Federal Court of Appeal Decisions

Date: 20051107

Docket: A-636-04

Citation: 2005 FCA 366

CORAM:        NOËL J.A.

SEXTON J.A.

MALONE J.A.

BETWEEN:

                                       PUBLIC SERVICE ALLIANCE OF CANADA

                                                                                                                                            Applicant

                                                                           and

         HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY

CANADIAN FOOD INSPECTION AGENCY

                                                                                                                                        Respondent

                                        Heard at Ottawa, Ontario, on November 1, 2005.

                              Judgment delivered at Ottawa, Ontario, on November 7, 2005.

REASONS FOR JUDGMENT BY:                                                                                    NOËL J.A.

CONCURRED IN BY:                                                                                                  SEXTON J.A.

                                                                                                                                    MALONE J.A.

Date: 20051107

Docket: A-636-04

Citation: 2005 FCA 366

CORAM:        NOËL J.A.

SEXTON J.A.

MALONE J.A.

BETWEEN:

                                       PUBLIC SERVICE ALLIANCE OF CANADA

                                                                                                                                            Applicant

                                                                           and

         HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY

CANADIAN FOOD INSPECTION AGENCY

                                                                                                                                        Respondent

                                                    REASONS FOR JUDGMENT

NOËL J.A.

[1]                 This is a judicial review application directed against a decision by the Public Service Staff Relations Board ("PSSRB") dated October 29, 2004, disposing of a reference filed by the Public Service Alliance of Canada ("PSAC" or "applicant") pursuant to Section 99 of the Public Service Staff Relations Act ("PSSRA").

Background

[2]                In disposing of this reference, the PSSRB denied the applicant's submission that the Canadian Food Inspection Agency ("CFIA") breached its obligations under the workforce adjustment provisions of the Employment Transition Policy ("ETP"), which forms part of the PSAC-CFIA Collective Agreement (as Appendix B) and provides that the CFIA must consult with the PSAC where work within the CFIA is eliminated or transferred.

[3]                 In the written submissions filed in support of the application, the applicant reiterates two arguments: that the PSSRB erred in concluding that the provisions of the ETP were not triggered by the decision to transfer the CFIA employees to the Canada Border Services Agency ("CBSA") by Order-in-Council dated December 12, 2003; and that the Transfer of Portions of the Canadian Food Inspection Agency Regulations ("Transfer Regulations") are intra vires.

Facts

[4]                The parties proceeded before the PSSRB on the basis of an agreed statement of facts,

which is reproduced in its entirety at paragraph 3 of the PSSRB decision and which needs not be repeated. It is sufficient for present purposes to outline the following summary.

[5]                 Following the creation of the CBSA as part of the newly created Public Safety and

Emergency Preparedness Department, various government services were reorganized (PSSRB Decision, paragraph 9, page 21). In particular, specified functions carried out by about 90 employees would no longer be performed by the CFIA, a "separate employer", but would be transferred to the CBSA, a portion of the Public Service for which the Treasury Board is the "employer".

[6]                 Effective December 12, 2003, by Order-in-Council 2003-2065, SI/2003-217 and

pursuant to the Public Service Rearrangement and Transfer of Duties Act ("PSRTDA"), certain portions of the Operations Branch of the CFIA were transferred to the CBSA. Also effected were the Transfer Regulations, under the authority of paragraph 36(1)(b) of the PSEA, which deemed the transfer of affected CFIA employees to the CBSA to be subject to the block transfer provisions set out in subsections 37.3(1) and (2) of the PSEA.

[7]                 On December 12, 2003, affected CFIA employees were sent an email from the President

of the CFIA notifying them of the creation of the CBSA, the consolidation of border defence services, and the immediate transfer of approximately 90 positions. As a result, some 90 indeterminate and term CFIA employees ceased to be employees of the CFIA and became employees of Treasury Board.

[8]                 While some of the affected CFIA employees filed grievances under the ETP, PSAC filed

a reference pursuant to Section 99 of the PSSRA on December 23, 2003, alleging that CFIA "has failed to observe or carry out certain obligations contained in the [ETP], which is found at Appendix B of the collective agreement entered into between the parties on July 6, 2001". PSAC also contended that the Transfer Regulations pursuant to which the "block transfer" provisions of the PSEA were made applicable are ultra vires.

PSSRB Decision

[9]                 After setting out the written submissions of the parties in their entirety, the PSSRB disposed of the reference in five short paragraphs. With respect to the argument that the ETP had been triggered, the PSSRB found as a threshold issue that the decision to transfer the CFIA employees to the CBSA was not a decision made by the President of the CFIA. The PSSRB said:

[11]          The provisions of the ETP are clear and unambiguous. An employment transition situation occurs "when the President decided that the services of one or more indeterminate employees will no longer be required beyond a specified date because of a lack of work or the discontinuance of a function within the Agency".

[12]          The decision to transfer positions from the CFIA to the CBSA was made by the Governor in Council on the recommendation of the Prime Minister of Canada [...].

[13]          The fact that the President of the CFIA may have been involved in discussions surrounding the implementation of the Order-in-Council does not negate the fact that the decision to transfer was not his in the first place. I agree with the employer when it states that: "Applying the Order-in-Council and identifying employees to be transferred as a result of it is not a "decision" by the President that services are no longer required".

[10]            With respect to the alleged invalidity of the Transfer Regulations, the PSSRB held that they were authorized by paragraph 36(1)(b) of the PSEA:

[14]          With respect to the vires of the regulation purporting to make applicable the "block transfer" provisions of the Public Service Employment Act to the facts of this case [...], I find nothing in the documentation provided that would allow me to come to the conclusion that the regulation is ultra vires.

[15]          Paragraph 36(1)(b) of the PSEA clearly authorizes the Governor in Council to make regulations "applying all or any of the provisions of the PSEA that do not otherwise apply (...) to any portion or part of any portion of the Public Service", which by definition includes all Departments and portions of the public service of Canada specified in Parts I and II of Schedule I to the PSSRA. I agree with the employer that the words "notwithstanding any other Act" in paragraph 36(1)(b) of the PSEA "are simply a legislative method to ensure that a regulation passed under 36(1)(b) cannot be challenged as being ultra vires another Act".

[11]            The PSSRB went on to deny the reference. This is the decision against which the judicial review application is directed.

Error Alleged in Decision Under Review

[12]            The applicant indicated in open Court that it no longer challenges that aspect of the decision holding that the Transfer Regulations are intra vires. The applicant maintains, however, that the PSSRB erred in holding that an "employment transition" did not occur when the CFIA employees were transferred.

Relevant Statutory and Regulatory Provisions

[13]            The following provisions of the PSSRA, R.S. 1985, c. P-35, address the enforcement of

obligations of employer and employee organizations:

Definitions 2.(1) In this Act, [...] "employer" « employeur » "employer" means Her Majesty in right of Canada as represented by, (a) in the case of any portion of the public service of Canada specified in Part I of Schedule I, the Treasury Board, and

Définitions 2.(1) Les définitions qui suivent s'appliquent à la présente loi. [...] « employeur » "employer" « employeur » Sa Majesté du chef du Canada représentée_: a) par le Conseil du Trésor, dans le cas d'un secteur de l'administration publique fédérale spécifié à la partie I de l'annexe I;

[Emphasis added.]

[14]            The following provisions of the Public Service Employment Act ("PSEA"), R.S. 1985,

c. P-33, address regulations by Governor-in-Council and block transfers:

Definitions 2.(1) In this Act, [...] "Public Service" « fonction publique » "Public Service" has the same meaning as in the Public Service Staff Relations Act. [...] PART IV - GENERAL Regulations 35(1) Regulations by Commission [...] Regulations by Governor in Council 36.(1) The Governor in Council may make regulations (a) applying all or any of the provisions of this Act to all or any of the positions of persons mentioned in subsection 39(1);

Définitions 2.(1) Les définitions qui suivent s'appliquent à la présente loi. [...] « fonction publique » "Public Service" « fonction publique » S'entend au sens de la Loi sur les relations de travail dans la fonction publique. [...] PARTIE IV - DISPOSITIONS GÉNÉRALES Règlements 35(1) Règlements de la Commission [...] 36(1) Règlements pris par le gouverneur en conseil 36.(1) Le gouverneur en conseil peut, par règlement_: a) étendre la portée de tout ou partie de la présente loi à la totalité ou une partie des postes occupés par les

Block Transfers Deemed transfer of employees 37.3 (1) Nothing in an order made under the Public Service Rearrangement and Transfer of Duties Act shall be construed as affecting the status of an employee who, immediately before the coming into force of the order, occupied a position in a portion of the Public Service the control or supervision of which has been transferred from one department or portion of the Public Service to another, or in a department that has been amalgamated and combined, except that the employee shall, on the coming into force of the order, occupy that position in the department or portion of the Public Service to which the control or supervision has been transferred or in the department as amalgamated and combined.

Transferts en bloc Présomption de transfert de fonctionnaires 37.3 (1) Les décrets pris en application de la Loi sur les restructurations et les transferts d'attributions dans l'administration publique ne changent rien à la situation des fonctionnaires qui, à l'entrée en vigueur de ces décrets, occupaient un poste dans le secteur dont la responsabilité a été transférée d'un ministère ou secteur de l'administration publique à un autre ou dans l'un ou l'autre des ministères qui ont été regroupés à la différence près que, à compter de cette entrée en vigueur, ils occupent le poste dans le secteur ou ministère auquel la responsabilité a été transférée ou dans le ministère qui résulte du regroupement, selon le cas.

37.3(3) Definition of "Public Service" (3) In this section, "Public Service" means the departments and other portions of the public service of Canada specified in Part I of Schedule I to the Public Service Staff Relations Act.

37.3(3) Définition de « _administration publique_ » (3) Au présent article, « _administration publique_ » s'entend des ministères et autres secteurs de l'administration publique fédérale figurant à la partie I de l'annexe I de la Loi sur les relations de travail dans la fonction publique.

[Emphasis added.]

[15]            Enabled by the PSEA, the following provisions of the Transfer Regulations,

SOR/2003-430, provide for the transfer that is subject to the present proceedings:

COMING INTO FORCE 2. These Regulations come into force on December 12, 2003.

ENTRÉE EN VIGUEUR 2. Le présent règlement entre en vigueur le 12 décembre 2003.

[Emphasis added.]

[16]          The following provisions of the Public Service Rearrangement and Transfer of Duties

Act ("PSRTDA"), R.S., c. P-34, are also relevant:

[17]          Enabled by the PSRTDA, the following provisions are relevant with respect to the Order

Transferring Certain Portions of the Operations Branch of the Canadian Food Inspection Agency to the Canada Border Services Agency ("Order"), P.C. 2003-2065 of December 12, 2003:

Her Excellency the Governor General in Council, on the recommendation of the Prime Minister, pursuant to paragraph 2(a) of the Public Service Rearrangement and Transfer of Duties Act, hereby transfers to the Canada Border Services Agency, effective December 12, 2003, the control and supervision of the portions of the public service within the Operations Branch of the Canadian Food

Sur recommandation du premier ministre et en vertu de l'alinéa 2a) de la Loi sur les restructurations et les transferts d'attributions dans l'administration publique, Son Excellence la Gouverneure générale en conseil transfère à l'Agence des services frontaliers du Canada la responsabilité à l'égard des secteurs de l'administration publique au sein de la Direction générale des opérations de

Analysis and Decision

[18]            It is generally accepted that the interpretation and application of a collective agreement, including references under the PSSRA alleging its violation fall within the purview of the PSSRB's expertise and call for the highest degree of deference known as patent unreasonableness (see for instance, Barry v. Treasury Board (1997), 221 N.R. 237 (F.C.A.); Connors v. Canada (Revenue - Taxation), [2002] F.C.J. No. 477 (T.D.), (Q.L.); Attorney General of Canada v. Social Science Employees Assn. et al. 240 D.L.R. (4^th) 335; White v. Canada (Treasury Board), 2004 FC 1017).

[19]            However, the applicant contends that the decisions of the Supreme Court in Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609 and Alberta Union of Provincial Employees v. Lethbridge Community College, [2004] 1 S.C.R. 727 have altered the standard of review applicable in labour disputes. According to the applicant, these decisions stand for the general proposition that the interpretation or application of collective agreements in the context of labour disputes no longer call for the highest degree of deference. I do not believe that to be the case.

[20]            The two decisions relied upon have not been construed as the applicant suggests. Indeed, the Ontario Court of Appeal specifically refused to adopt the approach proposed by the applicant in Lakeport Beverages v. Teamsters Local Union 938 (2005), as did the Federal Court in Currie et al. v. the Queen (CCRA), 2005 F.C. 733. I am aware of no decision in which the pronouncement of the Supreme Court in Voice Construction and in Lethbridge Community College has been applied as the applicant proposes.

[21]            In addition, unlike the arbitrator in the Voice Construction decision, the Chairperson of the PSSRB is not an ad hoc adjudicator appointed by the parties. The PSSRB is a statutory tribunal created by Parliament by virtue of the PSSRA. In my view, this institutional expertise favours a more deferential standard of review, which is in stark contrast to the nature of the standard applied in Voice Construction.

[22]            Furthermore, the question of whether the provisions of the collective agreement were triggered on the facts of this case is one of mixed fact and law. This again distinguishes the present application from the issue which arose in Voice Construction.

[23]            That said, I am of the view that regardless of the standard, the PSSRB had the discretion to hold that the ETP was not triggered when employees of the CFIA were transferred to the CBSA. As the applicant itself recognizes, the primary purpose of the ETP is to minimize the impact of job loss. In this case, no employee lost his or her job as a result of the Order-in-Council as all affected employees were deemed to be employees of the CBSA as of December 12, 2003 (ETP, Applicant's Record, Volume I, Tab 2, at page 105).

[24]            More significantly, an "employment transition" is defined in the collective agreement's ETP as:

a situation that occurs when the President decides that the services of one or more indeterminate employees will no longer be required beyond a specified date because of a lack of work or the discontinuance of a function within the Agency. Such situations may arise for reasons including but not limited to those identified in the Policy section above. [Emphasis added.]

[25]            In this case, the President of the CFIA did not decide. The decision to consolidate various government functions under the authority of the CBSA was made by the Governor-in-Council under the authority of the PSRTDA.

[26]            Counsel for the applicant agreed that the effect of the Order-in-Council was to transfer functions, but argued that the President was the one who decided which persons were affected. With respect, the effect of the Order-in-Council was to transfer each person occupying the function identified by the Order-in-Council, and the President merely gave effect to that decision.

[27]            The Block Transfer provisions of the PSEA are explicit in stating that an Order made pursuant to the PSRTDA shall not affect the status of an employee, other than the fact that the employee shall be deemed to occupy the position in the new department. It follows that the PSSRB was on solid ground when it held as a threshold issue that the circumstances did not meet the definition of "employment transition" as found in the ETP.

[28]            I would dismiss the application with costs in favour of the respondent.

                 "Marc Noël"                   

J.A.

"I agree.

J. Edgar Sexton, J.A."

"I agree.

B. Malone, J.A."

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           A-636-04

STYLE OF CAUSE:                 PUBLIC SERVICE ALLIANCE OF CANADA v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY CANADIAN FOOD INSPECTION AGENCY

PLACE OF HEARING:                     OTTAWA, ONTARIO

DATE OF HEARING:                       NOVEMBER 1, 2005

REASONS FOR JUDGMENT:        NOËL J.A.

CONCURRED IN BY:                      SEXTON J.A.

MALONE J.A.

DATED:                                              NOVEMBER 7, 2005

APPEARANCES:

Mr. Andrew Raven                                                        FOR THE APPELLANT

Ms. Suzanne Brandon

Mr. Neil McGraw                                                        FOR THE RESPONDENT

SOLICITORS OF RECORD:

Raven, Allen, Cameron, Ballantyne,                               FOR THE APPELLANT

& Yazbeck LLP

Ottawa, Ontario                       

John H. Sims, Q.C.                                                      FOR THE RESPONDENT

Deputy Attorney General of Canada                 

Ottawa, Ontario