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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.