misconstrued the reference to "level of services" in the Board's decision of January 27. A careful reading of paragraph 10 of that decision makes it clear that it is the level of services to be provided by air traffic controllers that is referred to. It should be self-evi dent that in order to determine which air traffic controllers (numbers and classes) should be designated under section 79, it is necessary to determine which services (level of services) provided by air traffic controllers must be maintained in the interest of the safety or security of the public in the event of a lawful strike. To be sure, certain consequences about levels of services other than air traffic control may flow from a determi nation under section 79 of the Act—decisions by the Minister of Transport regarding operations of airports, by private air carriers regarding the scheduling or cancellation of flights, by pilots of commercial or private aircraft whether or not to fly, etc.—but it is not the Board that directs what these levels of services should be. [Emphasis added.]
Later in these reasons, in paragraph 31, the Board summarized the approach it intended to and did adopt in making its determination:
31. In the absence of an agreement of the parties the Board must now proceed to make its determination of designated employees in accordance with section 79 of the Act. It is consistent with the language of section 79 of the Act and with the Board's jurisprudence since 1969 to state the issues in the present case as follows. Given the fact that certain air services must be maintained in the interest of the safety or security of the public and the extent to which the safety or security of aircraft operations are dependent on effective air traffic con trol: (i) What duties are performed by air traffic controllers the continued performance of which is necessary in the interest of the safety or security of the public? (ii) What other possible but unpredictable situations involving the safety or security of the public would require that adequate air traffic control services be available if these contingencies were to arise? (iii) In light of (i) and (ii), what are the numbers and distribution of
air traffic controllers that, pursuant to section 79 of the PSSRA, are or would be necessary in the interest of the safety or security of the public, and must be so designated by the Board?
These clarifications of the Board's views serve a useful purpose in that they demonstrate the error made by the Board more clearly, perhaps, than the quotations earlier set out herein from the Board's decision of January 27, 1981. They show that the Board perceived its duty to be, first, "to determine which services ..." provided by the air traffic controllers must be maintained and, second, to determine the number and classes of air traffic controllers to be designated to provide such ser vices. But that is not what section 79 directs. As I read the section, it does not impose on the Board the duty of determining which services rendered by the controllers must be maintained in the event of a strike. Moreover, it does not require or authorize the Board to determine the number or classes of employees to be designated to perform those duties or to prescribe limitations on the scope of the duties of various employees or classes of employees for such purpose.
The sole duty of the Board pursuant to subsec tion 79(1) is to determine, before a conciliation board has been established, what employees or classes of employees in the bargaining unit are, at the date the matter is being determined, perform ing duties which are necessary for the safety and security of the public. Neither the wording of the subsection taken by itself nor in the context of the Act as a whole contemplates that such a determi nation is to be made on the basis of the safety and security necessities of the public only in a strike situation. It follows that the subsection does not authorize the Board to designate duties to be performed or the extent of services to be rendered in the event of a strike. The words of the section are clear, unambiguous and unequivocal and do not require an interpretation which enlarges the ambit of the Board's duty for the implementation of the direction contained therein. The Board's fundamental error was in arrogating to itself a power which the section did not confer upon it.
The adoption of the construction of the subsec tion which Pratte J. and I propose, does not, as counsel for the respondent urged that it did, deprive a substantial portion of the bargaining unit of its right to strike. The right of public servants to strike is qualified by the Act. If agreement by the employer and the employees or the bargaining agent, can be reached as to which employees are to be designated that agreement will end the matter. On the other hand absent agreement, the Board designates those employees or classes of employees whose duties bring them within subsection 79(1). 3 Paragraph 101(1)(c) 4 then operates to preclude such designated employees from participating in a strike. It is the operation of those sections of the Act which deprives the employees so designated of the strike option. The fact that such persons may have elected to bargain for a collective agreement through the conciliation/strike process rather than through arbitration, not knowing that they would become designated employees and thus not permit ted to strike, cannot be permitted to influence or affect the construction to be given subsection 79(1).
Nor can the fact that in the past the employer and the bargaining agent were able to agree on the number of air traffic controllers to be designated before a strike have any influence on the interpre tation given. The task imposed on the Board is to carry out the will of Parliament as expressed in the Act—no more, no less. If that necessitates reach ing a result which differs from that previously reached by mutual agreement of the parties, that fact cannot in any way affect the construction of
3 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.
4 101. (1) No employee shall participate in a strike (c) who is a designated employee.
the section. Past practice does not, as the Board seemed to think, provide a guide for it to consider in designating employees. The only guide is pro vided by the words of subsection 79(1). Those words - do not support the construction given by the Board.
For the foregoing reasons, as well as for the reasons expressed by Pratte J., I would dispose of the application in the manner proposed by him.
* * *
The following are the reasons for judgment rendered in English by
KERR D.J.: I have considered the reasons for judgment of Pratte J. and Urie J. The relevant facts and issues are set forth in their reasons, with which I agree, and therefore I need not repeat them here. I also agree with their proposed disposi tion of this section 28 application.
It is unquestionable that the air traffic control lers normally exercise a substantial control of air traffic in Canada, including a large volume of commercial air passenger operations of the various airlines. The occupational group definition of the Air Traffic Control Group in the Canada Gazette, March 25, 1967, Vol. CI, No. 12, quoted in the minority decision of two members of the Public Service Staff Relations Board, reads as follows:
The control of air traffic to ensure its safe and expeditious movement through controlled airspace and on the maneuvering areas of airports.
The employer's statement for designation of air traffic controllers under section 79 of the Public Service Staff Relations Act, submitted to the Board on November 20, 1980, was made following a decision under the Aeronautics Act to maintain all government aerodromes and air stations opera tional at all reasonable times.
In making a determination under section 79 of what performance of duties of air traffic control lers is or will be necessary in the interest of the safety or security of the public (where in this instance objection to the employer's submission had been filed with the Board) the Board must ascertain what, in fact, the duties of the controllers are at the time of such determination, and it is on the basis of such existing duties that the Board must determine whether the controllers have duties that consist in whole or in part of duties the performance of which is or will be necessary in the interest of the safety or security of the public (not what "operations" of the airlines are necessary in that interest) and what designation should accord ingly be made. It appears to me that on this occasion the majority of the members of the Board did not make their determination of designation on the basis of those duties. On the contrary, in paragraph 41 of their decision they specified cer tain duties as being necessary in the interest of the safety or security of the public; and it is clear that the duties there specified did not include the then existing duties of the air traffic controllers appli cable to the current normal commercial air traffic. What the majority members of the Board did (and the view of the dissenting minority) is stated in the following concluding sentences of the minority decision:
The. Board's decision is to restrict the provision of safety or security to a very limited portion of the public and we are unable to concur in this. We would have designated all of those air traffic controllers who normally fulfill the operational func tion of ensuring the safe and expeditious movement of aircraft through controlled air space and on the manoeuvring areas of airports.
For the above reasons, and the reasons expressed by Pratte J. and Urie J., I agree with the disposi tion of this section 28 application as proposed by Pratte J. and agreed by Urie J.
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