Public Service Alliance of Canada v. Canada ( Treasury Board )
A-331-95
Pratte, Stone JJ.A. and MacGuigan J.A. dissenting
9/2/96
13 pp.
Application for judicial review of PSSRB decision confirming identification, by Executive Committee of Correctional Service, of correctional supervision positions as managerial or confidential in accordance with Public Service Staff Relations Act, s. 5.2, thereby excluding incumbents from bargaining unit represented by applicant, reducing members of bargaining unit from 274 to 12-PSAC challenging decision as unfair labour practice-Application dismissed, MacGuigan J.A. dissenting-Per Pratte J.A.: finding of unfair labour practice cannot be made where, as herein, Board finds employer would, in any event, have come to same decision for other motives-Conclusion purely factual and not so clearly erroneous as to warrant Court's intervention-Per Stone J.A.: Board's finding employer not improperly motivated above all factual issue and should not be interfered with-Union membership not proximate cause for employer's decision-Per MacGuigan J.A. (dissenting): Factual situation herein extent to which management influenced by fact correctional supervisors belonged to same union as employees they supervised-Fact same-union membership factor in management decision must be assumed to have been established-Board made no factual finding on this evidence, apparently assuming sufficient if some "cogent evidence" supporting management decision; in other words, enough if justifiable reason for decision as well as unacceptable one-However, case law to effect if any element of anti-union animus motivating employer's action as a (not the) proximate cause, employer deemed in violation of Act-Managerial decision could be said to be intended to remove benefits of collective bargaining from correctional supervisors affected-In excluding this from consideration despite exigencies of Act, s. 8, even though proximate cause of management decision, Board fell into reviewable error of law-Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 5.2 (as enacted by S.C. 1992, c. 54, s. 33), 8 (as am. idem, s. 34).