Legislative review of the Public Service Labour Relations Act

Guiding principles

In this document, the Public Service Labour Relations Board (“the Board”) sets out a number of proposals for legislative changes to the Public Service Labour Relations Act (“the Act”). The Board’s proposals focus on those aspects of the regulatory framework for labour relations that involve its internal governance, the management of its caseload and hearings (e.g., unnecessary constraints that affect the effectiveness or efficiency of its procedures), the appropriateness of the remedial powers of the Board and its adjudicators, and other issues of that nature.

However, to avoid compromising its neutrality, both real and perceived, the Board has refrained from presenting proposals that touch on the substantive labour relations policy underlying the Act, such as the scope of collective bargaining, the definition of employee, the right to strike, the scope of adjudicable grievances, and other like policy issues.

Part 1 - Labour relations

Subsection 22(4) - Completion of duties

22.(4) A person who ceases to be a member for any reason other than removal may, at the request of the Chairperson, within eight weeks after ceasing to be a member, carry out and complete any functions or responsibilities that the person would otherwise have had in connection with any matter that came before the Board while the person was still a member and in respect of which there was any proceeding in which the person participated as a member. For that purpose, the person is deemed to be a part time member.

22.(4) Le commissaire qui, pour tout motif autre que la révocation, cesse de faire partie de la Commission peut, sur demande du président et dans un délai de huit semaines après la cessation de ses fonctions, s’acquitter intégralement des fonctions ou des responsabilités qui auraient été alors les siennes en ce qui concerne toute affaire soumise à la Commission avant qu’il ne cesse d’y siéger et ayant déjà fait l’objet d’une procédure à laquelle il a participé en sa qualité de membre. Il est alors réputé être un commissaire à temps partiel.

[Emphasis added]

Issue

Subsection 22(4) provides that, at the Chairperson of the Board’s request, and within eight weeks after ceasing to be a member, a member may remain seized of a matter.

Such a provision is crucial for the Board’s affairs to run smoothly, but the eight-week limit makes it unrealistic and, in practice, impossible to apply. Except in very rare instances, members who have remained seized of cases after their mandates have expired have needed several additional months to complete hearings and to draft decisions. A literal application of subsection 22(4) would make members unable to continue after the statutory eight-week period, and the matter would then have to be started afresh before a different member. Indeed, if subsection 22(4) is to be read as a mandatory provision, the legal consequence of not complying with its terms might be that the member could no longer continue with the matter beyond the eight-week limitation. In many instances, such a situation could cause serious prejudice to the parties, could breach the rules of natural justice (the right to be heard) and could affect parties’ substantive rights. For example, a hearing that has lasted over two years and that has required a large amount of testimonial evidence and exhibits would have to be cancelled and restarted under a different presiding member. The parties might not be able to adduce their evidence again (witnesses disappeared, failing memory of events, etc.) and would have to incur the costs of another hearing before another member, who would be legally required to start afresh. Imposing that approach on the parties would be subject to challenge, not to mention the regrettable waste of resources for the Board and the parties.

This matter is closely linked to the Chairperson’s ability to manage the Board’s resources effectively in a manner consistent with applicable legal principles. Therefore, it should be subject to the Chairperson’s discretion and to his control and direction as the Board’s chief executive officer.

It should be noted that the Canada Labour Code (“the Code”) does not impose any time limits on how long officials, at the Chairperson’s request, may remain seized of a matter after their mandates expire.

It should also be pointed out that, while that subsection arguably applies only to members for their “Board work” (i.e., cases under Part 1 of the Act), it should also be made clear that that provision, if amended as suggested, would also apply to members acting as adjudicators under Part 2 of the Act.

Recommendation

Rectify the situation by an amendment that would delete the following words: “within eight weeks after ceasing to be a member”.

Section 31 - Composition

31. Proceedings brought before the Board under this Part are to be heard and determined by a panel of not less than three members, at least one of whom is the Chairperson or a Vice-Chairperson, or, if the Chairperson considers it appropriate in the circumstances, by a panel consisting of a single member.

31. Les affaires dont est saisie la Commission dans le cadre de la présente partie sont instruites par une formation composée d’au moins trois membres dont le président ou au moins un vice-président fait obligatoirement partie ou, si le président l’estime indiqué dans les circonstances, d’un membre unique.

Issue

The current wording of this provision is borrowed from the Canada Labour Code. The Canada Industrial Relations Board (CIRB) is referred to as “representative” in that the persons appointed to it on the recommendations of employers and unions continue to represent the interests of the communities from which they originated, subject to the rules of natural justice. That means that the CIRB generally hears matters in tripartite panels composed of a Vice-Chairperson and two members who respectively “represent” management and labour.

For the Board, although members are appointed on the recommendations of the parties, and although the number of members appointed on their recommendations must, to the extent possible, be equal, the Board is not “representative” and, once appointed, members must conduct themselves in a completely neutral and impartial manner. In practice, members sit alone in the vast majority of cases before the Board. Thus, the wording of this provision appears misleading, and it should be amended to better reflect the current practice.

Recommendation

Reverse the current wording so that it reads as follows: “Proceedings brought before the Board under this Part are to be heard and determined by a panel consisting of a single member or, if the Chairperson considers it appropriate in the circumstances, by a panel of not less than three members …”.

Section 53 (and consequentially subsection 247(1)) - Advisory board on compensation analysis and research

53. (1) The Minister shall establish an advisory board to provide advice to the Chairperson on the compensation analysis and research services provided by the Board. (2) The advisory board is to consist of a chairperson and no more than 11 other members appointed by the Minister. (3) All of the members must have knowledge or experience that will assist the advisory board to accomplish its mandate, including knowledge of or experience in compensation issues or statistics. (4) Appointments to the advisory board are to be made such that there is an equal number of members representative of the employer and of employees.

53. (1) Le ministre établit un comité consultatif chargé de conseiller le président sur les services d’analyse et de recherche en matière de rémunération offerts par la Commission. (2) Le comité est formé d’au plus douze membres — dont le président de celui-ci — nommés par le ministre. (3) Les membres doivent avoir des connaissances ou de l’expérience susceptibles d’aider le comité consultatif à accomplir sa mission, notamment des connaissances ou de l’expérience dans le domaine de la rémunération ou de la statistique. (4) Le nombre des membres qui représentent les fonctionnaires doit être égal à celui des membres qui représentent l’employeur.

Issue

One (1) advisory board has been appointed since the Act came into force in 2005. It was composed of representatives from the parties to collective bargaining in the public service, with equal numbers from each community. No advisory board has been appointed since November 2007. The experience to date has shown that the considerable work required to support the advisory board outweighs the benefits gained from it.

Our observations can be summarized as follows:

• The advisory board that was established between 2006 and 2007 comprised almost exclusively of representatives of the parties in collective bargaining. On several of the key issues, members, perhaps not surprisingly, tended to promote the positions of the organizations they were from, providing them with an additional forum to pursue their collective bargaining objectives.
• The appointment of recognized neutral and independent experts in labour relations/compensation research to the advisory board may partly address that situation. However, it should be noted that the Governor in Council has yet to pass a Remuneration Order (under section 247 of the Act) authorizing the payment of remuneration and expenses of members of the advisory board. This makes it difficult if not impossible to attract independent neutrals in the labour relations/compensation research community for appointment to the committee, as it is unlikely that those practitioners would act pro bono.
• As the meetings of the advisory board were taking place, CARS were consulting and discussing with the parties – in fact often with the same persons who sat on the advisory board - questions related to CARS’ activities and upcoming surveys; as a result, the advisory board meetings created duplication and were of questionable value.
• While the advisory board did meet a dozen times over its two-year mandate, the rapid need for CARS to meet the requirements of the last round of bargaining far outpaced any strategic discussions and potential recommendations the advisory board could have held.
• CARS' very few resources needed to be focused on its program implementation in a crucial time where the parties had very high expectations of the results, yet the required nature and speed of strategic direction required from the Advisory Board would have necessitated dedicated resources to support their research requirements.

The bilateral consultations held with some 30 parties to collective bargaining prior to the establishment of the Advisory Board yielded, in our view, more productive information to set the direction of CARS. Other fora are also available and have proven to be beneficial, such as the NJC National Conference where the Director of CARS was offered an opportunity to present CARS' overall direction and respond to questions. Should the need arise to obtain a collective assessment on certain key issues, ad hoc focus groups could be organized. Clearly, the Board recognizes the need to consult regularly with all parties in the development of its work plan, the survey methods and other matters leading eventually to the publication of its reports, and considers the parties’ ongoing input to be a key ingredient to the parties’ willingness to rely on its comparability studies in the course of their collective bargaining. In this regard, the Board has offered on a number of occasions to meet the parties collectively at their invitation to regular NJC Committee meetings. The Board also launched in early 2010, a new series of bilateral consultations with the parties, in preparation for the next compensation study.

It is also noted that the Chairperson has the authority under section 50 of the Act to engage, on a temporary basis, the services of experts to provide advice and assistance for any aspects of the Board’s mandate, including its compensation and research activities. Independent experts in compensation research and statistics could be retained under that provision as the need arises.

Recommendation

Remove the advisory board structure from the legislation and replace it with a requirement for the Chairperson to consult the parties regularly, as and how he or she deems appropriate.

Sections 135 and 160 - Applications for arbitration and conciliation

135. This Division applies to the employer and the bargaining agent for a bargaining unit whenever (a) the process for the resolution of a dispute applicable to the bargaining unit is arbitration; and (b) the parties have bargained in good faith with a view to entering into a collective agreement but are unable to reach agreement on a term or condition of employment that may be included in an arbitral award.

135. La présente section s’applique à l’employeur et à l’agent négociateur représentant une unité de négociation dans le cas où : a) d’une part, le mode de règlement des différends applicable à l’unité de négociation est le renvoi à l’arbitrage; b) d’autre part, les parties ont négocié de bonne foi en vue de conclure une convention collective, mais n’ont pu s’entendre sur une condition d’emploi qui peut figurer dans une décision arbitrale.

… 160. This Division applies to the employer and the bargaining agent for a bargaining unit whenever (a) the process for the resolution of a dispute applicable to the bargaining unit is conciliation; and (b) the parties have bargained in good faith with a view to entering into a collective agreement, but are unable to reach agreement on a term or condition of employment that may be included in a collective agreement.

… 160. La présente section s’applique à l’employeur et à l’agent négociateur représentant une unité de négociation dans le cas où : a) d’une part, le mode de règlement des différends applicable à l’unité de négociation est le renvoi à la conciliation; b) d’autre part, les parties ont négocié de bonne foi en vue de conclure une convention collective, mais n’ont pu s’entendre sur une condition d’emploi pouvant figurer dans une convention collective.

[Emphasis added]

Issue

The emphasized phrases have created problems in the practical application of the provisions authorizing the Chairperson to establish an arbitration board and to recommend the establishment of a public interest commission (PIC). The decision rendered in Professional Institute of the Public Service of Canada v. Canadian Food Inspection Agency, 2008 PSLRB 50 (judicial review application dismissed in Professional Institute of the Public Service of Canada v. Attorney General of Canada, 2009 FCA 206), deals with this issue. In that decision, the Board dismissed a bad faith bargaining complaint on the basis that, since an arbitration board had been established when the complaint was made, it necessarily implied that, given the wording of section 135, the parties were found to have negotiated in good faith. The converse of this conclusion is that an arbitration board could not be established if a bad faith bargaining complaint were pending, the two routes being mutually exclusive. Moreover, that wording could be construed as requiring the Chairperson to embark on an inquiry as to whether the parties have indeed bargained in good faith before lawfully establishing an arbitration board or a public interest commission.

The wording of the provisions in question creates undesirable confusion between the administrative mechanism for establishing an arbitration board or a PIC by the Chairperson, on the one hand, and the Board’s jurisdiction over bad faith bargaining complaints on the other. As stipulated, the Chairperson would have to be satisfied that the parties have negotiated in good faith to meet the conditions for starting the dispute resolution process set out at paragraphs 135(b) and 160(b) before an arbitration board or a public interest commission could be established. As a result, if a party alleges that the other party is acting in bad faith as a means to counter the establishment of an arbitration board or a public interest commission, the Chairperson, before establishing such a body, should hear the parties on the allegation and rule on it after hearing appropriate evidence and submissions. Yet, the Act does not provide for any procedural framework or powers to the Chairperson for that purpose, at least not expressly. Furthermore, and significantly, such a role conflicts with the possibility for the Board of being seized at the same time with a bad faith bargaining complaint dealing with the same facts, with the risk that the Chairperson and the Board panel hearing the complaint could render conflicting decisions. Lastly, one of the parties could rely on the wording to use delaying tactics by alleging bad faith on the other party’s part or by filing a complaint of bad faith bargaining to block access to the dispute resolution process. Such measures could have the effect of causing undue delays in the collective bargaining process at the dispute resolution stage, which is not in the interest of the parties, of sound collective bargaining or of the integrity of the labour relations system.

As an example, the Canada Labour Code contains a similar provision, which reads as follows:

71. (1) Where a notice to commence collective bargaining has been given under this Part, either party may inform the Minister, by sending a notice of dispute, of their failure to enter into, renew or revise a collective agreement where

(a) collective bargaining has not commenced within the time fixed by this Part; or

(b) the parties have bargained collectively for the purpose of entering into or revising a collective agreement but have been unable to reach agreement.

The statutory requirement of having negotiated in good faith does not appear in that provision. It is a much preferable approach as it clarifies the respective roles of the Minister (that of the Chairperson under the Act) and the CIRB, giving the CIRB exclusive authority to deal with allegations of bad faith bargaining, and does not stand as a potential hurdle to the conciliation process under the Code.

Recommendation

Amend paragraphs 135(b) and 160(b) by removing the words “in good faith”.

Sections 136, 140, 161 and 167 - Time limits within which an arbitration board and public interest commission may be established

136. (1) Either party may, by notice in writing to the Chairperson, request arbitration in respect of any term or condition of employment that may be included in an arbitral award. (2) The request may be made (a) at any time, if the parties have not entered into a collective agreement and no request for arbitration has been made by either party since the commencement of the bargaining; or (b) not later than seven days after a collective agreement is entered into by the parties, in any other case. (3) The party requesting arbitration must (a) specify in the notice every term or condition of employment in respect of which it requests arbitration and its proposals concerning the award to be made in respect of that term or condition; and (b) annex to the notice a copy of the most recent collective agreement entered into by the parties. (4) On receiving the notice, the Chairperson must send a copy to the other party. (5) The other party may, within seven days after receiving the copy, by notice in writing to the Chairperson, request arbitration in respect of any other term or condition of employment that may be included in an arbitral award and that remained in dispute when the first request for arbitration was made.	136. (1) L’une ou l’autre partie peut, par avis écrit adressé au président, demander le renvoi à l’arbitrage d’un différend sur une condition d’emploi qui peut figurer dans une décision arbitrale. (2) La demande d’arbitrage peut intervenir: a) à tout moment dans le cas où aucune convention collective n’a été conclue et aucune autre demande d’arbitrage n’a été présentée par l’une ou l’autre partie depuis le début des négociations; b) au plus tard sept jours après la conclusion d’une convention collective dans les autres cas. (3) La partie qui demande l’arbitrage : a) précise dans l’avis la condition d’emploi à l’égard de laquelle elle demande l’arbitrage et ses propositions quant à la décision arbitrale qui doit être rendue en l’espèce; b) annexe à l’avis une copie de la dernière convention collective conclue par les parties. (4) Sur réception de l’avis, le président en envoie copie à l’autre partie. (5) Le destinataire de cette copie peut, dans les sept jours suivant sa réception, par avis adressé au président, demander l’arbitrage à l’égard de toute autre condition d’emploi qui peut figurer dans une décision arbitrale et qui restait en litige au moment où la demande d’arbitrage mentionnée au paragraphe (1) a été faite.
… 140. (1) If either party requests that an arbitration board consisting of three members be established, the Chairperson must, by notice, require each of the parties, within seven days after receipt of the notice, to nominate a person to be a member of the arbitration board, and on receipt of the nominations, the Chairperson must appoint the nominated persons as members of the arbitration board.	… 140. (1) Si l’une ou l’autre partie demande que le conseil d’arbitrage soit formé de trois membres, le président adresse à chacune des parties un avis lui demandant de proposer, dans les sept jours suivant la réception de l’avis, un candidat pour le conseil; il nomme les personnes ainsi proposées.
… (3) Within five days after the day on which the second member is appointed, the two members must nominate a third person who is eligible for appointment and ready and willing to act, to be chairperson and third member of the arbitration board, and the Chairperson must appoint that person as the chairperson and third member of the arbitration board.	… (3) Dans les cinq jours qui suivent la date de nomination de la deuxième personne, les deux personnes nommées proposent, pour le poste de membre et président du conseil d’arbitrage, le nom d’une troisième personne admissible et disposée à agir en cette qualité. Le président entérine leur choix en nommant cette personne président du conseil.
… 161.(4) The other party may, within seven days after receiving the copy, by notice in writing to the Chairperson, request conciliation in respect of any other term or condition of employment that may be included in a collective agreement and that remained in dispute when the first request for conciliation was made.	… 161.(4) Le destinataire de cette copie peut, dans les sept jours suivant sa réception, par avis adressé au président, demander la conciliation à l’égard de toute autre condition d’emploi qui peut figurer dans une convention collective et qui restait en litige au moment où la demande de conciliation mentionnée au paragraphe (1) a été faite.
… 167. (1) If either party requests that the public interest commission consist of three members, the Chairperson must, by notice, require each of the parties, within seven days of its receipt, to nominate a person to be a member of the commission, and on receipt of the nominations, the Chairperson must recommend to the Minister the appointment of the nominated persons as members of the commission. The Minister must appoint those persons without delay.	… 167. (1) Si l’une ou l’autre des parties demande que la commission de l’intérêt public soit formée de trois membres, le président adresse à chacune des parties un avis lui demandant de proposer, dans les sept jours suivant sa réception, un candidat; il recommande ensuite au ministre de nommer les personnes ainsi proposées, ce que ce dernier fait sans délai.
… (3) Within five days after the day on which the second member is appointed, the two members must nominate to be chairperson and third member of the public interest commission a person from the list prepared under subsection 165(1), and the Chairperson must recommend to the Minister the appointment of that person. The Minister must appoint the person without delay as chairperson and third member of the commission.	… (3) Dans les cinq jours qui suivent la date de nomination de la deuxième personne, les deux personnes nommées proposent, pour le poste de membre et président de la commission de l’intérêt public, le nom d’une personne figurant sur la liste établie conformément au paragraphe 165(1). Le président recommande ensuite au ministre de nommer la personne ainsi proposée, ce que ce dernier fait sans délai.

[Emphasis added]

Issue

The Act sets out very short time limits within which the parties must act when reaching the dispute resolution process stage of their collective bargaining efforts, e.g., for providing the Chairperson with the names of their nominees (seven calendar days). Likewise, the nominees have a short timeline (five calendar days) within which to agree to a chairperson of the arbitration board or a public interest commission, as the case may be. The statute does not provide for the possibility of an extension of those time limits, which have proven to be at times unworkable despite the best efforts of the parties. The question of the legal consequence of a party’s failure to comply with the time limit has arisen on a number of occasions. Those time limits are set out as an obvious indication of Parliament’s intent to ensure that the third-party dispute resolution process is dealt with expeditiously. However, the task of finding qualified and available persons to act as party nominees or as chairpersons of panels necessarily implies practical and logistical considerations, which are often outside the parties’ control. Experience has shown that, in spite of the parties’ best efforts, it is not always possible to comply with the time limits, and the parties risk losing their rights if a court were to interpret the time limits as mandatory (as opposed to only directory). While the objective of expeditiousness is important, the integrity of the third-party resolution system would not be compromised if the Chairperson had the discretion to extend the time limits on request from a party, where appropriate. That power would ensure that practical constraints affecting the parties’ actions under those provisions would be taken into consideration while ensuring that the process continued to move forward under the direction of the Chairperson.

The same considerations hold true for other time limits prescribed in that division of the Act, such as referring additional matters to arbitration or conciliation.

Recommendation

Amend sections 136, 140, 161 and 167 to include the power for the Chairperson to extend the time limits that those sections set out.

Sections 141 and 168 and subsection 182(6) - Eligibility to serve as a member of an arbitration board, a public interest commission or ADR arbitrator

141. No person may act as a member of an arbitration board in respect of a matter referred to arbitration if the person has, at any time during the six months before the person’s date of appointment, acted in respect of any matter concerning employer-employee relations as counsel or agent of the employer or of any employee organization that has an interest in the matter referred to arbitration.	141. Ne peut être nommée à titre de member d’un conseil d’arbitrage la personne qui, dans les six mois précédant la nomination, a fait fonction de conseiller juridique ou de mandataire de l’employeur ou de toute organisation syndicale intéressée en matière de relations de travail.
… 168. No person may act as a member of the public interest commission in respect of a matter referred to conciliation if the person has, at any time during the six months before their date of appointment, acted in respect of any matter concerning employer-employee relations as counsel or agent of the employer or of any employee organization that has an interest in the matter referred to conciliation.	… 168. Ne peut être nommée à titre de membre d’une commission de l’intérêt public la personne qui, dans les six mois précédant la nomination, a fait fonction de conseiller juridique ou de mandataire de l’employeur ou de toute organisation syndicale intéressée en matière de relations de travail.
… 182.(6) A person is not eligible to be appointed as a person who makes a final and binding determination under this section if the person has, at any time during the six months before their date of appointment, acted in respect of any matter concerning employer-employee relations as solicitor, counsel or agent of the employer or of any employee organization that has an interest in the term or condition referred for final and binding determination.	… 182.(6) Ne peut être saisie d’un renvoi au mode substitutif de règlement des différends la personne qui, dans les six mois précédant la nomination, a fait fonction de conseiller juridique ou de mandataire de l’employeur ou de toute organisation syndicale intéressée en matière de relations de travail.

Issue

Applying the conditions set out under those provisions disqualifying a person proposed by either party gives rise to an inconsistency that should be remedied. The specific legislative objectives of the two provisions are not clear, although it can be presumed that Parliament’s intention in enacting those provisions (in 1967) was presumably to avoid conflict of interest situations. However, the conditions seem to differ in scope depending on whether they are applied to the employer or the bargaining agent. Why is a person who represented any bargaining agent in the previous six months excluded from appointment when, on the employer side, the exclusion applies only to an association with “the employer”, i.e., the party to the dispute that is the subject of the arbitration or conciliation, and not to other employers subject to the legislation? What is meant by “… employee organization that has an interest …” in this context?

These provisions appeared in the very first enactment of the Public Service Staff Relations Act (PSSRA) in 1967, when the Treasury Board was the employer for almost all public servants and when there were only a few separate employers for a negligible number of employees. Today’s situation is entirely different, and it would be desirable to re-establish a balance in the formulation of the grounds for exclusion as a member of an arbitration board or a public interest commission based on his or her prior association with one of the parties to the dispute.

The notion of “… employee organization that has an interest …” raises interpretation problems that create uncertainty about eligibility and make it difficult for the Chairperson to apply the provision when considering names of persons submitted by the parties. How direct should that interest be to justify an exclusion from eligibility? In our view, the objective of this type of provision should be to ensure that there is no conflict of interest between a person’s allegiance to either party to the dispute and that person’s obligation to act with a certain degree of neutrality and independence relative to the parties when the arbitration or conciliation process takes place. In other words, the original objective is likely to avoid situations where a person could be seen as “judge and party” in relation to the issues in dispute. Therefore, the prohibition in question should address the association with the parties to the dispute that is being referred to arbitration or conciliation, rather than a broader association with any parties that are subject to the Act.

The second issue that arises under these provisions is the possibility that the parties agree on full-time Board members to act as either sole arbitrators, chairpersons of arbitration boards, single-member public interest commissions or chairpersons of public interest commissions. Nothing in the Act appears to explicitly rule out that possibility, although it could be argued that such an appointment would be “inconsistent with [their] functions” under paragraph 18(1)(d); a full-time appointment to the Board implies that full-time members will dedicate their time exclusively to matters over which the Board has statutory jurisdiction under Parts 1, 2 and 3 of the Act, as assigned by the Chairperson under sections 44 and 223. In that context, being appointed by the parties without the Chairperson’s authorization would conflict with the Chairperson’s explicit duty under those sections to assign cases to Board members. As a result, it would also affect his or her ability to manage the Board’s resources efficiently to deal with its caseload, which is composed of matters over which the Board and Board members have a statutory duty to act, once they are assigned.

Ineligibility to act for full-time Board members would also be consistent with the legislative history of the PSSRA, specifically amendments brought in 1993 that removed the interest arbitration function from the Public Service Staff Relations Board, where it had resided until then.

Recommendation

Amend sections 141 and 168 and subsection 182(6) to render ineligible persons who have acted as “… counsel or agent, in respect of any matter concerning employer-employee relations, for the employer or the bargaining agent, during the six months before …”.

Amend sections 141 and 168 and subsection 182(6) of the Act to state explicitly that full-time Board members are not eligible for appointment to an arbitration board or to a public interest commission or in connection with an alternate dispute resolution process under those sections.

Division 10 (sections 162, 163, 166, 167 and 170) - Process for establishing public interest commissions

162. (1) Subject to subsection (3), on receiving a request for conciliation, the Chairperson must recommend to the Minister that a public interest commission be established for conciliation of the matters in dispute.

162. (1) Sous réserve du paragraphe (3), sur réception de la demande de conciliation, le président recommande au ministre l’établissement d’une commission de l’intérêt public chargée de la conciliation du différend.

[Emphasis added]

Issue

The PSSRA gave the Chairperson of the Public Service Staff Relations Board the exclusive authority to establish both arbitration and conciliation boards. The Act replaced conciliation boards with public interest commissions, comprising either one or three members. Although the Chairperson has retained the authority to establish arbitration boards under the Act, he or she only has the authority to make recommendations to the designated minister with respect to establishing a public interest commission and appointing its member(s).

That said, the Act sets out a very strict framework for the minister’s authority to make appointments, to such an extent that the minister has very little discretion about the choice of the person to be appointed. As a result, the ministerial authority under that division of the Act is more an administrative formality than a genuine appointment-making authority. First, the Chairperson decides whether to establish a public interest commission. Second, the minister must accept the Chairperson’s recommendation to appoint the two members proposed by the parties to represent their interests on the public interest commission if they have requested a three-member commission. Similarly, the minister must appoint the person chosen by the parties from the list prepared by and recommended by the Chairperson. Lastly, when the parties (or their member-representatives) cannot agree on the chairperson of a commission, the Chairperson recommends that the minister appoint a particular person from a list that he or she (the Chairperson) has established, presumably after having applied his or her contextual knowledge of the issues in dispute and the particular skill set and availability of that particular individual. Although the minister is not required to endorse the Chairperson’s recommendation — one may wonder on what grounds the minister could refuse to endorse the Chairperson’s recommendation — the only other persons eligible for appointment are those whose names appear on the Chairperson’s list. That results in the minister having, in practical terms, virtually no discretion in the process.

The role assigned to the minister may also raise concerns about the perception of the Board’s independence from the government, which is a party before the Board. A negligible number of PICs have been established since 2005 and, in light of the Expenditure Restraint Act, 2009, it is unlikely that very many will be established before 2012, in connection with the next round of collective bargaining. To date, no concerns have been raised about the integrity of the process, given the manner in which ministerial responsibilities have been exercised and the responsiveness of the minister to the Chairperson’s requests for appointments. The appropriateness of such a structure can nonetheless be questioned, as it may create a perception of undue involvement by a member of Cabinet in what is clearly meant to be an impartial and independent dispute resolution process under the Act to which the government is a party as employer. There is no doubt that the need to preserve such independence was the policy rationale underlying the conciliation board process under the PSSRA, from which the public interest commission process in the PSLRA differs only marginally.

This concern is also, without a doubt, the reason that the minister’s appointment authority is contained in such a strict framework, as explained earlier. However, the process, with the added bureaucratic layers, represents an unnecessary administrative burden both on the Board and on the minister’s staff for no apparent benefit, and it could cause undue delays. Such matters should and always have been dealt with expeditiously, given the oft-strained environment that prevails when the parties have reached an impasse in their negotiations and are looking for third-party assistance to resolve their dispute, failing which strike action may occur. Ironically, establishing arbitration boards, which have the authority to impose a decision on the parties in their disputes, is a function that falls under the Chairperson’s exclusive authority, and hence, he or she is able to carry out that function expeditiously.

Recommendation

Allow the Chairperson, rather than the designated minister, to appoint the members of a public interest commission, in the same way that the Act confers that authority on the Chairperson for members of arbitration boards.

Part 2 - Grievances

General authority of an adjudicator

Issue

Section 36 of the Act confers on the Board so-called ancillary powers and functions over and above the powers and functions specifically laid out in the statute that enable it to remedy violations of the Act under Part 1 in a way that is consistent with its purpose and objects. It would be appropriate in our view to have Part 2 of the Act give adjudicators a similar authority. Such a provision would supplement adjudicators’ remedial powers by enabling them to dispose of a matter in full in situations where the Act may not be explicit, through such means as making orders that the adjudicator considers warranted to bring about an appropriate remedy based on his or her findings, consistent with the purpose and objectives of the Act.

Recommendation

Amend section 226 along the following lines:

Powers

X. An adjudicator may exercise the powers and perform the functions that are conferred or imposed on him or her by this Part, or as are incidental to the attainment of the objects of this Act, including the making of orders requiring compliance with this Act or regulations made under it.

Subsection 208(2) - The right to present a grievance and the existence of another avenue of redress

208.(2) An employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act.

208.(2) Le fonctionnaire ne peut présenter de grief individuel si un recours administratif de réparation lui est ouvert sous le régime d’une autre loi fédérale, à l’exception de la Loi canadienne sur les droits de la personne.

[Emphasis added]

Issue

The Board would like to point out a discrepancy between the French and English versions of subsection 208(2).

Although the English version provides that a grievance may not be presented where another administrative process is provided under any Act of Parliament (i.e., including the Act), the French version provides that a grievance may not be presented where an administrative procedure for redress is provided under another (“une autre”) Act of Parliament.

This situation creates a legal ambiguity relating to the appropriate redress mechanism open to an employee. For example, in situations that could give rise to the presentation of either a grievance or a complaint by an employee under the Act, the English version would require that the complaint mechanism be used exclusively, and no grievance could be presented (see Ryan v. Canada (Attorney General), 2005 FC 65). The French version, on the other hand (“une autre loi”), would seem to make those two avenues of redress concurrent (grievance or complaint).

Recommendation

This anomaly should be corrected, but as it raises a substantive question as to the scope of the grievance under the Act, the Board will offer no recommendation.

Sections 209, 216 and 221 (and consequentially 219) - The jurisdiction of an adjudicator or the Board to hear an allegation of non-compliance with a settlement agreement relating to an adjudicable grievance or a matter pending before the Board

Issue

Sections 209, 216 and 221 of the Act define the types of grievances that may be referred to adjudication. The Federal Court has interpreted those sections restrictively to define the jurisdiction of adjudicators.

With the advent of mediation, a number of grievances are being settled by the agreement of the parties. From time to time, adjudicators are asked to hear allegations that a party has failed to abide by the terms of a settlement agreement.

Although the Act encourages parties to voluntarily resolve their disputes themselves as early as possible, it does not expressly state that adjudicators may decide disputes relating to the enforcement of settlement agreements. As a result, in Attorney General of Canada v. Amos, 2009 FC 1181, the Federal Court overturned a decision of an adjudicator who took jurisdiction to examine the allegation by one party that the terms of settlement of a grievance reached during the course of the hearing before that adjudicator had not been fulfilled. Yet, over the past few decades, the Supreme Court of Canada has encouraged labour relations decision makers to exercise their jurisdiction over matters that either directly or inferentially arise from the employment relationship. The matter is presently pending before the Federal Court of Appeal and will be subject to further judicial determination.

Hence, it is for greater certainty that specifically spelling out in the Act an adjudicator’s jurisdiction over disputes relating to the enforcement of settlement agreements of grievances that may be referred to adjudication ought to be considered. Such an amendment would foster the fair, credible and efficient resolution of those disputes, which is one of the purposes stated in the preamble of the Act, and would support the mediation philosophy promoted by the Act and the Board. While not mandatory, case mediation is strongly encouraged by the Board and by adjudicators up to the hearing, and adjudicators make themselves available to assist the parties should they wish to engage in settlement discussions, even after the hearing has begun. It is feared that the current state of the law regarding the enforceability of settlement agreements might result in some parties not willing to risk resolving the case by agreement for fear of losing their right to the redress procedures set out in the Act and ending up with no meaningful redress mechanism to enforce their legal rights. The Board has been dealing with a growing caseload over the last 5 years (from 1500 active cases in 2004-05 to approximately 5000 today), and over 60% of the cases closed in any given year have been resolved by “out of court” settlements. Should the parties opt for the full hearing and decision process out of fear of the legal risks resulting from the inability of adjudicators or the Board to remain or become seized with matters related to the implementation of settlement agreements, the Board is concerned that its ability to deal effectively and expeditiously with its caseload in the future may be jeopardized, at least with its current level of resources and number of Board members. Therefore, the situation raises an important issue for the Board about the efficient administration of the Act, depending on whether the Amos judgment will have a chilling effect on the parties’ disposition to resolve cases by way of voluntary settlement in the future.

It should be noted that no judicial determination has yet been made about the Board’s authority under Part 1 of the Act to become seized with a dispute arising out of the implementation of a settlement agreement of a matter arising under that Part. Given the difference in the statutory framework set out in Parts 1 and 2, it may be that the principles enunciated in Amos (Federal Court) are not applicable to the Board acting in matters arising under Part 1. Nevertheless, and for greater certainty, the ability for the Board to deal with difficulties arising from the implementation of settlement agreements of complaints and other proceedings under Parts 1 and 3 should also be expressly stated.

In Amos v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 74, the adjudicator highlighted as follows the policy reasons in support of such an amendment:

…

[115]  There are a number of practical policy reasons why empowering an adjudicator to determine settlement-agreement disputes (where the subject matter of the original grievance falls under subsection 209(1) of the new Act) is a preferable approach. First and foremost, the approach supports the mediation process and the objects of the new Act to provide fair, credible and efficient dispute resolution. It addresses a primary concern about settlement agreement enforceability that might otherwise cause some parties not to use mediation and to take their original dispute instead through the full process of adjudication to a final decision. It enhances the credibility of the system by giving substance to the expectation that undertakings made to settle a grievance will be respected.

[116]   The approach eliminates the need to file a new grievance to deal separately with an issue of non-compliance. By doing so and by supporting mediation processes that can shorten the dispute resolution process, the approach contributes to greater problem-solving efficiency. The approach is also equitable in that it would appear to open the possibility that both parties can have a settlement-agreement dispute heard by an adjudicator. Where a grievance has been properly referred to adjudication and then settled, there would appear to be no barrier to the respondent, as a party to that grievance, referring a compliance issue back to the adjudicator…

…

Validity and binding effect of settlement agreements

A second but related issue is the ability of the Board and an adjudicator to determine the legal validity and binding effect of a settlement agreement reached by the parties over matters referred to the Board or to adjudication. Settling a matter results in the Board or adjudicator ceasing to be seized of the matter, particularly if the party has in fact withdrawn the complaint, application or grievance. It is of public interest that the Board or adjudicator be capable of dealing with a claim by one of the parties that the settlement agreement that resulted in the Board or adjudicator losing jurisdiction over the matter is invalid under the common-law rules of contracts. For example, it would in our view be offensive to the redress framework set out in the Act and the purpose of the statute to accept that a settlement reached under duress or incapacity could nevertheless be held legally binding on the Board or adjudicator in a way that deprives it or him or her of jurisdiction to remedy the situation and affirm its or his or her original jurisdiction over the subject matter. Our view is that it is preferable that those questions be determined by the Board or adjudicator rather than by the Courts, to avoid the potential of bifurcated processes.

While the Board and adjudicators have consistently held that they had jurisdiction to rule on the legal validity of a settlement agreement between the parties, it would be appropriate to state it expressly in the Act.

Recommendation

For the reasons set out above, provide explicitly for the jurisdiction of an adjudicator and the Board over disputes relating to the validity, the binding effect and the enforcement of settlement agreements of adjudicable grievances and of complaints and applications filed with the Board.

Section 226 - Pre-hearing conferences

226. (1) An adjudicator may, in relation to any matter referred to adjudication, (a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner as a superior court of record; (b) order that a hearing or a pre-hearing conference be conducted using a means of telecommunication that permits the parties and the adjudicator to communicate with each other simultaneously; …

226. (1) Pour instruire toute affaire dont il est saisi, l’arbitre de grief peut : a) de la même façon et dans la même mesure qu’une cour supérieure d’archives, convoquer des témoins et les contraindre à comparaître et à déposer sous serment, oralement ou par écrit; b) ordonner l’utilisation de moyens de télécommunication permettant aux parties et à l’arbitre de grief de communiquer les uns avec les autres simultanément lors des audiences et des conférences préparatoires; …

223.(3) The Chairperson may, at any time after receipt of the notice, direct the parties to attend a conference in order to attempt to settle or simplify the issues in dispute.

223.(3) Après réception de l’avis, le président peut ordonner aux parties de participer à une réunion en vue de régler ou de simplifier les questions en litige.

Issue

A reading of the Act appears to result in adjudicators not having the authority to order or direct that a pre-hearing conference be held, unlike Board members when they deal with matters before the Board under paragraph 40(1)(b). Yet, they are the same persons acting in a different capacity. Such a power is arguably conferred on the Chairperson by subsection 223(3) of the Act and does not appear in the list of an adjudicator’s powers set out in section 226, particularly when those powers are mirrored against similar powers set out in subsection 40(1).

It would be desirable for adjudicators to have such an authority because they are in the best position to determine if a pre-hearing conference is needed when they are seized of a grievance and after they have reviewed the file. In practice, the need for a pre-hearing conference in a given matter is determined by the member-adjudicator, who must then obtain the approval of the Chairperson (subsection 223(3)) or of a Vice-Chairperson to whom the Chairperson has delegated that authority under section 45 of the Act. This results in a rather cumbersome process for no obvious reason. In fact, it has been the practice for the Chairperson to generally authorize members acting as adjudicators to order pre-hearing conferences once they are seized of a case, as a means to efficiently manage upcoming hearings.

Recommendation

Amend the Act to give adjudicators the authority to order pre-hearing conferences, along the lines of paragraph 40(1)(b) of the Act.

Sections 40 and 226 - Powers of the Board and adjudicators - Ability to examine a document over which a party claims solicitor-client privilege

The question of whether the Board or an adjudicator has jurisdiction to examine, at least in a prima facie manner, the validity of a claim by a party that a document is protected under the solicitor-client privilege arises from time to time, such as recently in Quadrini v. Canada Revenue Agency and Hillier, 2009 PSLRB 104. In that decision, the Board concluded that, as a tribunal exercising quasi-judicial functions, it had the power to determine whether solicitor-client privilege applied to a particular document. The Board ordered the respondents to produce an affidavit on the nature of the document and on the grounds for claiming solicitor-client privilege. The decision is presently under judicial review before the Federal Court of Appeal.

The Board wishes to stress that it views the ability to ascertain the existence of a proper foundation to a claim of solicitor-client privilege as an important power for ensuring a fair, full and comprehensive disposition of all matters before the Board or an adjudicator. While such a power has traditionally been exercised by the Courts, the quasi-judicial nature of the proceedings before the Board or an adjudicator warrants that they have the ability to do so as part of their powers over the conduct of hearings and the admissibility of evidence in determining the matters before them. Having such a power avoids the likelihood of bifurcated processes before the Courts to determine such a question and supports the efficient provision of administrative justice under the Act. Those types of decisions and rulings made by the Board or an adjudicator are of course subject to judicial review, undoubtedly on a correctness standard of review.

The Federal Court of Appeal will be called on to rule on the legality of the Board’s assumption of jurisdiction over this question under the current legislative framework in Quadrini. It may be that no modification to the Act is required and that the Board’s decision will be allowed to stand. However, given the significance of such a power in our judicial context and tradition, it could be advisable to achieve greater certainty by an amendment to the Act that would expressly recognize the power of the Board or an adjudicator to determine whether solicitor-client privilege applies to a particular document.

Paragraphs 223(2)(a), (b) and (c) (and consequently the definition of “adjudicator” in subsection 2(1), section 224, subsections 228(3) and (4), and paragraphs 238(a) and (b))

223.(2) On receipt of the notice by the Board, the Chairperson must (a) if the grievance is one arising out of a collective agreement and an adjudicator is named in the agreement, refer the matter to the adjudicator; (b) if the parties have selected an adjudicator, refer the matter to the adjudicator; (c) if a board of adjudication has been requested and the other party has not objected in the time provided for in the regulations, establish the board and refer the matter to it; and (d) in any other case, refer the matter to an adjudicator designated by the Chairperson from amongst the members of the Board.

223.(2) Sur réception de l’avis par la Commission, le président : a) soit renvoie l’affaire à l’arbitre de grief désigné dans la convention collective au titre de laquelle le grief est présenté; b) soit, dans le cas où les parties ont choisi un arbitre de grief, renvoie l’affaire à celui-ci; c) soit institue, sur demande d’une partie et à condition que l’autre ne s’y oppose pas dans le délai éventuellement fixé par règlement, un conseil d’arbitrage de grief auquel il renvoie le grief; d) soit, dans tout autre cas, renvoie le grief à un arbitre de grief qu’il choisit parmi les membres de la Commission.

Issue

The practice of the parties and the Board over the past 43 years (since the enactment of the PSSRA in 1967) has consistently been to assign references to adjudication to Board members, pursuant to paragraph 223(2)(d). Where the Act presents that option as a “default”, the long-established practice of the parties and of the Board has been to consider this approach as the most appropriate manner in which to deal with grievance adjudication. One of the three-pronged mandates Parliament expressly conferred on the Board under the Act is the provision of “adjudication services”, which includes matters arising under Part 2 of the Act, in other words, grievance adjudication. The Board receives budgetary appropriations to support that mandate. In fact, adjudicating grievances represents the vast majority of the Board’s caseload. The parties have recognized the benefits of having such an institutional approach to the adjudication process, which ensures a degree of consistency in the jurisprudence, policies and practices of the Board in that area. Therefore, the continued usefulness of paragraphs (a) and (b) should be questioned.

Tripartite adjudication boards

The second issue relates to the possibility for a party to request the establishment of a tripartite adjudication board, as provided under paragraph (c). It would be appropriate to consider eliminating the board of adjudication. Boards of adjudication have been an option for the parties since 1967, but there is no sign that the parties ever expressed an interest in availing themselves of that possibility. From a cost standpoint, and given the additional procedural and logistical requirements involved, they no longer seem relevant. Parties in the private sector were often resorting to tripartite adjudication boards to deal with their grievance arbitrations in the 1960s and 70s, and no doubt that was why the PSSRA replicated that possibility at that time. However, that practice is also disappearing in the private sector. As mentioned earlier, the practice under which the Chairperson assigns grievances to Board members hearing the matter as single adjudicators has been applied consistently since the original enactment of the PSSRA in 1967 and should be the only avenue for the grievance adjudication process.

Recommendation

Codify the long-established practice of the Chairperson appointing Board members to hear grievances as the sole mechanism to deal with grievances referred to adjudication.

Section 234 - Filing in Federal Court

234. For the purpose of enforcing an adjudicator’s order, any person who was a party to the proceedings that resulted in the order being made may, after the day provided in the order for compliance or, if no such day is provided for, after 30 days have elapsed since the day the order was made, file in the Federal Court a copy of the order that is certified to be a true copy, and an order so filed becomes an order of that Court and may be enforced as such.

234. Toute partie à l’affaire qui a donné lieu à l’ordonnance peut, après la date d’exécution qui y est fixée ou, à défaut d’une telle date, après un délai de trente jours suivant la date de l’ordonnance, déposer à la Cour fédérale une copie certifiée conforme du dispositif de l’ordonnance. En vue de son exécution, celle-ci, dès le dépôt de la copie certifiée conforme, est assimilée à une ordonnance rendue par la Cour fédérale.

… 52. (1) The Board must, on the request in writing of any person or organization affected by any order of the Board, file a certified copy of the order, exclusive of the reasons for the order, in the Federal Court, unless, in its opinion …

… 52. (1) Sur demande écrite de la personne ou de l’organisation touchée, la Commission dépose à la Cour fédérale une copie certifiée conforme du dispositif de l’ordonnance sauf si, à son avis …

[Emphasis added]

Issue

The French and English versions of section 234 do not have the same effect. While the French version provides for the filing in Federal Court of the dispositive part (“le dispositif”) of the order (same wording as subsection 52(1)), the English version suggests that the entire order (including the reasons) is to be filed, particularly when contrasted with the text of subsection 52(1).

Recommendation

Correct the apparent discrepancy between the French and English versions of section 234 so as to make clear that only the order (“le dispositif”), without the reasons, is to be filed in the Federal Court.

Section 235 - Adjudication expenses

235. (1) If an aggrieved employee is not represented in the adjudication by a bargaining agent, the costs of the adjudication are to be borne by the Board.	235. (1) Si le fonctionnaire ayant présenté le grief n’est pas représenté dans le cadre de la procédure d’arbitrage par un agent négociateur, la Commission supporte les frais d’arbitrage.
(2) If an aggrieved employee is represented in the adjudication by a bargaining agent, the bargaining agent is liable to pay and must remit to the Board any part of the costs of the adjudication that may be determined by the Executive Director of the Board with the approval of the Board.	(2) Dans le cas contraire, l’agent négociateur est tenu de payer à la Commission la partie des frais d’arbitrage déterminée par le directeur général de la Commission avec l’approbation de celle-ci.
(3) Any amount that by subsection (2) is payable to the Board by a bargaining agent may be recovered as a debt due to Her Majesty in right of Canada. The bargaining agent is deemed to be a person for the purposes of this subsection.	(3) Toute somme que l’agent négociateur est tenu de payer à la Commission aux termes du paragraphe (2) constitue une créance de Sa Majesté du chef du Canada et peut être recouvrée à ce titre. L’agent négociateur est réputé être une personne pour l’application du présent paragraphe.

Issue

This section should be repealed, as it creates an inequitable situation between the parties. The Board has never applied it since its founding in 1967, no doubt because doing so would jeopardize the perception of its neutrality. As mentioned earlier, the Board is funded through budgetary appropriations to support its mandate, which includes matters arising under Part 2 of the Act. If that section is to remain in the Act, it should be amended to provide authority to the Board to recover any part of the costs of an adjudication equally from all parties involved in the adjudication process.

Recommendation

Repeal or modify section 235 such that the Board’s authority to recover any part of the costs of an adjudication should apply equally to all parties.

Extension of time limits for presenting a grievance or for referring it to adjudication

Issue

The ability to extend time limits in the interest of fairness is an important feature of any redress system, in the spirit of avoiding form taking precedence over substantive rights. Paragraph 61(b) of the Public Service Labour Relations Board Regulations (“the Regulations”) provides that the Chairperson may extend the time for presenting a grievance at any level of the grievance process or for referring a grievance to adjudication. The Chairperson may delegate that authority, but only to a Vice-Chairperson, pursuant to section 45 of the Act.

Why the Chairperson and not the Board, as it was under the P.S.S.R.B. Regulations and Rules of Procedure, 1993 (“the former Regulations”)? Paragraph 61(b) was enacted because the Act, unlike the PSSRA, confers on the Chairperson the responsibility for administering the grievance adjudication system (section 223 and following). Under the PSSRA, the Board administered the grievance adjudication system, and section 63 of the former Regulations logically conferred on the Board the authority for extending the time for presenting a grievance and for referring it to adjudication. Accordingly, any member of the Board could have been assigned and could have disposed of an application. It also meant that the Board member could have been seized of both the application to extend the time (as a member of the Board) and the grievance itself (as an adjudicator). The two issues could then have been dealt with as part of the same hearing and decision, taking into account facts that may have been common to the preliminary question of timeliness and the merits of the grievance. That framework allowed for a more efficient management of cases, particularly those that required travel outside Ottawa.

When the Regulations were drafted in 2004 in the spirit of replicating, to the extent possible, section 63 of the former Regulations, it was concluded that, because the Board’s role in the administration of the grievance adjudication system had been conferred on the Chairperson, the provision conferring on the Board the power to extend the time for presenting a grievance could not be re-enacted. As a result, any power to extend the time, by necessity, had to be given to the Chairperson in light of his or her responsibilities for the adjudication process set out in the Act.

Under the new framework, applications for extensions of time must be dealt with by the Chairperson or a delegated Vice-Chairperson. The situation is not efficient from an administrative standpoint and places undue constraints on the efficient use of Board resources. The principles of law that apply to applications for an extension of time are not overly complex and are clearly established in the case law, and there is no reason for the Chairperson or one of the three Vice-Chairpersons alone to be empowered to deal with them. Administratively, the situation may require two separate hearings to deal with the application and the grievance should the application be granted (which is not efficient, especially for cases outside Ottawa). Alternatively, to avoid such a bifurcated process, the Chairperson must consider assigning the application for an extension and the grievance itself to a Vice-Chairperson so that the two matters might be dealt with simultaneously by the same person, should the application for an extension of time be granted. That places unnecessary constraints on the Chairperson in assigning cases to Board members. As a result, it removes a great deal of the Chairperson’s flexibility in managing the Board’s grievance caseload.

In the final analysis, it would make good practical sense to confer the authority to extend time limits for the presentation of a grievance (at any step) and its referral to adjudication, on an adjudicator as part of his or her preliminary jurisdiction to deal with the grievance. At the present time, if an objection is raised on the timeliness of a grievance, an adjudicator can declare only that a grievance has or has not been presented within the applicable time limits. In the latter eventuality, the adjudicator has no authority to grant relief to remedy the irregularity, even where such a relief could very well be appropriate; the matter must be referred to the Chairperson as an application for an extension of time. It clearly results in a cumbersome and protracted process that should be avoided in a labour relations context.

Recommendation

Amend the legislation to allow an adjudicator to extend the time limits set out in the grievance procedure contained in a collective agreement or in the Regulations and for referring a grievance to adjudication.

Section 237 - More permissive regulation-making provision (new)

Issue

In order to give the Board the ability to make regulations to deal with situations that may arise in relation to the grievance and adjudication process under the Act, it would be appropriate for the regulatory authority set out at section 237 to contain a provision similar to paragraph 39 m):

39. m) any other matter that is incidental or conducive to the exercise of its powers, the performance of its functions or the attainment of the objects of this Part.

This would ensure that any unanticipated matter arising in the context of the grievance and adjudication system under Part 2 could be addressed by way of a regulation of general application, to ensure a consistent and efficient functioning of the grievance and adjudication process. Examples of subject matters which the Board may wish to prescribe by a regulation are: form and modalities of application for extension of time, of pre-hearing conferences, of disclosure of documents and other evidence, of issuance of summons, of a request for postponement or change of location of a hearing, form and modalities of written representation, modalities of public access to hearings and case files, etc.

Recommendation

Section 237 should be amended to include a general head of regulation-making in relation to the grievance and adjudication process.

Subsection 237(2) - Exemption to regulations governing grievances

237.(2) Regulations made under subsection (1) respecting individual, group or policy grievances do not apply in respect of employees included in a bargaining unit for which a bargaining agent has been certified by the Board to the extent that the regulations are inconsistent with any provisions contained in a collective agreement entered into by the bargaining agent and the employer applicable to those employees.

237.(2) Les clauses d’une convention collective conclue à l’égard des fonctionnaires d’une unité de négociation par l’agent négociateur accrédité pour celle-ci et par l’employeur l’emportent sur les dispositions incompatibles des règlements pris en vertu du paragraphe (1) au sujet des griefs individuels, collectifs ou de principe.

[Emphasis added]

Issue

The purpose of this subsection is to allow parties to provide their own grievance procedure in their collective agreements. However, the wording of subsection 237(2) could be construed as allowing the parties to contract out from the regulations made by the Board that govern adjudication proceedings and not only those that relate to the parties’ internal grievance procedures. If that is the case, the parties could vary the set of rules that may be prescribed by the Board to ensure the efficient administration of grievances once they have reached the adjudication stage at the Board or the manner in which grievances will be heard by adjudicators, thus affecting the Board’s internal governance and the jurisdiction of adjudicators over the conduct of the hearing. Such a situation would clearly not be desirable.

The PSSRA was clearer in that only Board regulations governing grievances, i.e., the grievance procedure within departments or agencies, could be overridden by a provision of a collective agreement. It would be desirable to make clear that that should continue to be the case.

Recommendation

Amend subsection 237(2) to clarify that the parties may agree on rules concerning the internal grievance procedure that are different from those enacted by a regulation of the Board under paragraphs 237(1)(a) to (e).

Part 3 - Occupational health and safety

Issue

Presently, the Board has no regulation-makingpower concerning complaints presented to it under Part 3 of the Act. The right to make a complaint is grounded in section 133 of the Code, and the purpose of Part 3 of the Act is essentially to substitute the Board for the CIRB for the complaint adjudication process set out in the Code.

While paragraph 240(c) generally provides that the powers of the Board apply, with the necessary modifications, to matters brought before the Board under Part 3, it does not extend to the Board’s regulation-making power. It would be useful for the Board to have regulation-making power with respect to the procedure for complaints that are brought before it under Part 3 of the Act, such as the ability to prescribe complaint forms that could set out, for example, minimum information requirements before a complaint could be appropriately acted upon, along with other procedural matters.

Recommendation

Amend the Act to give the Board regulation-making authority over the procedure for complaints that are brought before it under Part 3 of the Act.

Part 4 - General provisions

Section 241 - Defects in form

241. (1) No proceeding under this Act is invalid by reason only of a defect in form or a technical irregularity. (2) The failure to present a grievance at all required levels in accordance with the applicable grievance process is not a defect in form or a technical irregularity for the purposes of subsection (1).

241. (1) Les procédures prévues par la présente partie ne sont pas susceptibles d’invalidation pour vice de forme ou de procédure. (2) Pour l’application du paragraphe (1), l’omission de présenter le grief à tous les paliers requis conformément à la procédure applicable ne constitue pas un vice de forme ou de procédure.

[Emphasis added]

Issue

The highlighted words in the French and English versions of this section do not match, likely because of a drafting error. In Martel and Carroll v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 35, the Board highlighted this inconsistency as follows:

[23] That exception is new law. Before applying it, it should be pointed out that the English and French versions of subsection 241(1) are not identical and that the difference is worth explaining. The French version refers to proceedings “prévues par la présente partie …,” “présente partie” being Part 4 of the Act. The English version refers instead to proceedings “under this Act …,” an application that is significantly broader than the French version.

[24] The meaning of this provision must be found in its context, in order to determine the version that seems to be more consistent with the purposes of the Act. The French version of section 241 applies only to Part 4 of the Act, which includes only general provisions that do not involve any proceedings. Therefore, it would be meaningless to apply the exception in section 241 only to Part 4. One of the principles of the interpretation of statutes is that Parliament does not speak needlessly.

[25] The preamble of the Act states that one of the goals sought by Parliament is the fair, credible and efficient resolution of matters arising in respect of terms and conditions of employment. In this regard, Parliament has decided that a proceeding should not be invalidated by a simple technical irregularity if the proceeding is otherwise valid. How can one then justify limiting section 241 to Part 4, as is done in the French version? A contextual interpretation of the Act leads us to favour the English version of this section; that is, that the exception for a defect in form or technical irregularity applies to all proceedings under the Act. In my view, the English version of section 241 conveys the true intention of Parliament, rather than the more restrictive wording of the French version, which goes against the purpose of the exception set out in section 241.

Recommendation

Amend subsection 241(1) of the French version of the Act by replacing the words “la présente partie” (“this Part”) by “la présente Loi” (“this Act”).

Publishing decisions on the Board’s website (new)

Issue

As a quasi-judicial tribunal, the Board, along with its Chairperson and adjudicators, renders decisions on a variety of labour relations matters in the federal public service. It operates very much like a court. The Supreme Court has ruled that, other than in exceptional cases, the public’s right to know how justice is administered takes precedence over the privacy of the parties appearing before the courts. The same holds true for proceedings under the Act. Decisions rendered under the Act are publicly available, and hearings under the Act are generally held in public. Nevertheless, in very specific circumstances, decision makers under the Act may grant a request to close a hearing, or part of a hearing, to the public.

Case files, containing exhibits and correspondence exchanged between the parties, have usually been accessible to the public. However, exhibits that contain sensitive information about a person may be sealed by an order of the Board, its Chairperson or adjudicators, as the case may be, on request and based on applicable legal principles. Further, the identity of persons not directly affected by the proceedings (third parties) may be protected by an order of the decision maker.

Like other tribunals, decision makers under the Act serve the parties who appear before them by rendering fair and impartial decisions. Information in their decisions is in the public domain. Providing access to those decisions is of fundamental importance to supporting transparency and accountability in the conduct of administrative justice. Not only does posting decisions on the Board’s website provide valuable information about the rights of federal employees, it also contributes to ensuring consistency in decision making, since the Board, its Chairperson and its adjudicators must take into account the evolving case law under the Act when rendering decisions.

Private publishers are authorized to publish decisions of federal administrative tribunals. Decisions rendered under the Act are also available to the public from specialized private publishers such as LexisNexis’ Quicklaw or freely on the Internet from sources such as CanLII. Recently, some persons began to question the practice of posting decisions on the Board’s website, on the basis that such a practice may not be consistent with the obligation for federal institutions to protect personal information as set out in the Privacy Act.

Recommendation

Codify as clearly as possible the Board’s authority to post decisions rendered under the Act on its website.