A-638-90
F. Latimer, G. Lynch & P. Watson (Applicants)
v.
Her Majesty the Queen in Right of Canada as
represented by Treasury Board (Respondent)
INDEXED AS.' LATIMER Y. CANADA (TREASURY BOARD) (C.A.)
Court of Appeal, Mahoney, Stone and MacGuigan
JJ.A.—Ottawa, December 3 and 5, 1991.
Public Service — Labour relations — Casual workers
employed less than six months claiming retroactive increase
won by General Labour and Trades group — PSSRA excluding
such persons from definition of "employee" — Applicants
arguing, before adjudicator, exclusion contrary to Charter —
Adjudicator lacking jurisdiction over parties, subject matter.
Constitutional law — Charter of Rights — Enforcement —
Casual government workers arguing PSSRA provision exclud
ing those employed under six months from "employee" status
violating Charter guaranteed equality, freedom of association
— Labour tribunals having limited power to determine Charter
issues related to jurisdiction — Jurisdiction deriving from ena
bling statute, not Constitution — Adjudicator under PSSRA
lacking jurisdiction over parties, subject matter.
This was an application to review the decision of an adjudi
cator that he was without jurisdiction to hear and determine the
applicants' grievance.
The applicants are casual workers employed by the respon
dent for less than six months. Their positions are classified
within the General Labour and Trades (GLT) group, which is
represented for purposes of collective bargaining by the Public
Service Alliance of Canada (PSAC). The applicants sought to
receive the retroactive pay increases gained, in collective bar
gaining, by employees in the GLT bargaining unit. The
employer takes the position that they are not included in the
collective agreement as they are not employees: section 2 of
the Public Service Staff Relations Act expressly excludes cas
ual workers with less than six months' service from the defini
tion of "employee". The applicants grieved. Before the adjudi
cator, the applicants argued that the statutory provision
denying them the status of employees infringed both their free
dom of association and their equality rights under the Charter.
The adjudicator ruled that not he, but only the Public Service
Staff Relations Board (PSSRB), could make a determination of
the constitutional validity of a provision of the Act.
Held, the application should be dismissed.
The courts have recognized a limited but important power in
labour boards to determine constitutional issues involving their
own jurisdiction. That power is not considered to be conferred
by the Constitution, but by the legislative framework of which
the administrative tribunal is part. In Cuddy Chicks Ltd. v.
Ontario (Labour Relations Board), the majority view of the
Supreme Court of Canada was that such jurisdiction must be
conferred, by the enabling statute or otherwise, expressly or
implicitly. That Court, in Tétreault-Gadoury v. Canada
.(Employment and Immigration Commission), held that, in the
absence of a statutory grant of authority, a board of referees
did not have jurisdiction to determine the constitutionality of
its statute.
What is in dispute here is the administrative tribunal's juris
diction over the parties before it. The adjudicator's power is
granted in relation to "employees" by a statute which expressly
excludes persons like the applicants. There is no such stricture
on the PSSRB, which has a statutory mandate to exercise such
powers as may be incidental to the attainment of the objects of
the Act.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 2(d), 15.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix H, No. 44],
s. 52.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Public Service Staff Relations Act, R.S.C., 1985, c. P- 35,
ss. 2, 21, 34, 92, 96.
CASES JUDICIALLY CONSIDERED
APPLIED:
Cuddy Chicks Ltd. v. Ontario (Labour Relations Board),
[1991] 2 S.C.R. 5; (1991), 81 D.L.R. (4th) 121; 91 CLLC
14,024; 122 N.R. 361; [1991] OLRB Rep. 790; Tétreault-
Gadoury v. Canada (Employment and Immigration Com
mission), [1991] 2 S.C.R. 22; (1991), 81 D.L.R. (4th) 358;
91 CLLC 14,023; 126 N.R. 1.
CONSIDERED:
Canada (Attorney General) v. Public Service Alliance of
Canada, [1991] 1 S.C.R. 614; (1991), 80 D.L.R. (4th)
520; 48 Admin. L.R. 161; 91 CLLC 14,017; 123 N.R.
161.
REFERRED TO:
Douglas/Kwantlen Faculty Assn. v. Douglas College,
[1990] 3 S.C.R. 570; (1990), 91 CLLC 17,002; 118 N.R.
340.
COUNSEL:
Andrew J. Raven for applicants.
Roger R. Lafrenière and Dora Benbaruk for
respondent.
SOLICITORS:
Soloway, Wright, Ottawa, for applicants.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for judgment ren
dered in English by
MACGUIGAN J.A.: This section 28 [Federal Court
Act, R.S.C., 1985, c. F-7] application concerns the
jurisdiction of an adjudicator appointed by the Public
Service Staff Relations Board ("the PSSRB" or "the
Board") to determine the applicants' status as
employees.
I
The applicants are casual workers employed by the
respondent who seek entitlement to retroactive pay
increases won for employees in the General Labour
and Trades ("GLT") bargaining unit during negotia
tions by the bargaining agent, the Public Service Alli
ance of Canada (the "PSAC"). The respondent denies
their entitlement on the ground that they are not
employees for purposes of the collective agreement
because they are casual workers who are employed
for less than six months and who are thus excluded
from the definition of employee in the Public Service
Staff Relations Act ("the Act"), R.S.C., 1985, c. P-35,
which contains the following definition in section 2:
2. In this Act,
"employee" means a person employed in the Public Service,
other than
(g) a person employed on a casual or temporary basis, unless
the person has been so employed for a period of six months
or more,....
The same definition section describes a grievance
as a complaint by an "employee":
2. In this Act,
"grievance" means a complaint in writing presented in accor
dance with this Act by an employee on his own
behalf or on behalf of the employee and one or
more other employees.....
The adjudication of grievances is provided for in
section 92 of the Act:
92. (1) Where an employee has presented a grievance, up to
and including the final level in the grievance process, with
respect to
(a) the interpretation or application in respect of the
employee of a provision of a collective agreement or an
arbitral award, or
(b) disciplinary action resulting in discharge, suspension or
a financial penalty.
and the grievance has not been dealt with to the satisfaction of
the employee, the employee may, subject to subsection (2),
refer the grievance to adjudication.
(2) Where a grievance that may be presented by an
employee to adjudication is a grievance described in paragraph
(1)(a), the employee is not entitled to refer the grievance to
adjudication unless the bargaining agent for the bargaining
unit, to which the collective agreement or arbitral award
referred to in that paragraph applies, signifies in the prescribed
manner its approval of the reference of the grievance to adjudi
cation and its willingness to represent the employee in the
adjudication proceedings.
Other provisions which were referred to in argu
ment in relation to the powers of the Board as a
whole are subsection 21(1) and sections 34 and 96,
which read as follows:
21. (1) The Board shall administer this Act and exercise
such powers and perform such duties as are conferred or
imposed on it by, or as may be incidental to the attainment of
the objects of, this Act including, without restricting the gener
ality of the foregoing, the making of orders requiring compli
ance with this Act, with any regulations made hereunder or
with any decision made in respect of a matter coming before it.
34. Where, at any time following the determination by the
Board of a group of employees to constitute a unit appropriate
for collective bargaining, any question arises as to whether any
employee or class of employees is or is not included therein or
is included in any other unit, the Board shall, on application by
the employer or any employee organization affected, deter
mine the question.
96. (1) Subject to any regulation made by the Board under
paragraph 100(1)(d), no grievance shall be referred to adjudi
cation and no adjudicator shall hear or render a decision on a
grievance until all procedures established for the presenting of
the grievance up to and including the final level in the griev
ance process have been complied with.
(2) No adjudicator shall, in respect of any grievance, render
any decision thereon the effect of which would be to require
the amendment of a collective agreement or arbitral award.
(3) Where a grievance has been presented up to and includ
ing the final level in the grievance process and it is not one that
under section 92 may be referred to adjudication, the decision
on the grievance taken at the final level in the grievance pro
cess is final and binding for all purposes of this Act and no
further action under this Act may be taken thereon.
Whether or not the applicants are employees, the
nature of their duties and responsibilities is such that
they are classified within the GLT occupational
group, which is represented for collective bargaining
purposes by the PSAC.
The applicants took the position before the adjudi
cator and again before this Court that the denial of
employee status to casual employees in paragraph
2(g) of the Act violates freedom of association under
paragraph 2(d) of the Canadian Charter of Rights
and Freedoms [being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.) [R.S.C., 1985, Appendix II, No. 44]] ("the
Charter") and equality rights protections under sec
tion 15 of the Charter, and that as a result of the
application of section 52 of the Constitution Act,
1982 [Schedule B, Canada Act 1982, 1982, c. 11
(U.K.) [R.S.C., 1985, Appendix II, No. 44]] their
exclusion under paragraph 2(g) of the Act is of no
force and effect.
Board Member Young, sitting as an adjudicator,
decided in reasons for decision dated August 14,
1990, that such an issue can be addressed only
through an appropriate application to the PSSRB as a
whole rather than by an adjudicator in the form of a
grievance. The pertinent parts of his reasoning are as
follows (Case at pages 427a-429):
Great problems arise in attempting to deal with these claims
through the adjudication process. It should be noted that the
parties have agreed that the three grievers fall within the exclu
sion contained in paragraph (g) to the definition of "employee"
found in section 2 of the Public Service Staff Relations Act.
Counsel for the grievers has raised very detailed and serious
arguments on their behalf relating to their rights under the
Canadian Charter of Rights and Freedoms. However ingenious
these arguments may be, it seems to me that they go well
outside the considerations which form or ought to form the
basis for disposing of these grievances. Basically, counsel's
argument is that the definition of "employee" as found in the
Public Service Staff Relations Act offends the Charter and that,
therefore, the grievers have been denied an opportunity to
associate and to become members of the bargaining unit.
That is to say, in order to resolve what would otherwise be a
rather simple and straightforward claim to a retroactive pay
increase, counsel for the grievers would require this adjudica
tor to test the constitutional validity of a major portion of the
framework governing collective bargaining in the federal Pub
lic Service. The ramifications of such a determination 'could be
enormous and reach far beyond the bounds of these grievances
given that the term "employee" as defined in the Public Ser
vice Staff Relations Act is used throughout that Act in estab
lishing the scope of bargaining, certification, grievance proce
dure, and so forth.
In effect, what counsel for the grievers would require me to
do. in order to uphold these grievances is to deem the grievers
to be "employees, and members of the bargaining unit. To all
intents and purposes, this would be tantamount to enlarging the
original order of certification granted by the Board some 23
years ago. Not only would it call into question much of the
framework and process by which collective bargaining in the
federal Public Service is governed, but it would conceivably
call into question all other certificates issued by the Board in
which the question of the rights of casual employees could be
claimed to be at stake.
Such issues are of a magnitude which can not be properly
addressed within the confines of deciding the narrow question
of a right to retroactive pay. While one might empathize with
the condition of those who are in receipt of disparate and
smaller pay packets compared to their unionized colleagues,
with whom they labour under like conditions save for the
length of their terms of employment, such issues can only be
addressed through an appropriate application to the Board
rather than under the guise of a grievance as is the case here.
For example, in the Cuddy Chicks case (supra), relied upon by
counsel for the grievers, the issue arose out of an application
for certification. The Ontario Court of Appeal upheld the deter
mination of the Ontario Labour Relations Board to the effect
that it had the requisite authority to determine whether the pro
visions of its enabling statute excluding agricultural workers
from collective bargaining violated the Charter and was there
fore of no force and effect pursuant to section 52 of the Consti-
tution Act, 1982. It should be noted that that particular case is
expected to be decided by the Supreme Court of Canada in the
near future.
Furthermore, in light of section 92 of the Public Service
Staff Relations Act, I believe that it would be beyond the scope
of my authority as an adjudicator to decide whether a provision
of the Public Service Staff Relations Act violates the Charter
and is therefore of no force and effect. Such a determination
might very well call into question not only much of the present
foundation of collective bargaining in the federal Public Ser
vice but also the scope of many of the Board's certificates.
Those questions, as stated above, fall within the jurisdiction of
the Board rather than of an adjudicator and should be raised in
the context of an appropriate application to the Board as
opposed to a grievance respecting retroactive pay.
It is not only conceivable but highly probable that any pro
ceeding brought before the Public Service Staff Relations
Board seeking to strike down the exclusionary paragraphs con
tained in the definition of "employee" in the Public Service
Staff Relations Act would be of great interest to all employers
and all bargaining agents who might thereby be affected. As
such, they should be entitled to notification of such a proceed
ing and provided with an opportunity to intervene. This is not
possible in the context of the instant reference to adjudication
of these grievances dealing with claims for retroactive pay on
behalf of the three individuals and one bargaining agent
involved.
Since by definition the grievers are not employees for the
purposes of the Public Service Staff Relations Act, and since I,
sitting as an adjudicator, do not believe that I have the author
ity to determine that the exclusion contained in paragraph (g)
to the definition of employee in section 2 of the Public Service
Staff Relations Act violates the Charter and is of no force or
effect, therefore the grievers are not entitled to the benefits
contained in any collective agreement negotiated for employ
ees in the General Labour and Trades group bargaining unit.
I am in agreement with the approach of Adjudica
tor Young, but because his decision was delivered
before the recent trilogy of Supreme Court of Canada
decisions supporting the jurisdiction of administra
tive tribunals to interpret the Constitution, including
the Charter, I believe it would be well to put the deci
sion in their perspective.
II
The three recent Supreme Court decisions are the fol
lowing: Douglas/Kwantlen Faculty Assn. v. Douglas
College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v.
Ontario (Labour Relations Board), [1991] 2 S.C.R. 5;
Tétreault-Gadoury v. Canada (Employment and
Immigration Commission), [1991] 2 S.C.R. 22.
In Douglas College La Forest J., in delivering the
reasons for decision of the majority, regarded it as
too clear for discussion that the arbitrator, there
appointeyi under the provisions of the Industrial Rela
tions Act, R.S.B.C. 1979, c. 212, had jurisdiction over
the parties, which is the primary issue in the case at
bar, but ultimately also came to the conclusion that
he had authority over the subject matter and the rem
edy sought. With respect to jurisdiction over the par
ties, it need only be noted that the two faculty mem
bers who had brought the grievance were members of
a union representing the employees of the College
when they brought their grievance under the collec
tive agreement against the compulsory retirement
provided for by the agreement.
In Cuddy Chicks the issue was as to the jurisdiction
of the Ontario Labour Relations Board to determine
the constitutionality of a provision of its enabling
statute, the Labour Relations Act, R.S.O. 1980, c.
228, on an application for certification by a local of
an international union. Again, there could be no
question of its jurisdiction over the parties, the
employer and the union, since they were validly
before it. The complication arose with respect to
jurisdiction over the subject matter and the remedy.
In the words of La Forest J. (at page 15):
It first must be determined whether the Board has jurisdic
tion over the whole of the matter before it. It is clear that it has
jurisdiction over the employer and the union. The issue here
centres on its jurisdiction over the subject matter and remedy.
The subject matter before the Board cannot be characterized
simply as an application for certification, which would cer
tainly, fall within the authority of the Board. This is an applica
tion which requires the Board to subject s. 2(b) of the Act to
Charter scrutiny in order to determine whether the application
for certification is properly before it. Similarly, the remedy of
certification requires the Board to refuse to give effect to s.
2(b) of the Act because of inconsistency with the Charter.
Since the subject matter and remedy in this case are premised
on the application of the Charter, the authority to apply the
Charter must be found in the Board's enabling statute.
After concluding that the Ontario Labour Relations
Board had not only authority, but a duty to ascertain
the constitutional validity of any challenged provi
sion of its enabling Act, La Forest J. stated (at page
19):
What these cases speak to is not only the fundamental nature
of the Constitution, but also the legal competence of labour
boards and the value of their expertise at the initial stages of
complex constitutional deliberations. These practical consider
ations have compelled the courts to recognize a power, albeit a
carefully limited one, in labour tribunals to deal with constitu
tional issues involving their own jurisdiction. Such considera
tions are as compelling in the case of Charter challenges to a
tribunal's enabling statute. Therefore, to extend this "limited
but important role" of labour boards to the realm of the Char
ter is simply a natural progression of a well-established princi
ple.
In Tétreault-Gadoury, a case dealing with the
denial of ordinary unemployment insurance benefits
to persons over 65, in the words of La Forest J. (at
page 31) "for the first time, the Court is faced with
the question whether an administrative tribunal that
has not expressly been provided with the power to
consider all relevant law may, nonetheless, apply the
Charter." Subsection 52(1) of the Constitution Act,
1982 does not itself confer such power on a tribunal.
Only its statutes can do that. The Court found no such
explicit authority in the Unemployment Insurance
1 La Forest J. in all of these cases stated that "jurisdiction
must have expressly or impliedly been conferred on the tribu
nal by its enabling statute or otherwise" (Cuddy Chicks at p.
14, emphasis added), and his approach is recognized by Wilson
J. as different from her own (Cuddy Chicks, at p. 20):
In the present appeal my colleague has restated the posi
tion he took in Douglas College that the authority to apply
the Charter must be found in the tribunal's enabling statute
and he has found once again that its jurisdiction is found
there, that the broad jurisdiction conferred on the Board by
s. 106(1) of the Labour Relations Act, R.S.O. 1980, c. 228,
includes the authority to interpret the Charter.
In concurring with my colleague in the present appeal 1
would accordingly wish once again to add the qualification
which I added to my concurrence in Douglas College. The
absence of legislative authority to deal with the Charter
issue in the governing statute is not, in my view, necessarily
(Continued on next page)
Act, 1971, as far as a board of referees is concerned,
but such power is expressly conferred upon an
umpire. La Forest therefore concluded (at page 35):
... I find that, notwithstanding the practical capability of the
Board of Referees, the particular scheme set up by the legisla
ture in the Unemployment Insurance Act, 1971 contemplates
that the constitutional question should more appropriately have
been presented to the umpire, on appeal, rather than to the
Board itself.
Applying the test set forth in Douglas College and Cuddy
Chicks, I find that, while the Board of Referees had jurisdiction
over the parties in this case, it did not have jurisdiction over
the subject matter and the remedy.
He saw this conclusion as both maintaining the legis
lative scheme and retaining the practical advantages
of administrative resolution at first instance (at pages
35-37):
In Douglas College and Cuddy Chicks, supra, I recognized
that there are many advantages, from a practical perspective,
associated with allowing administrative tribunals to decide
constitutional questions. It is important to note that many of
the practical advantages are preserved in the present case, even
though jurisdiction to decide Charter questions does not rest
with the Board. Foremost amongst these considerations is the
fact that the Unemployment Insurance Act, 1971 allows for the
possibility of appeal to an umpire who does possess such juris
diction. This is of considerable importance in that it provides
an applicant with the option of pursuing an avenue outside the
regular court process ....
However, where, as here, the legislature has provided the lit
igant with the possibility of an administrative appeal before a
body which has the power to consider the constitutional argu
ments, the need for a determination of the constitutional issue
by the tribunal of original jurisdiction is clearly not as great. In
such a situation, the advantages of dealing with the constitu
tional question within the administrative process are still pre
served for the litigant.
In addition, another major advantage of having Charter
issues addressed at the administrative level, that specialized
expertise may be brought to bear on the issue, is maintained.
The umpire will possess a certain insight, based upon broad
experience with respect to the legislative scheme, that will
(Continued from previous page)
determinative of a tribunal's jurisdiction, since the authority
and obligation to apply the law may be grounded elsew
here....
render his or her contribution to the determination of the con
stitutional question a valuable one. Furthermore, the nature of
the administrative process will not be compromised by the
umpire's assumption of jurisdiction over Charter issues. In
Douglas College, I alluded to the fact that there are some situa
tions where giving the tribunal the power to consider constitu
tional argument would interfere with the relatively low-cost,
specialized form of justice the tribunal is designed to give. The
sheer volume of cases that some administrative bodies are
required to hear would render the determination of constitu
tional issues highly impractical, if not impossible. The
Employment and Immigration Commission is an example of
such a body. On the other hand, a tribunal at a higher level of
the administrative scheme whose functions can be described as
being more adjudicative in nature—that is, which frequently
resolves questions of law or fact in accordance with legislative
rules or regulations—is likely to be in a better position both to
receive argument on, and to resolve constitutional questions
than a tribunal which is engaged primarily in fact finding. The
umpire fits within this latter type of tribunal.
In none of this trilogy of cases is the exact issue of
jurisdiction over the parties a matter of contention, as
it is in the case at bar. Here, the adjudicator is given
power by section 92 to adjudicate grievances, which
are defined by section 2 as brought by "employees",
who are in turn defined to exclude persons
"employed on a casual or temporary basis". By sub
section 96(2) an adjudicator is prohibited from ren
dering a decision the effect of which would be to
require the amendment of a collective agreement.
Moreover, the adjudicator's jurisdiction over the par
ties is also circumscribed by the wording of the col
lective agreement, since, as non-members of the bar
gaining unit, the applicants are not entitled to the
benefits negotiated by it.
Not only does the adjudicator lack jurisdiction over
the parties, but also, it seems, over the subject matter.
The PSSRB, on the other hand, is given plenary
powers under subsection 21(1) to "exercise such
powers and perform such duties" as are conferred or
imposed on it by the Act, "or as may be incidental to
the attainment of the objects of ... this Act." This
conferring of "incidental" powers is in my view very
significant. A broad range of powers is also conferred
on the Board throughout Part I of the Act, including
the determination of membership in a bargaining unit
under sections 33 and 31. The Board's jurisdiction is
clearly not confined as is that of an arbitrator.
Unlike the relationship between a board of referees
and an umpire explored in Tétreault-Gadoury, there
can be no appeal in such a matter as the present from
an adjudicator to the Board. Possibly, as the respon
dent suggested, a proceeding under section 34, which
may be brought "at any time," is the method to get
such a matter before the Board. Whether that is feasi
ble in the light of the Supreme Court decision in
Canada (Attorney General) v. Public Service Alli
ance of Canada, [1991] 1 S.C.R. 614 is a question
that would have to be faced? If it is not possible, it
seems to me that the majority's conclusion (per
Sopinka J., at pages 630-631) is in no way helpful to
the applicants:
...I have come to the conclusion that Parliament did not
intend to confer jurisdiction on the Board with respect to the
labour relations of employees who are not members of the
Public Service.
... The Board's function by the very words of s. 33 [now s.
34] is not to determine who is an employee but rather whether
employees who come within the definition provided, are
included in a particular bargaining unit.
If even the Board lacks jurisdiction to decide the
issue litigated here, an adjudicator would have even
less claim to such jurisdiction. In any event, whether
or not the Board has jurisdiction over the applicants
or the subject matter, it seems clear that an adjudica
tor does not. 3
2 In the case as decided by the Supreme Court there was no
issue as to unconstitutionality, but whether this is a sufficient
ground for distinction is problematical.
3 In the event that both the Board and the adjudicator were
found lacking in jurisdiction, recourse could always be had to a
declaratory action in the Trial Division.
III
In the result the application must be dismissed.
MAHONEY J.A.: I agree
STONE J.A.: I agree
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.