A-571-77
Rosaire Picard (Applicant)
v.
Public Service Staff Relations Board (Respond-
ent)
Court of Appeal, Jackett C.J., Heald J. and Kerr
D.J.—Ottawa, December 8, 1977.
Judicial review — Public Service Labour relations
Whether or not Public Service Staff Relations Board has
jurisdiction to hear the matter after applicable section
repealed but not before proceedings had begun Whether or
not Board, having decided Adjudicator erred in law, should
have referred the matter back to the Adjudicator for rehearing
instead of applying law to facts found by Adjudicator to
achieve correct disposition — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28 Public Service Staff Relations Act,
R.S.C. 1970, c. P-35, s. 23 as amended by S.C. 1974-75-76, c.
67, ss. 11, 32.
APPLICATION for judicial review.
COUNSEL:
Maurice Wright, Q.C., for applicant.
John McCormick for respondent.
Robert W. Côté for the Queen (Treasury
Board).
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for applicant.
Public Service Staff Relations Board, Legal
Department, for respondent.
Deputy Attorney General of Canada for the
Queen (Treasury Board).
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside a decision of the Public Service Staff
Relations Board.
The first ground of attack is that, as the matter
came before the Board by way of a reference from
an Adjudicator under section 23 of the Public
Service Staff Relations Act', R.S.C. 1970, c.
P-35, which section was repealed by section 11 of
chapter 67 of the Statutes of 1974-75-76, effective
October 1, 1975, and the reference under section
23 was made on April 30, 1976, the Board had no
jurisdiction to hear and decide the reference.
This first ground was based on the contention
that the reference was a proceeding within the
meaning of the word "proceedings" in section
32(1) of the amending Act, which provision reads:
32. (1) Any proceedings instituted under the Public Service
Staff Relations Act before the Board, the Arbitration Tribunal
or an adjudicator before the coming into force of this Act shall
be continued and completed as if this Act had not been enacted.
In my view, the meaning of the word "proceeding"
varies with the context and, in this context, it
refers to the whole of the procedures provided_ for
by the Public Service Staff Relations Act for the
processing of a grievance. On that view, as the
applicant instituted his grievance proceedings
before the repeal of section 23, it is clear that the
repeal of the provision did not apply to such
grievance proceedings. I see a clear analogy be
tween a section 23 reference and an appeal in an
ordinary lawsuit. The right to make such a refer
ence is, in my view, a substantive right and not a
mere procedural right; and a provision creating or
abolishing such a right does not operate retroac
tively in the absence of a clearly expressed intent.
See Boyer v. The King 2 and Marcotte v. The
King'.
' Section 23 reads as follows:
23. Where any question of law or jurisdiction arises in
connection with a matter that has been referred to the
Arbitration Tribunal or to an adjudicator pursuant to this
Act, the Arbitration Tribunal or adjudicator, as the case may
be, or either of the parties may refer the question to the
Board for hearing or determination in accordance with, any
regulations made by the Board in respect thereof, but the
referral of any such question to the Board shall not operate
to suspend any proceedings in connection with that matter
unless the Arbitration Tribunal or adjudicator, as the case
may be, determines that the nature of the question warrants
a suspension of the proceedings or unless the Board directs
the suspension thereof.
2 [1949] S.C.R. 89.
3 [1950] S.C.R. 352.
The second ground of attack is that the Board,
having decided that the Adjudicator had decided
the question before him on a wrong view of the
law, should have referred the matter back to the
Adjudicator for a re-hearing on a view of the law
as formulated by the Board. What the Board did,
as I understand it, was to decide, on the facts as
found by the Adjudicator, what, in law, was a
correct disposition of the matter that was before
the Adjudicator, and to make the order that
flowed from that decision. In doing so, in my view,
it did not exceed the powers implied by the lan
guage of section 23.
The section 28 application, in my view, should
be dismissed.
* * *
HEALD J. concurred.
* * *
KERR D.J. concurred.
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.