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T-2619-76
The Professional Institute of the Public Service of Canada (Applicant)
v.
Treasury Board, Jean Chrétien, Donald Mac- donald, C. M. Drury, Jean-Pierre Goyer, Ronald Basford and Judd Buchanan (Respondents)
Trial Division, Addy J.—Ottawa, July 20 and 26, 1976.
Crown — Treasury Board Practice — Public Service em ployees Application for writ of mandamus to enforce arbitration award—No jurisdiction under s. 18 of Federal Court Act Public Service Staff Relations Act, R.S.C. 1970, c. P-35, ss. 2, 20, 21, 40, 67, 72, 74, 91 and 98 Federal Court Act, s. 18—Anti-Inflation Act, S.C. 1974-75-76, c. 75, s. 13(2), Anti-Inflation Guidelines, SOR/76-1, s. 43 Financial Administration Act, R.S.C. 1970, c. F-10, ss. 3(1) and 5(1)(e).
Applicant argues that an arbitral award made pursuant to section 67 of the Public Service Staff Relations Act is binding by reason of section 72 and that respondent is bound to implement it by section 74. Any subject-matter covered by an arbitral award would not be subject to the Anti-Inflation Act and it was clear from the wording of the award that the provisions of the Anti-Inflation Act had been taken into account by the Public Service Staff Relations Board. Respond ents argue that mandamus would not lie in any event, regard less of the merits. Section 40 of the P.S.S.R. Act strictly limits the rights of a bargaining agent and that Act provides the substance of the remedy sought. The applicant is a corporation, has no interest in the issue and therefore cannot maintain a representative action in the Federal Court. In any event, the respondent Board is not amenable before the Federal Court in this instance since, under section 3(1) of the Financial Administration Act, it is a committee of the Queen's Privy Council of Canada and was acting in this matter as an agent of the Crown and not of the legislature and is therefore immune from mandamus. The true defendant would be Her Majesty in right of Canada under section 2 of P.S.S.R. Act. Finally, mandamus could not lie because the applicant had never demanded that the respondents comply with the award.
Held, the motion is dismissed. The fundamental reason why mandamus cannot lie in this case is that in common law there is no contractual obligation of the Crown toward its servants, all of whose rights must flow from statute. In this case the rights and remedies of the employees are governed by the P.S.S.R. Act, in particular in sections 20, 21, 40, 91 and 98 of that Act which, taken together, make it clear that Parliament has the ultimate authority to grant relief of the type sought. The Federal Court therefore cannot intervene at this stage without directly contravening the express will of Parliament.
Minister of Finance of British Columbia v. The King [1935] S.C.R. 278; The Queen v. The Lords Commission ers of the Treasury (1872) L.R. 7 Q.B. 387 and The Queen v. Secretary of State for War [1891] 2 Q.B. 326, referred to.
APPLICATION. COUNSEL:
G. F. Henderson and Robert M. Nelson for
applicant.
G. W. Ainslie, Q.C., for respondents.
SOLICITORS:
Cowling & Henderson, Ottawa, for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for order ren dered in English by
ADDY J.: The applicant is the certified bargain ing agent under the Public Service Staff Relations Act' (hereinafter referred to as the "P.S.S.R. Act") of a group of Public Service employees known as the Agriculture Group, Scientific and Professional Category (hereinafter referred to as the "employees"). The personal respondents con stitute the respondent Treasury Board.
The present application is for a writ of man- damus pursuant to section 18(a) of the Federal Court Act directing the respondents to implement the terms of an arbitral award rendered on the 13th of April 1976 by an arbitration board under the P.S.S.R. Act (the said Board being hereinafter referred to as the "P.S.S.R. Board").
The facts in this application are relatively simple and are not in dispute. They are listed chronologically hereunder:
1. The collective agreement between the employees and the employer having expired and negotiations for a new collective agreement having proven unsuccessful, the matter was referred to the P.S.S.R. Board for arbitration
' R.S.C. 1970, c. P-35, as amended.
pursuant to the P.S.S.R. Act and the arbitral award was rendered on the 13th of April 1976.
2. On the 23rd of April the respondent Board forwarded to the Anti-Inflation Board Form AIB-2 in accordance with its statutory obliga tion to do so, notice in the Canada Gazette required under section 13(2) of the Anti-Infla tion Act e having been published. The respondent Board at that time also requested that the case be handled with the least possible delay.
3. By letter to the respondents of the 20th of May 1976, the Anti-Inflation Board noted that, in the case of the 10 salary rates (affecting approximately 75 of a total of some 333 employees), the compensation apparently exceeded to some extent the amounts provided for in section 43 of the Anti-Inflation Guidelines 3 and advised that the Anti-Inflation Board in fact approved the award, subject to the aforesaid 10 salary rate increases being limited to $2,400 in compliance with section 67 of the aforesaid Guidelines and also requested that amended copies of the form be re-submitted to reflect the change.
4. On the 26th of May a negotiator for the respondents contacted the representative of the applicant and suggested that the applicant agree to the arbitral award being amended to comply with the opinion of the Anti-Inflation Board. The applicant refused to do so and indicated that it was not prepared to enter into discussion with a view to altering or amending the award.
5. On the 27th of May, the respondent Board wrote to the Anti-Inflation Board to express disagreement with the award and pointed out that under section 74 of the P.S.S.R. Act it had only 90 days from the 13th of April to comply with the arbitral award, that negotiations be tween it and the applicant herein had failed to modify the terms of the arbitral award so as to bring them within the limits and spirit of the Guidelines and that, as a result, it was in a dilemma as to what to do about the Anti-Infla tion Board's letter of the 20th of May in the
2 S.C. 1974-75-76, c. 75.
3 Canada Gazette Part II, Vol. 110, No. I [SOR/76-1].
face of the obligation to comply with the arbitral award.
6. On the 18th of June, the Anti-Inflation Board wrote to the respondent to acknowledge receipt of the letter of the 27th of May and to advise the respondent Board that it "will be in touch with the employer and the employee rep resentative to ascertain whether there is any relevant new information which should be con sidered prior to referral of this case to the Administrator."
7. On the 30th of June, the respondent wrote to the P.S.S.R. Board and requested that, pursuant to section 74 of the P.S.S.R. Act, it grant an order extending the period of time within which the award must be implemented for a further 90 days from the time when the Administrator under the Anti-Inflation Act communicates his decision.
8. On the 2nd of July, the Secretary of the P.S.S.R. Board wrote to the agent of the appli cant herein advising him of the respondent Trea sury Board's request for extension of time and requested that any representations he wished to make be filed forthwith.
9. On the 5th of July, 1976, the applicant replied stating that it was objecting strongly to the respondent Board's request for an order extending time to comply with the award of the 13th of April and stated that, when the appli cant's representative returned from vacation on the 7th of July he would forthwith file reasons for such objection.
10. On the 7th of July, a representative of the respondent Board handed to an official repre sentative of the applicant a copy of the Anti- Inflation Board's letter of the 20th of May 1976 and of the respondent Board's reply of the 27th of May 1976.
11. On the 12th of July 1976, the representative of the applicant wrote to the P.S.S.R. Board giving the grounds for its objection to the grant ing of any extension to the respondents. The substance of the objection was that neither the Anti-Inflation Board nor the Administrator had any authority whatsoever to interfere with the arbitral award and that the award was binding
on both parties and was not subject to consider ation or control by the Board or the Administra tor under the Anti-Inflation Act.
12. Both parties agreed that the time to comply with the award of the 13th of April expired on the 12th of July 1976, notwithstanding that the date of the 11th of July had been mentioned in some correspondence.
13. The present application was launched on the 14th of July by way of originating notice of motion without any demand to comply with the arbitral award having been made on the respondents by the applicant.
14. To the date of the hearing of this motion, the Anti-Inflation Board has not yet com municated with the applicant and the matter has not yet been referred to the Administrator appointed under the Anti-Inflation Act.
As to the merits, the fundamental argument of counsel for the applicant was to the effect that the arbitral award was made pursuant to a statute, namely, section 67 of the P.S.S.R. Act that it was absolutely binding by reason of section 72 and a statutory, public, non-discretionary duty was imposed on the respondents to implement it by virtue of section 74 of the P.S.S.R. Act. The award, therefore, created final and binding statu tory rights in the employees which rights were not affected by or taken away by any of the provisions of the Anti-Inflation Act and that there was noth ing for the Anti-Inflation Board to consider in accordance with its duties and powers enumerated in section 12 of the Anti-Inflation Act, with the result that, although a negotiated collective agree ment would be subject to the Anti-Inflation Act, any subject-matter covered by an arbitral award would not. It was, again according to the appli cant, the legal duty of the P.S.S.R. Board in making an award to take into account the provi sions of the Anti-Inflation Act and, furthermore, it is clear from the wording of the award that in fact it purported to do so.
Much time and argument were devoted by both sides on this fundamental issue as to the merits of the case and also on a further corollary argument advanced by counsel for the applicant. However,
altogether apart from the merits of the case, there were several grounds advanced by counsel for the respondents why mandamus would not lie in any event, regardless of the merits.
The main objections made may be summarized as follows:
1. That in so far as the status of a bargaining agent is concerned, the only effect flowing from certification as a bargaining agent is to be found in section 40 of the P.S.S.R. Act. This section strictly limits the rights of a bargaining agent, as defined under section 2 of the Act, to bargain collectively on behalf of the employees, to bind them and to represent them in arbitration and other proceedings under the Act itself. The applicant would therefore have no status as a bargaining agent under the Act to maintain the present action in this Court, especially where the substance of the remedy sought exists under the P.S.S.R. Act itself. That the fact that the appli cant is incorporated and would as a legal person be entitled to sue or be sued in any court does not help it in the present situation since the applicant, as a corporation, has no interest in the issue and, therefore, cannot maintain the action which is not expressed to be nor is it in fact a representative action.
2. That the respondent Board, in the exercise of its function under the P.S.S.R. Act, is not amen able before this Court since, as provided for under section 3(1) of the Financial Administra tion Act 4 it is "a committee of the Queen's Privy Council for Canada" and under section 5(1)(e) of that Act, the Treasury Board acts for the Queen's Privy Council for Canada on all mat ters relating to:
(e) personnel management in the public service, including the determination of terms and conditions of employment of persons employed therein; ...
It was argued therefore that in the exercise of its functions in the present matter, the respondent Board was not acting as the mere agent of the legislature to perform specific acts for which it would be subject to mandamus but was truly
4 R.S.C. 1970, c. F-10.
acting as an agent of the Crown and in such capacity was immune from mandamus. The fol lowing cases were referred to and argued: Min ister of Finance of British Columbia v. The Kings; The Queen v. The Lords Commissioners of the Treasury 6 ; and The Queen v. Secretary of State for War 7 .
3. That, in any event, the true defendant in any action against the employer would not be the Treasury Board but Her Majesty in right of Canada since in section 2 of the P.S.S.R. Act itself "employer" is defined as "Her Majesty in right of Canada as represented by ... the Trea sury Board ...."
4. That, as no demand whatsoever had been made on the respondents by the applicant to comply with the award and since there was therefore no refusal to comply, mandamus ordering the respondents to comply would not lie.
Several, if not all of these objections, would appear to have merit but I am refraining from making any specific finding thereon in view of the existence of what is apparently a more fundamen tal and certainly a more substantive objection as to why mandamus cannot lie in the particular cir cumstances of this case.
There exists at common law no contractual obli gation of the Crown toward its servants as in the case of an ordinary master and his servants. All rights of Crown's servants to claim against it must flow from statute. In this particular case the rights of the employees and the forum and procedure for determining and for enforcing those rights are contained in the P.S.S.R. Act. Furthermore, it, like most labour relations Acts, creates many new and purely statutory obligations on the part of the employer and corresponding rights on the part of the employees and their bargaining agents pertain ing to collective agreements, labour disputes and matters incidental thereto, which do not exist at common law. For the purpose of providing a means of protecting and enforcing the rights of employees, it also, as in the case of most labour
5 [1935] S.C.R. 278 at 284-285.
6 (1872) L.R. 7 Q.B. 387.
7 [1891] 2 Q.B. 326 at 338.
codes, creates, recognizes and gives special legal status and powers to Iegal personalities or parties, such as the applicant, who otherwise would possess no legal existence or standing whatsoever in labour matters. These powers include that of enforcing the special statutory rights of the employees by application to the Board itself (refer section 20) or to the Chief Adjudicator (refer section 98). These constitute special forums for the determination of those rights and are endowed with executory powers of enforcement.
As to the status of the applicant to seek the relief presently requested by way of reference of a grievance to an adjudicator, the relevant portions of section 40 read as follows:
4o. (1)...
(a) the employee organization has the exclusive right under this Act
(ii) to represent, in accordance with this Act, an employee in the presentation or reference to adjudication of a griev ance relating to the interpretation or application of ... [an] arbitral award applying to the bargaining unit to which the employee belongs;
As to the forum and mechanism for enforcement by means of grievance submitted by an employee covering a right such as the present one, section 91 provides:
91. (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 him of a provision of ... an arbitral award,
and his grievance has not been dealt with to his satisfaction, he may refer the grievance to adjudication.
As to the forum and mechanism for enforcement by the bargaining agent by way of adjudication, section 98 provides as follows:
98. (1) Where the employer and a bargaining agent ... are bound by an arbitral award and
(a) ... the bargaining agent seeks to enforce an obligation that is alleged to arise out of the ... arbitral award, and
(b) the obligation, if any, is not an obligation the enforce ment of which may be the subject of a grievance of an
employee in the bargaining unit to which the collective agreement or arbitral award applies,
... the bargaining agent may, in the prescribed manner, refer the matter to the chief adjudicator who shall personally hear and determine whether there is an obligation as alleged'... .
(2) The chief adjudicator shall hear and determine the matter so referred to him as though it were a grievance, and subsection 95(2) and sections 96 and 97 apply to its hearing and determination.
Where it is sought to refer the matter directly to the P.S.S.R. Board, section 20 obliges the latter to hear and determine the matter and empowers it to direct that its finding be complied with. The rele vant portions of that section read as follows:
20. (1) The Board shall examine and inquire into any com plaint made to it that the employer, or any person acting on its behalf, ... has failed
(b) to give effect to any provision of an arbitral award;
(2) Where under subsection (1) the Board determines that any person has failed ... to give effect to any provision or decision or to comply with any regulation as described in subsection (1), it may make an order, addressed to that person, directing him to observe the prohibition, give effect to the provision or decision ... or take such action as may be required in that behalf within such specified period as the Board may consider appropriate and,
(a) where that person has acted or purported to act on behalf of the employer, it shall direct its order as well
(ii) ... to the Secretary of the Treasury Board; ...
Should the Treasury Board fail to comply, section 21 provides:
21. Where any order made under section 20 directs some action to be taken and is not complied with within the period specified in the order for the taking of such action, the Board shall forward to the Minister through whom it reports to Parliament a copy of its order, a report of the circumstances and all documents relevant thereto, and the copy of the order, the report and the relevant documents shall be laid by the Minister before Parliament within fifteen days after receipt thereof by him or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that Parliament is sitting.
It is clear that the Act provides that in such a case Parliament itself is the ultimate authority.
In the present case, since special statutory rights and obligations as well as peculiar legal parties or agents are created by statute and a complete procedure is provided in the statute for the deter-
mination and the enforcement of such rights, not only must this Court refrain from interfering but, in my view, having regard to the wording of the above sections, this Court does not have the juris diction to intervene at this stage. It would consti tute a direct contravention of the express will of Parliament that these matters be dealt with pursu ant to the Act on which the rights are founded. Section 18 of the Federal Court Act is by no means an overriding authority for this Court to intervene at any time regardless of the circum stances. It is merely enabling legislation permitting this statutory Court which possesses no jurisdiction or powers other than those granted to it by statute, to exercise its jurisdiction in the field of man- damus and other related fields providing it is otherwise proper and permissible for it to do so.
In the case before me there is no question of the Board or of the Chief Adjudicator having refused or neglected to exercise jurisdiction or of jurisdic tion having been exceeded: the applicant has requested no one except this Court to act.
The motion for mandamus will therefore be dismissed with costs.
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