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T-1723-89
Attorney General of Canada (Applicant) v.
Public Service Staff Relations Board (Respon- dent)
and
Public Service Alliance of Canada (Mise-en- cause)
INDEXED AS: CANADA (ATTORNEY GENERAL) v. PUBLIC SER VICE STAFF RELATIONS BOARD (T.D.)
Trial Division, Teitelbaum J.—Ottawa, September 7 and October 20, 1989.
Judicial review — Prerogative writs — Prohibition — Pre liminary determination by Public Service Staff Relations Board re: jurisdiction to hear reference under s. 99, Public Service Staff Relations Act not subject to review by Trial Division under Federal Court Act, s. 18 — Board having statutory jurisdiction to make preliminary decision as to jurisdiction under P.S.S.R.B. Regulations and Rules of Proce dure, s. 87 — Decision final as creates legal rights — Subject to review under Federal Court Act, s. 28(l) — S. 28(3) depriving Trial Division of review jurisdiction where Court of Appeal having jurisdiction under s. 28.
Federal Court jurisdiction — Trial Division — Application for writ of prohibition to prevent continuation of hearing of reference by Public Service Staff Relations Board, after Board making preliminary determination re: jurisdiction — Board having statutory authority to make such decision under P.S.S.R.B. Regulations and Rules of Procedure — Decision final in that having legal effect — Subject to Federal Court Act, s. 28(l) review — S. 28(3) precluding Trial Division's jurisdiction.
Public service — Jurisdiction — Public Service Staff Rela tions Board authorized under P.S.S.R.B. Regulations and Rules of Procedure, s. 87 to make preliminary determination whether proper matter for PSS RA, s. 99 reference — Board's decision final as created legal rights and obligations — F.C.A., not T.D., having judicial review jurisdiction.
This was a motion for a writ of prohibition to prevent the Public Service Staff Relations Board from further considering a reference filed by the Public Service Alliance of Canada
under section 99 of the Public Service Staff Relations Act. Revenue Canada, Customs and Excise had announced the contracting out of certain jobs to the private sector under its Person Years and Cost Reduction Program. The Union filed a reference alleging that Revenue Canada had violated the col lective agreement and the Work Force Adjustment Policy. The Board made a preliminary finding that it had jurisdiction to hear the reference and informed the parties that it intended to proceed with the hearing. The Attorney General submitted that the Board lacked jurisdiction to hear the reference. The issues were (1) whether this was an appropriate matter for prohibition under Federal Court Act, section 18 and (2) if so, whether such relief should be granted.
Held, the application should be dismissed.
This was not a proper case for prohibition. Federal Court Act, section 18 gives the Trial Division exclusive jurisdiction to issue a writ of prohibition against "any federal board, commis sion or other tribunal". Section 28 gives the Court of Appeal jurisdiction to review and set aside certain decisions of a federal board, commission or other tribunal. Subsection 28(3) provides that where the Court of Appeal has jurisdiction to review a board's decision under section 28, the Trial Division has no jurisdiction. The question is whether the impugned decision was a "decision or order" within the meaning of subsection 28(1). The decision of the Federal Court of Appeal in Danmor Shoe— a leading case on what is a "decision or order" under section 28—precludes applications under section 18 for a writ of prohibition which will interfere with a tribunal's preliminary or interim order or decision, unless the board has express author ity to make such decisions. Once a board decides something that it has "jurisdiction" to decide, that decision has legal effect and the Board's powers are spent. Such a decision is subject to section 28 review. But when a board takes a position with regard to the nature of its powers upon which it intends to act, that "decision" has no legal effect—nothing has been decided. The latter decision is subject to being set aside under neither section 28 nor 18. The Public Service Staff Relations Board had independent statutory authority under section 87 of the P.S.S.R.B. Regulations and Rules of Procedure to decide in an interlocutory or preliminary fashion whether the matter was appropriate for a section 99 reference. The Board's deci sion was final in that it created legal rights or obligations. This was, therefore, a proper case for section 28 review and that, precluded review under section 18.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7. ss. 2, 18, 28, 29. P.S.S.R.B. Regulations and Rules of Procedure, C.R.C., c. 1353, s. 87.
Public Service Staff Relations Act, R.S.C., 1985, c. P-35, ss. 91, 99, 100(3)(c).
CASES JUDICIALLY CONSIDERED
APPLIED:
Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495; (1978), 92 D.L.R. 1; 78 DTC 6258; [1978] C.T.C. 829; Anti-dumping Act (In re) and in re Danmor Shoe Co. Ltd., [1974] 1 F.C. 22; (1974), 1 N.R. 422 (C.A.).
DISTINGUISHED:
Attorney General of Canada v. Lachapelle, [1979] 1 F.C. 377; (1978), 91 D.L.R. (3d) 674 (T.D.); affd sub nom. Baril v. Attorney General of Canada, [1980] 1 F.C. 55; (1979), 106 D.L.R. (3d) 79; 36 N.R. 587 (C.A.).
CONSIDERED:
Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; (1979), 25 N.B.R. (2d) 237; 97 D.L.R. (3d) 417; 26 N.R. 341; 51 A.P.R. 237; 79 CLLC 14,209; Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board et al., [1984] 2 S.C.R. 412; (1984), 14 D.L.R. (4th) 457; 55 N.R. 321; 14 Admin. L.R. 72; 84 CLLC 14,069.
REFERRED TO:
Professional Association of Foreign Service Officers and Treasury Board, 169-2-7, Edward B. Jolliffe, Q.C., Chief Adjudicator, decision dated December 14, 1970; Canadi- an Association of Professional Radio Operators and Treasury Board (1988), 14 PSSRB Decisions 65.
AUTHORS CITED
Finkelman, Jacob and Goldenberg, Shirley B. Collective Bargaining in the Public Service—The Federal Experience in Canada, vol. 2, Montréal: Institute for Research on Public Policy, 1983.
Sgayias, David et al., Federal Court Practice 1988 Toronto: Carswell Company Limited, 1987.
COUNSEL:
Harvey Newman and Mylène Bouzigon for
applicant.
John E. McCormick for respondent.
Dianne Nicholas for mise-en-cause.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Public Service Staff Relations Board for
respondent.
Soloway, Wright, Ottawa, for mise-en-cause.
The following are the reasons for order ren dered in English by
TEITELBAUM J.: This is a motion for a writ of prohibition made by the applicant, the Attorney General of Canada, preventing the respondent, the Public Service Staff Relations Board (PssRB) from considering any further the reference filed by the mise-en-cause, the Public Service Alliance of Canada (PsAc) pursuant to section 99 of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (PSSRA) (PSSRB file No. 169-2-473).
The grounds of the motion, as stated by the applicant are:
... that the Respondent lacks the required jurisdiction to hear the Reference pursuant to section 99 of the Public Service Staff Relations Act, since the matter complained of is not one that can be the subject of a Reference.
The facts leading up to the present application are, as stated by Francine Roach, a solicitor with the law firm of Soloway, Wright, in her affidavit of September 1, 1989:
2. On December 2, 1985, the Assistant Deputy Minister of Revenue Canada, Customs and Excise, Mr. M.A. Gallup addresed a memorandum to officers of his department indicat ing that part of the Department's Person Years and Cost Reduction Program, included the Data Capture Initiative which would result in a Person Years savings of $260,000 in the Fields Operations Branch. He indicated that one of the thrusts of this initiative involved the contracting out of the Data Capture function to the private sector. Contracts to be entered into with private agencies were to require that acceptable arrangements for the placement of data entry operators within those contracting agencies be established. As part of this initiative therefore efforts were directed at placing previously federally employed data capture operators in the private sector as opposed to the public sector.
3. The Public Service Alliance of Canada representatives were provided with further information regarding this Data Capture Initiative. The Data Capture Initiative involved the contracting out between January 5 and July 1, 1987 of 228 person years. By this initiative, some of the workload was being shifted to the private sector as it was estimated that the cost of contracting out the workload of 228 data entry operators was less than the equivalent salary costs.
5. The Public Service Alliance of Canada filed a reference under section 98 of the Public Service Staff Relations Act (Now section 99) alleging that the Respondent had acted in violation of the collective agreement and the provisions of the Work Force Adjustment Policy by adopting a course of action that of contracting out data capture services which has resulted in affected, surplus or laid off employees.
The bargaining agent for employees in the data entry operations of the Ministry is the Public Service Alliance of Canada. It is pursuant to subsections 5.1.2 and 6.2(d) of the Work Force Adjustment Policy that the PSAC brought the above reference.
On April 14, 1989, a hearing was held by the PSSRB and Maurice Cantin, Q.C., the Vice-Chair man of the PSSRB, determined that the Board had jurisdiction to entertain the reference under sec tion 99 of the PSSRA (Tab 2(e) applicant's record). This determination was made necessary as a result of a preliminary objection to jurisdiction made by the employer, the Treasury Board. As a result of Cantin's decision that the PSSRB has the necessary jurisdiction to hear the section 99 reference, a letter dated July 20, 1989 was sent to counsel for the Treasury Board and to counsel for the PSAC informing them that the hearing pursuant to the section 99 of the PSSRA reference would continue (Tab 2(f), applicant's record).
As the PSSRB intends to continue with the hear ing, the applicant brings the present motion requesting a writ of prohibition.
The Issue
The issue to be determined was satisfactorily stated by counsel for the applicant:
It is submitted that this motion raises two broad issues .... The first one ... , is whether this is an appropriate matter for a prohibition pursuant to section 18 of the Federal Court Act and, assuming that it is, ought prohibition issue? [Tran- script, page 4, lines 2 to 7.]
Although the respondent, PSSRB was represent ed by counsel at the hearing before me, counsel for the Board did not make any representations.
Applicant's Submission
The applicant submits that the jurisdictional prerequisites required by the present section 99 reference of the PSSRA are not present and thus, the PSSRB should be ordered not to proceed with the reference. Subsection 99(1) of the PSSRA states, (subsections 99(2) and (3) are not relevant):
99. (1) Where the employer and a bargaining agent have executed a collective agreement or are bound by an arbitral
award and the employer or the bargaining agent seeks to enforce an obligation that is alleged to arise out of the agree ment or award, and the obligation, if any, is not one the enforcement of which may be the subjet of a grievance of an employee in the bargaining unit to which the agreement or award applies, either the employer or the bargaining agent may, in the prescribed manner, refer the matter to the Board.
With regard to the issue of whether it is proper to consider issuing a writ of prohibition against the PSSRB from proceeding with an application after a preliminary decision by the Board that it had jurisdiction, the applicant bases its entire submis sion on Marceau J.'s reasons in Attorney General of Canada v. Lachapelle, [the Baril case] [1979] 1 F.C. 377; (1978), 91 D.L.R. (3d) 674 (T.D.) and the Federal Court of Appeal's decision of this case reported [sub nom. Baril v. Attorney General of Canada] at [1980] 1 F.C. 55; (1979), 106 D.L.R. (3d) 79; 36 N.R. 587. It is the applicant's submis sion that the present case is very similar to the case before Marceau J. where he granted a writ of prohibition notwithstanding the fact that judicial review of the Adjudicator's final decision under section 28 of the Federal Court Act f R.S.C., 1985, c. F-7] would be available. The reasons given by Marceau J. are, as found on page 379:
It will be seen, however, that the facts in question are straight forward and not in dispute, that the particulars of the problem of jurisdiction to be resolved are already clearly established, that the position taken by respondent adjudicator could have an immediate and definite impact on the relations of the parties, and that an immediate clarification of the situation would certainly be useful.
With regard to the second issue, should a writ of prohibition issue because of a lack of jurisdiction, the applicant submits that the Adjudicator, Cantin, made an error in law in finding that because the PSAC had a clear interest in the observance of the alleged obligations under para graphs 5.1.2 and 6.2(d) of the Work Force Adjust ment Policy that the PSAC therefore had the right to make an application pursuant to section 99 of the PSSRA. The applicant relies on the opinion of Jacob Finkelman as found in Collective Bargain ing in the Public Service, Volume Two, Institute for Research on Public Policy at pages 563 and 564 for the proposition that a writ of prohibition should issue for lack of jurisdiction. The applicant also relies on the decision found in Professional Association of Foreign Service Officers and Trea-
sury Board, file 169-2-7 heard by Edward B. Jolliffe, Q.C., Chief Adjudicator, on December 14, 1970 and in a more recent decision of Mr. J. Galipeault a Board member of the PSSRB dated July 19, 1988 in Canadian Association of Profes sional Radio Operators and Treasury Board (1988), 14 PSSRB Decisions 65.
Submission of the Mise-en-cause
The mise-en-cause makes four submissions:
a) That the present application for a Writ of Prohibition is a re-hearing of the adjudicator's decision.
b) That the adjudicator's decision was upon a question of fact or mixed fact and law and is thus not reviewable by the Court.
c) The Board's decision is one within its jurisdiction.
d) That any allegation of lack of jurisdiction is premature, that the proper remedy for such an allegation is not under section 18 but under section 28 of the Federal Court Act after the adjudicator's decision on the merits.
The submissions of the mise-en-cause, PSAC, rely on the recent jurisprudence following Canadi- an Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; (1979), 25 N.B.R. (2d) 237; 97 D.L.R. (3d) 417; 26 N.R. 341; 51 A.P.R. 237; 79 CLLC' 14,209 (cuPE) which call for greater judicial def erence to the expertise of administrative tribunals than was shown in the cases relied on by the applicant.
In reply, the applicant submits that the trend towards judicial deference begun under COPE has been cut short by the 1984 Supreme Court deci sion in Syndicat des employés de production du' Québec et de l'Acadie v. Canada Labour Relations Board et al., [1984] 2 S.C.R. 412; (1984), 14 D.L.R. (4th) 457; 55 N.R. 321; 14 Admin. L.R. 72; 84 CLLC 14,069 which revived the traditional distinction between jurisdictional and non-jurisdic tional error.
I am satisfied that notwithstanding the 1978 and 1979 decisions in the Baril case (supra), this is not a proper case for prohibition to issue pursu ant to section 18 of the Federal Court Act. The
decision of Marceau J. and the decision of the Federal Court of Appeal in the Baril case can be distinguished on the grounds that counsel for the respondent, in the Baril case, admitted that that case was a proper case for prohibition, unlike the present case where the PSAC submits the opposite argument.
The relevant Federal Court Act provisions in determining whether a writ of prohibition may issue pursuant to section 18 are sections 2, 28, 29 and 18 (Sgayias, Kinnear, Rennie and Saunders, Federal Court Practice 1988, Carswell 1987). Sgayias et al note, on page 82, that when a review under section 18 is sought, the following points must be considered:
1. Is review being sought against a "federal board, commission or other tribunal"? This expression is defined in section 2 of the Act. It is to be noted that the definition does not include the Crown.
2. Is review precluded by section 29 of the Act? That section excludes judicial review by either the Trial Division under section 18 or by the Court of Appeal under section 28 to the extent that the impugned decision or order can be appealed to one of the bodies referred to in section 29.
3. Is review precluded by section 28 of the Act? Section 28(3) of the Act excludes the Trial Division's review jurisdiction where the Court of Appeal has jurisdiction under section 28 to review and set aside a federal board's decision or order. This exception to the Trial Division's supervisory jurisdiction has spawned much litigation, as both the Trial Division and the Court of Appeal have grappled with the issue of what decisions or orders are reviewable under section 28.
The PSSRA does not contain any express right to appeal to the Federal Court. It appears that there is nothing in the PSSRA to suggest that the proper route for review would be an appeal such as would attract the operation of section 29 of the Federal Court Act. Thus in the present case, section 29 does not preclude issuance of a writ of prohibition under section 18 of the Federal Court Act.
It would equally appear that section 2 does not preclude the issuance of a writ of prohibition in this case. Section 18 allows issuance of such a writ against "any federal board, commission or other tribunal". The PSSRB is a board within the mean ing of section 18 as defined in section 2 given that
it derives its jurisdiction and powers from an Act of Parliament. Thus, all that remains to prevent the operation of section 18 is the preclusion under subsection 28(3).
A leading case on whether a section 18 review is precluded by section 28 is Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495; (1978), 92 D.L.R. 1; 78 DTC 6258; [1978] C.T.C. 829. In that case Dickson J. (as he then was) established a four-fold test for the application of subsection 28(1), which if proven precludes the availability of a section 18 review; he states at pages 499-500 S.C.R.:
The convoluted language of section 28 of the Federal Court Act has presented many difficulties, as the cases attest, but it would seem clear that jurisdiction of the Federal Court of Appeal under that section depends upon an affirmative answer to each of four questions:
(1) Is that which is under attack a "decision or order" in the relevant sense?
(2) If so does it fit outside the excluded class, i.e. is it "other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis"?
(3) Was the decision or order made in the course of "proceedings"?
(4) Was the person or body whose decision or order is chal lenged a "federal board, commission or other tribunal" as broadly defined in s. 2 of the Federal Court Act?
In the present case, there is a decision of a judicial or quasi-judicial nature involved rather than an administrative decision. The decision was taken in the course of "proceedings" and the body whose decision is challenged, the respondent Board, is a federal board coming within the mean ing of paragraph 2(g).
All that remains to satisfy the test in Coopers and Lybrand (supra) is to demonstrate that the impugned decision is a "decision or order" in the relevant sense.
A leading case on the meaning of "decision or order" under section 28 is Anti-dumping Act (In re) and in re Danmor Shoe Co. Ltd., [1974] 1 F.C. 22; (1974), 1 N.R. 422 (C.A.), which was referred to by Marceau J. in the Baril case. In the Baril case the applicant admitted that no review under section 28 was available because the "impugned
decision is only interlocutory". This is not admit ted in the case before me.
Subsections 28(4) and (5) of the Federal Court Act reinforce the view that an application under section 18 for a writ of prohibition interfering with a tribunal's interim order or decision is excluded by subsection 28(3). A plain reading of the Act suggests the following:
i) where the Federal Court of Appeal has jurisdiction to review a decision or order, the Trial Division has none;
ii) a tribunal to which section 28(1) applied may at any stage refer any question of law or jurisdiction, or practice and procedure, to the Federal Court of Appeal for hearing and determination; and
iii) where the tribunal does so, the Court of Appeal shall hear the matter without delay and in a summary fashion.
When reading section 28 as a whole, it becomes clear that generally the matters referred to in subsection 28(4) should only be infrequently con sidered by boards and tribunals and where it is necessary to do so, a summary hearing of the matter will quickly be given by the Court of Appeal. This was ostensibly done for the purpose of making the federal administrative law process more timely and affordable. It would be obviously counterproductive to suggest that in addition to the remedy in subsection 28(4), an objection to an interim or preliminary decision brought by a dis gruntled party before the board could constitute grounds for a section 18 application.
Far from allowing a section 18 review of inter locutory decisions, the decision in Danmor Shoe (supra) forcefully denies such a view. Danmor Shoe (supra) does preclude a decision or order of a preliminary or interim nature from being reviewed under section 18 (unless—and this is an important caveat—the board has express authority for making such a decision), but it does not follow from this that review from such decisions therefore lies under section 18. What Jackett C.J. actually said [at page 29 F.C.] in Danmor Shoe (supra), was that such decisions were not really decisions at all:
There is a clear difference between a "decision" by the Board of something that it has "jurisdiction or powers" to decide and a declaration by the Board as to the nature of the powers to be exercised by it when it comes to make the decision that it has "jurisdiction or powers" to make. Once the Board decides something in a particular case that it has "jurisdiction or powers" to decide, that decision has legal effect and the Board's powers in regard to that question are spent. When, however, the Board takes a position with regard to the nature of its powers upon which it intends to act, that "decision" has no legal effect. In such a case, as a matter of law, nothing has been decided....
My conclusion, therefore, is that the Board's declaration that it did not have jurisdiction to review the validity of the "pre- scriptions" had no legal effect so long as that declaration was made prior to and therefore apart from, the decisions disposing of the applicants' appeals. It follows that the declaration is not a "decision" that this Court has jurisdiction to set aside under section 28(1) of the Federal Court Act.
It would also follow that the Trial Division would have no jurisdiction to set aside such a "decision" under section 18. The crucial question therefore becomes: "Does the Board have independent statutory authority under its enabling legislation to make an interlocutory decision on jurisdiction as it did?" If so, appeal will lie to the Federal Court of Appeal under subsection 28(1). If not, the Board must decide in its discretion whether to refer the question to the Federal Court of Appeal under subsection 28(4) or to proceed instead with the case on its merits and grapple with the jurisdictional or preliminary matter as best it can, as part of its final decision, subject always to the risk of being corrected later on by the Court of Appeal upon an application for review under subsection 28(1).
A Board should not proceed to decide jurisdic tional matters prior to and therefore apart from its actual disposition of the reference unless it has an express statutory authority for doing so. If the Board does not have such statutory authority but decides the matter itself, in a preliminary manner, its decision on that matter is of no force; and by failing in this manner to deliver. a decision review- able under section 28 it does not by that failure create authority for review under section 18. I am satisfied that a section 18 review is precluded in cases where the federal board, tribunal or commis sion makes a preliminary or interim decision or
order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis. A sec tion 18 review would lie with respect to decisions of an administrative nature and section 28 review will lie with respect to preliminary decisions which the Board has express authority to make and is a decision from which legal rights or obligations follow.
The determinative question to the present issue is whether the respondent Board had express au thority to determine its own jurisdiction. The rele vant provisions of the Board's enabling jurisdiction are found in paragraph 100(3)(c) of the PSSRA and in section 87 of the P.S.S.R.B. Regulations and Rules of Procedure [C.R.C., c. 1353]. These provisions read as follows:
1o0... .
(3) The Board may make regulations in relation to the adjudication of grievances, including regulations respecting
(c) the procedure to be followed by adjudicators;
87. (1) Subject to subsection (2) but notwithstanding any other provision of these Regulations, the Board may dismiss a grievance on the ground that it is not a grievance that may be referred to adjudication.
(2) Before dismissing a grievance pursuant to subsection (1), in order to determine whether or not a grievance may be referred to adjudication, the Board may
(a) invite the parties to submit written argument within a time and a manner specified by it; or
(b) hold a preliminary hearing
(4) An aggrieved employee may, within 25 days after he has been served with a decision made pursuant to subsection (1), file with the registrar a request that the Board review its decision.
(5) A request for review filed pursuant to subsection (4) shall contain a concise statement of the facts and reasons upon which the aggrieved employee relies.
(6) Upon the filing of a request for review, the Board may
(a) revoke its decision and direct that the grievance be proceeded with in the manner set forth in sections 79 to 86;
(b) serve the aggrieved employee and any other person who, in the opinion of the Board, may be affected by the grievance with a notice of hearing to show cause why the grievance should be heard; or
(c) confirm its decision dismissing the grievance.
The regulations under section 87 apply to the hearing of grievances under section 91 of the Act, and, as well, to the hearing of section 99 refer
ences. Subsection 99(3) states: 99.. ..
(3) The Board shall hear and determine any matter referred to it pursuant to subsection (1) as though the matter were a grievance, and subsection 96(2) and sections 97 and 98 apply to the hearing and determination of that matter.
From the above, the respondent Board has the regulatory and statutory authority to make prelim inary decisions. In other words, it is authorized to decide in a preliminary fashion whether the matter before it is a proper matter for a section 99 reference.
Given the PSSRB'S authority under section 87 of its regulations (paragraph 87(2)(b)), I am satis fied that this case is a proper one for review under section 28 of the Federal Court Act. I believe the Board's decision is a final decision in the sense that it creates legal rights or obligations. I believe that review, in the circumstances of this case, does not lie under section 18 of the Federal Court Act.
The application is refused. No award as to costs is made.
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