T-1839-87
Public Service Alliance of Canada (Applicant)
v.
Ian Deans as Chairman of the Public Service Staff
Relations Board and The Queen in right of
Canada as represented by Treasury Board
(Respondents)
INDEXED AS: P.S.A.0 v. CANADA (PUBLIC SERVICE STAFF
RELATIONS BOARD)
Trial Division, Reed J.—Ottawa, February 24 and
26, 1988.
Public service — Labour relations — Clause proposed for
inclusion in collective agreement providing employees in bar
gaining unit not to be laid off due to shortage of work for
duration of contract — Not subject to negotiation before
Conciliation Board — Clause dealing with specific individuals
(members of bargaining unit), not simply number of employees
— Relating to standards or procedures governing lay-off, and
outside Board's jurisdiction pursuant to Public Service Staff
Relations Act, s. 86(3) — Public Service Employment Act, s.
29 giving deputy head authority to determine specific
individuals to be laid off and numbers on lay-off status — S.
29 constituting existing term or condition of employment
established by Public Service Staff Relations Act, and not
subject to variation by collective agreement pursuant to Public
Service Staff Relations Act, s. 56(2).
Judicial review — Prerogative writs — Certiorari — Chair
man of Public Service Staff Relations Board refusing to
include in terms of reference of Conciliation Board clause
prohibiting employer from laying off members of bargaining
unit — Determination not mere statement, but decision of
administrative nature affecting members of bargaining unit —
Subject to rules of fairness though not final decision.
This was an application to review and set aside a refusal of
the Chairman of the Public Service Staff Relations Board to
include a clause, proposed by the Union for inclusion in the
collective agreement, in the terms of reference being sent to a
Conciliation Board. The clause provided that the employer
would not lay off employees within the bargaining unit due to a
shortage of work for the duration of the collective agreement.
Subsection 86(3) of the Public Service Staff Relations Act
provides that a conciliation board may not deal with recom
mendations concerning "the standards, procedures or processes
governing the ... lay-off ... of employees". Subsection 56(2)
provides that a collective agreement may not alter any existing
term or condition of employment established in the Public
Service Employment Act. Section 29 of the latter Act gives a
deputy head the power to lay off an employee when there is a
shortage of work. The Chairman held that the clause related to
standards or procedures governing lay-off. The applicant sub
mitted that it dealt with the number of employees to be
employed and sought an agreement that those numbers could
not be reduced by lay-off. It argued that the overall scheme of
the Acts was that aspects of employment governed by Treasury
Board (i.e. number of employees), are subject to negotiation,
but that aspects of employment under the control of the Public
Service Commission (i.e. appointment on the basis of merit) is
not. It argued that the clause in issue seeks to limit the
employer's right to decrease the numbers of employees, but did
not address the question of which specific employees should be
chosen for lay-off i.e. it did not address procedures, standards
or processes used for lay-offs. The respondents argued that the
words "all employees within the bargaining unit" dealt specifi
cally with who may and may not be laid off. They also argued
that the Chairman's decision was not subject to being quashed
by certiorari as it was merely a "statement", which did not
affect "the rights, interests, property, privileges or liberty of
any person" and therefore could not be reviewed for failure to
comply with the rules of fairness. However it could be reviewed
for an error of law. The issue was whether the subject-matter of
the clause was subject to negotiation before the Conciliation
Board, or whether the Chairman erred in law.
Held, the application should be dismissed.
The clause addressed itself to specific individuals, i.e. all
employees within the bargaining unit. Section 29 of the Public
Service Employment Act gives the deputy head the authority to
determine not only which specific individuals are to be laid off,
but also to determine the numbers which should be put on
lay-off status. Section 29 constitutes a term or condition of
employment established pursuant to the Public Service
Employment Act. The Chairman did not err in law.
The Chairman's determination was clearly a decision,
although it was of an administrative rather than a judicial or
quasi-judicial nature. It affected the members of the bargaining
unit. A decision does not have to be final to be governed by the
rules of natural justice.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
Financial Administration Act, R.S.C. 1970, c. F-10, ss.
5(1)(e), 7(1),(2),(6).
Public Service Employment Act, R.S.C. 1970, c. P-32, ss.
29, 31.
Public Service Employment Regulations, C.R.C., c.
1337, ss. 33 (as am. by SOR/81-7l6, s. 3), 34 (as am.
by SOR/79-293, s. 1), 36, 37 (as am. idem, s. 4).
Public Service Staff Relations Act, R.S.C. 1970, c. P-35,
ss. 56(2), 77, 86.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Martineau v. Matsqui Institution Disciplinary Board
(No. 2), [1980] 1 S.C.R. 602; (1979), 106 D.L.R. (3d)
385.
REFERRED TO:
Re Abel et al. and Director, Penetanguishene Mental
Health Centre (1979), 97 D.L.R. (3d) 304 (Ont. Div.
Ct.).
COUNSEL:
Andrew J. Raven for applicant.
Warren J. Newman for respondent The Queen
in right of Canada as represented by the
Treasury Board.
M. Jacqueline Morgan for respondent Ian
Deans as Chairman of the Public Service
Staff Relations Board.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
REED J.: This application deals with a refusal by
the respondent Ian Deans, acting in his capacity as
Chairman of the Public Service Staff Relations
Board, to include a specific clause in the terms of
reference being sent to a Conciliation Board. The
Board has been established pursuant to section 77
of the Public Service Staff Relations Act, R.S.C.
1970, c. P-35. The clause is proposed by the
applicant, the Public Service Alliance, as a possi
ble clause for inclusion in a collective agreement,
which agreement is presently the subject of
negotiations with the respondents. The agreement
covers the Education Group (ED) bargaining unit.
The clause in question reads:
The Employer undertakes and agrees that, for the purpose of
section 29 of the Public Service Employment Act, services of all
employees within the bargaining unit shall be required for the
duration of this collective agreement and for any period of
extension established pursuant to section 51 of the Public
Service Staff Relations Act.
This is an amended version of an earlier proposed
clause which had read:
There shall be no lay-off of employees during the term of this
collective agreement.
It should be noted that the clause (in either
version) only purports to address lay-offs which
are precipitated by a shortage of work (section 29
of the Public Service Employment Act [R.S.C.
1970, c. P-32]). The clauses do not purport to
interfere with the right to release individuals for
incompetence or incapacity (section 31 of the
Act). The Public Service Alliance wishes to put on
the bargaining table the proposition that the
employer (the Crown as represented by Treasury
Board) should agree that it will not lay off
individuals just because there is no work for them
to do. The merits of that proposal are not in issue
in this application; the issue is whether or not that
proposition can be put on the table as an item for
negotiation before the Conciliation Board.
Mr. Deans refused to include the clause in the
terms of reference. He took the position that the
clause related to "the standards, procedures or
processes governing the . lay-off ... of
employees", and as such, its referral to a concilia
tion board was prohibited by subsection 86(3) of
the Public Service Staff Relations Act:
86....
(3) No report of a conciliation board shall contain any
recommendation concerning the standards, procedures or pro
cesses governing the appointment, appraisal, promotion, demo
tion, transfer, lay-off or release of employees.
Counsel for the applicant argues that Mr.
Deans' decision is based on an error of law; that
the clause, which is proposed for inclusion in the
collective agreement, deals with the number of
employees to be employed by the employer and
seeks an agreement that those numbers cannot be
reduced by lay-off. It is argued that the clause
does not address itself to the procedures, standards
or processes to be used (in order to choose as
among employees which of them will, in fact, be
laid off once a decision that a lay-off of some is
necessary).
It was argued by counsel for the respondent,
Treasury Board, that the Chairman's decision is
not subject to judicial review and to being quashed
by a writ of certiorari. It was argued that the
Chairman's conclusion is not a decision, but,
merely a "statement"; that it does not affect "the
rights, interests, property, privileges or liberty of
any person" as referred to in Martineau v. Mat-
squi Institution Disciplinary Board (No. 2),
[1980] 1 S.C.R. 602, at page 628; (1979), 106
D.L.R. (3d) 385, at page 410 and therefore it is
not subject to review for failure to comply with the
rules of fairness. I do not find this argument
convincing. It is a mere playing with words to say
that the Chairman's determination of what can
and cannot be referred to the Conciliation Board is
a "statement" rather than a "decision". A decision
is clearly involved, albeit one of an administrative
rather than a judicial or quasi-judicial nature. It
affects the interests of the members of the bar
gaining unit covered by the collective agreement.
If the Conciliation Board is precluded from deal
ing with the subject-matter to which the clause is
addressed (counsel for the applicant characterizes
the subject as "job security") there is a very
definite prejudicial effect to the interests of the
members of the bargaining unit. A decision does
not have to be final to be governed by the rules of
natural justice; see: Re Abel et al. and Director,
Penetanguishene Mental Health Centre (1979), 97
D.L.R. (3d) 304 (Ont. Div. Ct.).
Counsel for the respondent Treasury Board,
argues: that the Chairman of the Board should be
accorded broad discretion with respect to the ques
tion under consideration; that his decision should
not be interfered with lightly; that the challenge to
his decision is not based on a lack of procedural
fairness (as for example, happened in Martineau v.
Matsqui (No. 2)). Indeed, the Chairman in this
case, held a hearing before deciding the issue in
question. He gave both parties an opportunity to
make full and complete submissions. Nevertheless,
if his decision should be based on an error of law,
as counsel for the applicant contends, then it is
reviewable pursuant to section 18 of the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10. It
would be passing strange if decisions, such as that
in issue, could be reviewed for lack of procedural
fairness but could not be reviewed if they were
grounded in an error of law.
To turn then to the substantive argument:
whether the decision that the proposed clause
should not be referred to the Conciliation Board is
founded on an error of law (i.e. a misinterpretation
of either the import of that clause or of the
relevant statutory provisions). One of the relevant
statutory provisions is subsection 56(2) of the
Public Service Staff Relations Act:
56....
(2) No collective agreement shall provide, directly or in
directly, for the alteration or elimination of any existing term
or condition of employment or the establishment of any new
term or condition of employment,
(a) the alteration or elimination of which or the establish
ment of which, as the case may be, would require or have the
effect of requiring the enactment or amendment of any
legislation by Parliament, except for the purpose of appro
priating moneys required for its implementation, or
(b) that has been or may be, as the case may be, established
pursuant to any Act specified in Schedule III.
One of the Acts listed in Schedule III is the Public
Service Employment Act.
Section 86 of the Public Service Staff Relations
Act provides:
86. (1) A conciliation board shall, within fourteen days after
the receipt by it of the statement referred to in section 83 or
within such longer period as may be agreed upon by the parties
or determined by the Chairman, report its findings and recom
mendations to the Chairman.
(2) Subsection 56(2) applies, mutatis mutandis, in relation
to a recommendation in a report of a conciliation board.
(3) No report of a conciliation board shall contain any
recommendation concerning the standards, procedures or pro
cesses governing the appointment, appraisal, promotion, demo
tion, transfer, lay-off or release of employees.
Thus, while a conciliation board may not deal in
its report with recommendations concerning
"standards, procedures or processes governing ...
lay-off" (subsection 86(3)) this is not exhaustive of
the limitations on its jurisdiction. It also may not
deal with matters which cannot be included in a
collective agreement by virtue of subsection 56(2)
of the Public Service Staff Relations Act. As
noted above, one such limitation is:
56... .
(2) ... the alteration or elimination of any existing term or
condition of employment or the establishment of any new term
or condition of employment,
(b) that has been or may be ... established pursuant to the
[Public Service Employment Act].
Section 29 of the Public Service Employment Act
provides:
29. (1) Where the services of an employee are no longer
required because of lack of work or because of the discontinu
ance of a function, the deputy head, in accordance with regula
tions of the Commission, may lay off the employee.
As I understand counsel for the applicant's
argument, it is that the scope of section 29 and its
relation to subsections 56(2) and 86(2) of the
Public Service Staff Relations Act must be
assessed in the context of the overall scheme of
these Acts. In summary, his argument is that when
it was first decided to allow public servants to be
covered by collective agreements, a determination
had to be made as to what aspects of employment
would be negotiable. He states that the decision
was made to allow those aspects of employment,
which are under the control of Treasury Board, to
be negotiable for the purposes of collective agree
ments but to preclude from those negotiations,
aspects of employment which are under the control
of the Public Service Commission (e.g. appoint
ment on the basis of the merit principle). It is
argued the manpower requirements of the public
service (numbers of employees) are determined by
Treasury Board' although the selection of specific
' The relevant sections of the Financial Administration Act,
R.S.C. 1970, c. F-10, are:
5. (1) The Treasury Board may act for the Queen's Privy
Council for Canada on all matters relating to
(Continued on next page)
individuals to fill positions in the public service is
governed by the Public Service Commission.
Accordingly, it is argued, matters which fall into
the first category are proper subject-matter for
collective agreements and for referral to concilia
tion boards; those which fall within the second are
not.
Counsel for the applicant argues that the clause
which is in issue in this case, which it is sought to
have referred to the Conciliation Board relates to
the former of the two above-mentioned categories,
not the latter. It is argued that that clause seeks to
limit the employer's right to decrease (by lay-off)
the numbers of employees, but that it does not seek
to address the question of which specific individu
als should be chosen for lay-off, if a lay-off situa
tion exists. It is argued that the clause does not
seek to address itself to the standards and proce-
(Continued from previous page)
(e) personnel management in the public service, including
the determination of terms and conditions of employment
of persons employed therein; ...
7. (1) Subject to the provisions of any enactment respect
ing the powers and functions of a separate employer but
notwithstanding any other provision contained in any enact
ment, the Treasury Board may, in the exercise of its respon
sibilities in relation to personnel management including its
responsibilities in relation to employer and employee rela
tions in the public service, and without limiting the generality
of sections 5 and 6,
(a) determine the manpower requirements of the public
service and provide for the allocation and effective utiliza
tion of manpower resources within the public service;
(b) determine requirements for the training and develop
ment of personnel in the public service and fix the terms on
which such training and development may be carried out;
(c) provide for the classification of positions and
employees in the public service;
(d) determine and regulate the pay to which persons
employed in the public service are entitled for services
rendered, the hours of work and leave of such persons and
any matters related thereto;
(e) provide for the awards that may be made to persons
employed in the public service for outstanding perform
ance of their duties, for other meritorious achievement in
relation to those duties and for inventions or practical
suggestions for improvements;
(/) establish standards of discipline in the public service
and prescribe the financial and other penalties, including
suspension and discharge, that may be applied for
breaches of discipline or misconduct, and the circum
stances and manner in which and the authority by which
or whom those penalties may be applied or may be varied
or rescinded in whole or in part;
(Continued on next page)
dures used for lay-offs. (Obviously, if the appli
cant's proposed clause were accepted for inclusion
in a collective agreement, this second aspect would
never be an issue since there would be no lay-offs
to which the standards and procedures could be
applied.)
I did not understand counsel for the respondent,
Treasury Board, to dissent from counsel for the
applicant's position with respect to the subject-
matters which are negotiable and those which are
not. Rather, I understood his argument to be that
the particular clause in issue does not restrict itself
to determining the numbers of employees which
are to be employed. Rather, he argues that the
clause deals specifically with who may and may
not (as individuals) be laid off, a matter governed
by the Public Service Employment Act, R.S.C.
(Continued from previous page)
(g) establish and provide for the application of standards
governing physical working conditions of, and for the
health and safety of, persons employed in the public
service; [repealed March 31, 1986 by S.C. 1984, c. 39,
s.41]
(h) determine and regulate the payments that may be
made to persons employed in the public service by way of
reimbursement for travelling or other expenses and by way
of allowances in respect of expenses and conditions arising
out of their employment; and
(i) provide for such other matters, including terms and
conditions of employment not otherwise specifically pro
vided for in this subsection, as the Treasury Board consid
ers necessary for effective personnel management in the
public service.
(2) The Treasury Board may authorize the deputy head of
a department or the chief executive officer of any portion of
the public service to exercise and perform, in such manner
and subject to such terms and conditions as the Treasury
Board directs, any of the powers and functions of the Trea
sury Board in relation to personnel management in the public
service and may, from time to time as it sees fit, revise or
rescind and reinstate the authority so granted.
(6) The powers and functions of the Treasury Board in
relation to any of the matters specified in subsection (1) do
not extend to any such matter that is expressly determined,
fixed, provided for, regulated or established by any Act
otherwsie than by the conferring of powers or functions in
relation thereto on any authority or person specified in such
Act, and do not include or extend to any power or function
specifically conferred on, or any process of personnel selec
tion required or authorized to be employed by, The Public
Service Commission by or under the authority of the Public
Service Employment Act.
1970, c. P-32, and Regulations. [Public Service
Employment Regulations, C.R.C., c. 1337, ss. 33
(as am. by SOR/81-716, s. 3), 34 (as am. by
SOR/79-293, s. 1), 36, 37 (as am. idem, s. 4)]. 2
I share this interpretation of the clause. It says,
in part: "all employees within the bargaining unit
shall be required for the duration of this collective
agreement". To me, this addresses itself to specific
2 33. (1) No employee shall be laid off by a deputy head,
pursuant to subsection 29(1) of the Act, until the following
provisions of this section have been complied with, namely:
(a) the deputy head shall consider whether the performance
of the employee has been satisfactory and, if so, whether he
would be prepared to have the employee on his staff in
another appropriate position if such a position were available;
and
(b) where one or more employees are to be laid off and there
are other employees, in the same part of the organization,
employed in similar positions of the same occupational
nature and level, the deputy head shall, having regard to any
special qualifications necessary to perform the continuing
functions of that part of the organization, have a list pre
pared of the employees who are employed in similar positions
of the same occupational nature and level in that part of the
organization who do not possess those special qualifications,
and place them thereon in order of merit and such employees
shall be laid off in order beginning with the employee lowest
on the list.
(2) This section and sections 34, 35, 36, 37 and 38 do not
apply where an employee has been appointed for a specified
period.
34. Where a deputy head decides to lay off an employee, he
shall, after complying with section 33,
(a) advise the Commission in writing
(i) on the matters mentioned in section 33,
(ii) of the day as of which the employee is to be laid off,
and
(iii) whether he considers that the employee is suitable for
appointment under the Act; and
(b) advise the employee in writing
(i) of the day as of which he is to be laid off, and
(ii) of the opinion of the Commission as to whether the
employee is suitable for appointment under the Act.
36. A lay-off is entitled, for a period of 12 months from the
day he was laid off, to enter any competition for which he
would have been eligible had be not been laid off.
37. Subject to section 38, a lay-off is entitled, for a period of
one year from the day on which he was laid off, to consider
ation for appointment in accordance with subsection 29(3) of
the Act.
individuals; it does not purport to address merely
the "numbers of employees" or the "manpower
requirements" of the public service which are
under the control of Treasury Board. More par
ticularly, I read section 29 of the Public Service
Employment Act as giving the deputy head au
thority to determine not only which specific
individuals are to be laid off, but also, to determine
the numbers which should be put on lay-off status.
I am not convinced that the opening words of
section 29 are a condition precedent under the
jurisdiction of Treasury Board, as counsel for the
applicant contends. Rather, it seems to me that
section 29 constitutes a specific conferral of au
thority on the deputy head to determine the num
bers to be laid off and the specific persons to be
visited with this status. As a result, I think the
provision in section 29 constitutes "a term or
condition of employment" established pursuant to
the Public Service Employment Act, referred to in
paragraph 56(2)(b) of the Public Service Staff
Relations Act. I do not think Mr. Deans made an
error of law when he refused to refer the clause to
the Conciliation Board.
For the reasons given, the plaintiff's application
is dismissed.
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.