A-321-89
Attorney General of Canada (Applicant)
v.
Public Service Alliance of Canada (Respondent)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. P.S.A.C.
(C.A.)
Court of Appeal, Iacobucci C.J., Mahoney and
Stone JJ.A.—Ottawa, August 29 and September
18, 1989.
Public service — Labour relations — Application to set
aside Board decision employer, Treasury Board, not showing
"proper case" or "good cause" for late filing of lists of
designated employees — Filing of lists abrogating right to
strike as duties affecting public safety — Board disregarding
evidence on importance of employees' duties in relation to
public safety and security in establishing proper case and good
cause — Holding late filing resulting from inefficiency, negli
gence and lack of foresight — Application dismissed — "Good
cause" relating to explaining delay in late filing, not to why
relief should be granted from consequences thereof — Board
having limited jurisdiction to relieve government from conse
quences of default.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Public Service Staff Relations Act, R.S.C. 1970, c. P-35,
s. 79(2).
Public Service Staff Relations Act, R.S.C., 1985, c. P-35,
s. 78.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Public Service Alliance of Canada v. Canada (Treasury
Board), [1989] 2 F.C. 445 (C.A.).
COUNSEL:
Rory R. Edge for applicant.
Andrew J. Raven for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent.
The following are the reasons for judgment
rendered in English by
IAcoBuccl C.J.: This section 28 [Federal Court
Act, R.S.C., 1985, c. F-7] proceeding raises the
question whether, as contended by the Attorney
General of Canada ("applicant"), the Public Ser
vice Staff Relations Board ("PssRB") erred in law
in finding that the circumstances of this case did
not amount to "a proper case or good cause" with
respect to the late filing by the employer, Treasury
Board of Canada, of certain lists of designated
employees pursuant to subsection 78(2) of the
Public Service Staff Relations Act ("Act")) The
filing of such lists of designated employees is in
effect to deprive such employees of the right to
strike in the collective bargaining process because
of the nature of their duties as these affect public
safety and security.
R.S.C., 1985, c. P.-35. The relevant parts of section 78 read
as follows:
78. (1) Notwithstanding section 77, 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 bargain
ing unit, in this Act referred to as "designated employees",
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.
(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 to 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) 1f no objection to the statement referred to in subsec
tion (2) is filed with the Board by the bargaining agent for
the relevant bargaining unit within such time after the
receipt thereof by the bargaining agent as the Board may
prescribe, the 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.
(4) Where an objection to the statement referred to in
subsection (2) is filed with the Board by the bargaining agent
(Continued on next page)
In providing some background to the above
question, I begin with a previous decision of this
Court, Public Service Alliance of Canada v.
Canada (Treasury Board), [1989] 2 F.C. 445
(C.A.) (the "Data Processing decision") which
allowed a section 28 application by the Public
Service Alliance of Canada ("Alliance" or
"respondent") and set aside a decision of the
PSSRB respecting the designation of employees in
the Data Processing bargaining unit. In its deci
sion, the PSSRB ruled that the twenty-day time
limit in then subsection 79(2) [R.S.C. 1970, c.
P-35] (now subsection 78(2)) of the Act, within
which the employer (Treasury Board) is required
to file a statement of designated employees whose
duties are considered necessary in the interest of
the safety or security of the public, was directory
only. Although the employer admitted it had filed
the statement some three days late with respect to
both the Data Processing bargaining unit and
eighteen other bargaining units represented by the
respondent, the PSSRB nonetheless held that the
employer was not prevented from presenting its
proposed lists of designated employees.
This Court disagreed. In writing for a unani
mous Court, Hugessen J.A., stated that the "real
problem" was not whether the furnishing of the
list was mandatory or directory but rather whether
the furnishing of a list of designated employees is a
duty on the employer, which if not exercised
within the time prescribed must not adversely
affect the safety and security of the public, or a
power of the employer, which it is free to exercise
as it sees fit. While acknowledging the govern
ment's clear duty to act in the public interest,
Hugessen J.A. said that that interest extends
beyond matters of safety or security to include the
right of public servants to follow the union of their
choice, to bargain collectively, and finally to
(Continued from previous page)
for the relevant bargaining unit within such time after the
receipt thereof by the bargaining agent as the Board may
prescribe, the Board, after considering the objection and
affording each of the parties an opportunity to make
representations, shall determine which of the employees or
classes of employees in the bargaining unit are designated
employees.
strike. 2 He went on to hold that the subsection was
simply facultative—that is the subsection in ques
tion allows the employer to submit a list within the
time prescribed, thereby implying that where no
submission is timely made, the parties are pre
sumed to have agreed that there are to be no
designated employees within the applicable bar
gaining unit.
At this juncture I wish to state that I fully agree
with the interpretation of subsection 78(2) (then
79(2)) of the Act and the reasoning of Hugessen
J.A., and find it unnecessary to elaborate further
on that aspect of the matter. However, in his
reasons, Hugessen J.A. added the following
comment:
One further point. This is apparently a test case. I am
astonished to learn that the situation here is not unique. At the
time of the hearing before the Board, there were nineteen
pending instances where the employer had failed to comply
with the time limit in subsection 79(2). It may be that this is
due to simple negligence or it may be that it is an indication
that the time provided is too short; if the latter is the case, the
remedy lies in amending the legislation, not in interpreting it in
a manner which does violence to the language. It is to be noted
that no attempt was made by the employer to justify the late
filing and I accordingly do not exclude the possibility that the
Board could, in a proper case and for good cause shown, relieve
the government from the consequences of its default. [Empha-
sis added.] 3
Following the judgment of the Court of Appeal,
the PSSRB held a number of hearings relating to
several Alliance bargaining units to determine
whether the facts surrounding the employer's late
filing of designation lists constituted a "proper
case" and "good cause" in the opinion of the
PSSRB in order to "relieve the government from
the consequences of its default" in the words of
Hugessen J.A. quoted above.
The decision of the PSSRB, which is the subject
of the present section 28 proceeding, followed
hearings held on May 26, 31, and June 1, 1989
and dealt with filings of the lists of designated
employees in the Hospital Services, Ships Crews,
and Welfare Programmes bargaining units. Since
the employer admitted the filing was late, the issue
focused solely on whether the reasons put forward
2 At pp. 449-450.
Id. at p. 450.
by the employer amounted to "a proper case" and
"good cause" for the PSSRB to relieve the employer
from the consequences of its late filing.
Apparently some nine departments were late in
submitting to Treasury Board their respective
designation statements but evidence explaining the
late filing was offered to the PSSRB only with
respect to the Department of National Defence. In
that Department, evidence was presented to the
effect that a computer breakdown caused the
delay. But after considering all the evidence in this
connection, the PSSRB concluded:
In our view, all the above simply establishes that for want of
better terms, it is the employer's own inefficiency, negligence
and lack of foresight which caused the late filing of the
designation statements for the employees employed by the
Department of National Defence. Accordingly, the Board
determines that this is not a proper case and, "good cause" has
not been shown to relieve the employer from the consequences
of its default. 4
Much of the employer's evidence in the hearings
before the PSSRB was aimed at outlining the
importance of the duties and responsibilities per
formed by employees in each of the three bargain
ing units in question so that because of their
important duties in relation to public safety and
security, a late filing could be justified as a proper
case and good cause. The PSSRB acknowledged the
importance of the duties performed by many
employees in the three bargaining units but, in
referring to the reasons of Mr. Justice Hugessen
supra, said that the matter of safety or security of
the public was not the issue for the PSSRB to
decide.
After referring to the possibility suggested by
Hugessen J.A. that the PSSRB could, in a proper
use and for good cause shown, relieve the govern
ment from the consequences of its default, the
PSSRB stated:
Hence, we must read the last paragraph of page 7 of the
decision with the premise in mind that the Court allowed a door
to stay open in "a proper case and for good cause shown".
There can be no question that the duties performed by desig
nated employees are important to the public interest. This is
clear from the language of subsection 78(1) of the Act. How
4 Decision of PSSRB, Case Book, vol. II, p. 414.
ever, for the Board to accept the argument of counsel for the
employer that all that the employer is required to do to be
relieved of the consequences of its default is to establish that
the employees proposed for designation do perform duties
necessary in the interest of the safety or security of the public
would, in our opinion, render the words contained in the last
paragraph of the decision of Mr. Justice Hugessen
meaningless. 5
The Treasury Board argues that PSSRB erred in
law in failing to consider or to treat the evidence
on the duties performed as coming within the
words "a proper case and for good cause shown"
so as to justify a delay in the filing of the state
ments. The respondent, although raising some
question about the notion of a proper case or good
cause being introduced as a matter of law and
statutory interpretation, argues the PSSRB commit
ted no error in law in disregarding the evidence on
the duties and responsibilities of employees.
I agree with the respondent that the PSSRB
committed no error of law that is reviewable in
this section 28 proceeding.
Mr. Justice Hugessen's comments in the Data
Processing decision, from their context and from
the underlying rationale of section 78 and related
provisions of the Act, clearly mean that good cause
relates to explaining the delay in late filing not to
why relief should be given to the government from
the consequences of its late filing. Although the
statute in question, unlike many others that deal
with time limits, does not mention the possibility
of a proper case and good cause and although
specific time limits should as a general matter be
taken seriously, I do not think it does harm to
statutory interpretation or Parliament's intent to
acknowledge that such time limits can be treated
as being legally met where an event or happening
akin to an accident, force majeure or Act of God
has intervened to prevent literal compliance with
the time limit. It takes little imagination in our
modern complex life to think of circumstances
where, through no fault or shortcoming of the
employer, the filing of the list was delayed. I
believe this was behind Hugessen J.A.'s comments.
5 Id. at p. 417.
Obviously one cannot generalize since each case
depends on the statute in question and the words
used amongst other factors. Accordingly I believe
the PSSRB does have an implied but very limited
jurisdiction to relieve the government—employ-
er—of its default if it is persuaded by the reasons
for the delay in what would likely be most unusual
or extraordinary circumstances.
But to accept as reasons for delay, the fact that
the employees in question are involved in admit
tedly important public safety and security activi
ties would amount to a serious reformulation or
rewriting of what is provided in the Act, which as
stated is a reconciliation of public safety and secu
rity issues, on the one hand, and of collective
bargaining rights of certain employees on the
other. The relevant sections of the Act ex hypo-
thesi recognize the importance of the employees'
duties so that should not be treated as a good
cause for delay in filing the statement contemplat
ed by the Act.
Subsection 78(4) of the Act calls for the PSSRB
to determine, where the bargaining agent objects
to designation of certain employees and after
giving the parties an opportunity to make
representations, which of the employees are to be
designated. It is only then that the question of
designated employees is to be finally decided. For
the employer to say that because of the importance
of the duties performed more time is needed to file
statements flies in the face of the plain language of
the statute and the process provided therein. If the
applicant's view is correct, then the question arises
as to how much time would be taken to file the
statement—presumably the Treasury Board could
take a very long time to file and one then has to
ask what will have happened to the Act's recon
ciliation of public safety and security and collec
tive bargaining rights of the employees involved.
Allowing the time limit to be interpreted with
good cause for delay is still adhering to the time
limit but merely saying that there is a deemed
compliance with the time limit. However, if one
accepted the applicant's argument that good cause
also means a consideration of the important duties
of the employees, that would be tantamount to
allowing the time limit to be ignored and not
complied with which could result in detriment to
the collective bargaining rights of employees in a
manner inconsistent with the Act.
Counsel for the applicant also argued mistake of
law as ground for relief by reason of the fact that
the Treasury Board acted in light of three deci
sions of the PSSRB prior to the decision of this
Court in the Data Processing decision, all to the
effect that failure to comply with the time limit
would not prejudice the designation process. On
this point the PSSRB concluded:
The employer argued that the rules had changed and that they
changed because of the Decision of the Federal Court of
Appeal. However, Section 78 was not amended and, in our
view, the employer cannot rely on the Board's error of law in
interpreting Section 78 of the Act to establish good cause for its
default. 6
I see no reason to disturb the holding of the
PSSRB in this respect especially in the light of its
finding, which again I see no reason to differ with,
that with respect to the Department of National
Defence, it was the "employer's own inefficiency,
negligence and lack of foresight which caused the
late filing of the designation statements ...".
Accordingly, this section 28 application will be
dismissed.
MAHONEY J.A.: I agree.
STONE J.A.: I agree.
6 Id. at p. 418.
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.