T-2233-78
Canadian Union of Postal Workers (Plaintiff)
v.
J. H. Brown, in his capacity as Chairman of the
Public Service Staff Relations Board (Defendant)
and
Treasury Board, represented by the Attorney Gen
eral of Canada and the Public Service Staff Rela
tions Board (Mis -en-cause)
Trial Division, Dubé J.—Ottawa, February 26 and
29, 1980.
Public Service — Action to determine whether Chairman of
Public Service Staff Relations Board enjoys any discretion
when deciding on the terms of reference of a conciliation board
— Public Service Staff Relations Act, R.S.C. 1970, c. P-35,
ss. 59, 83, 86(4).
The "terms of reference" given by the Chairman of the
Public Service Staff Relations Board pursuant to section 83 of
the Public Service Staff Relations Act to a conciliation board
established pursuant to section 59 of the Act did not contain all
the questions the two parties submitted to him. He eliminated
some and added others. He did not merely incorporate the
matters raised by the parties but added his own observations.
Plaintiff submits that the Chairman does not have this type of
discretion under section 83. It is not up to him to decide what
matters should or should not be submitted to the board or to
decide on the legality of a proposal. This would be the role of
the conciliation board itself, or the Board or the courts. The
Chairman has a strictly administrative role: he collects the
information from the two parties and passes it on to the board.
He must not assume a quasi-judicial power but must quite
simply, as section 83 provides "deliver a statement".
Held, the action is dismissed. The purpose of establishing a
conciliation board is to assist the parties in reaching agreement.
The Public Service Staff Relations Act imposes more restric
tions on negotiators than labour legislation in the private sector
in Canada. If the board recommended measures which contra
vene those restrictions, these would not be implemented. It is in
this sense that the Chairman must see that he refers to the
board only matters which it can deal with effectively. Under
section 83, the Chairman may amend the statement he delivers
to the board; he may do so either before or after the findings
are reported. He may also, under section 86(4), direct the
board to reconsider and clarify or amplify its report or to
consider and report on any matter added to such statement.
The Chairman has a certain amount of discretion under section
83. His power is not limited to referring all subjects automati
cally to the board, as he must do in the case of arbitration
under section 67. He can amend the statement by adding or
deleting matters which in his view are contrary to the provisions
of the Act, as he deems necessary or advisable in the interest of
assisting the parties in reaching agreement.
ACTION.
COUNSEL:
G. Nadeau for plaintiff.
F. Lemieux for defendant.
H. Newman for mis -en-cause Treasury Board.
J. McCormick for mis -en-cause Public Ser
vice Staff Relations Board.
SOLICITORS:
Trudel, Nadeau, Letourneau, Lesage &
Cleary, Montreal, for plaintiff.
Herridge, Tolmie, Ottawa, for defendant.
Deputy Attorney General of Canada for mis -
en-cause Treasury Board.
Public Service Staff Relations Board,
Ottawa, for itself.
The following is the English version of the
reasons for judgment rendered by
DuBÉ J.: The issue to be determined here is
whether under section 83 of the Public Service
Staff Relations Act' the Chairman of the Public
Service Staff Relations Board ("the Chairman")
enjoys any discretion when deciding on the terms
of reference of a conciliation board. The section
reads as follows:
83. Forthwith upon the establishment of a conciliation
board, the Chairman shall deliver to the conciliation board a
statement setting forth the matters on which the board shall
report its findings and recommendations to the Chairman, and
the Chairman may, either before or after the report to him of
its findings and recommendations, amend such statement by
adding thereto or deleting therefrom any matter he deems
necessary or advisable in the interest of assisting the parties in
reaching agreement.
This interpretation became necessary as a result
of a judgment of the Federal Court of Appeal
(A-307-79) authorizing the Canadian Union of
Postal Workers to file an amended statement of
1 R.C.S. 1970, c. P-35.
claim dealing solely with the extent of the Chair-
man's powers under the above-cited section.
Section 83 is in Part III of the Act, which
contains provisions applicable to the resolution of
disputes. Under section 59, where the parties have
bargained collectively without reaching an agree
ment, if the parties choose arbitration sections 63
to 76 apply to the resolution of the dispute; if they
choose conciliation, sections 77 to 89 will apply.
Conciliation was chosen here, and section 77
therefore governs the request for the establishment
of a board. Section 78 provides that the Chairman
shall establish such a board unless it appears to
him, after consultation with each of the parties,
that such a board is unlikely to serve the purpose
of assisting the parties in reaching an agreement.
The subsequent sections govern the constitution of
the board, while section 83, finally, provides for its
terms of reference.
The procedure to be followed by the board is
provided for in section 84; as soon as possible after
receiving the statement referred to in section 83,
the board shall endeavour to bring about agree
ment between the parties in relation to the matters
set forth in the statement. Section 86 provides that
the board shall, within fourteen days after the
receipt of the statement, report its findings and
recommendations to the Chairman. Subsection
86(2) provides that subsection 56(2) applies,
mutatis mutandis, to the report. The said subsec
tion 56(2) provides that no collective agreement
shall provide for the alteration of any existing term
or condition of employment necessitating the
amendment of any legislation by Parliament. Sub
section 86(3) provides that a report must not
contain any recommendation concerning the
appointment, release and so on of employees.
Finally, another, more general restriction respect
ing the board's powers is contained in section 7,
which provides that nothing in this Act shall be
construed to affect the right or authority of the
employer to determine the organization of the
Public Service.
Sgction 89, the last section in Part III, provides
that a recommendation of a board may be binding
on the parties where the parties so agree before the
report.
The "terms of reference" given by the Chairman
to the board in the present case were filed in order
to situate the problem in a specific and real con
text. The Chairman did not include in these terms
of reference all the questions the two parties sub
mitted to him. He eliminated some and added
others. He did not merely incorporate the matters
raised by the parties but added his own
observations.
The document entitled "Terms of Reference of
the Conciliation Board" is 39 pages long (English
version) and contains a number of comments by
the Chairman. By way of example only, he writes
at page 6 that clause (a) of Article 4.07, Compul
sory Membership, "contravenes the prohibition
contained in paragraph 8(2)(c) of the Act". He
adds that "This in turn would contravene para
graph 56(2)(a) of the Act, as clause (a) would
require an amendment to paragraph 8(2)(c)". On
page 8, concerning clause (5) of Article 9 which
provides "that [an] employee will not be allowed
to withdraw his grievance without the Union's
consent", the Chairman wrote that in his view "the
proposal would require an amendment to section
90 of the Act and therefore falls within the prohi
bition of paragraph 56(2)(a) of the Act". He
concludes that "[this] proposal is not referred to
the conciliation board".
At pages 8-9, when dealing with clause (6) of
the same Article 9, the Chairman says that he sees
"no reason why it should not be referred to the
conciliation board, provided no recommendation is
made that expands or restricts the provision of
subsection 95(3) which would then offend para
graph 56(2)(a) of the Act". He concludes as fol
lows: "With that caution, the proposal is referred
to the conciliation board".
According to learned counsel for the plaintiff,
the Chairman does not have this type of discretion
under section 83. It is not up to him to decide what
matters should, or should not, be submitted to the
board or to decide on the legality of a proposal.
This would be the role only of the conciliation
board itself, or the Board, or the courts. According
to him, the Chairman has a strictly administrative
role: he collects the information from the two
parties and passes it on to the board. The Chair
man must not assume a quasi-judicial power but
must quite simply, as section 83 provides, "deliver
a statement". He is of the view that in accordance
with the spirit of conciliation proceedings, all ques
tions must be referred to the board to enable it to
play its dual role of investigator and conciliator
more effectively. He relies on subsection 82(2) to
the effect that no process may be entered to
restrain any of the proceedings of the board.
Again according to counsel, if Parliament had
wished to confer a discretionary power on the
Chairman it would have done so expressly.
However, the purpose of establishing a concilia
tion board is to assist the parties in reaching
agreement. Under section 78 cited above, the
Chairman is not obliged to establish such a board:
he is to do so only if it appears to him that such a
board may be profitable. The terms of reference
given to the board must therefore not be regarded
as an order from the Chairman, since the parties
are not bound by the findings of the board, unless
they so agree.
The Public Service Staff Relations Act imposes
more restrictions on negotiators than labour legis
lation in the private sector in Canada. If the board
recommended measures which contravene the
above-cited restrictions, these would not be imple
mented. It is in this sense that the Chairman must
see that he refers to the board only matters which
it can deal with effectively. Moreover, the board
reports to the Chairman himself, not to the parties.
The Chairman is not interested in receiving find
ings which contravene the above-mentioned re
strictions.
Moreover, according to the second part of sec
tion 83, the Chairman may amend the statement
he delivers to the board. He may do so either
before or after the findings are reported, by adding
thereto or deleting therefrom any matter he
"deems necessary or advisable in the interest of
assisting the parties in reaching agreement". In
view of such a provision it is difficult to conclude
that the Chairman's role is limited to collecting all
subjects and matters submitted by the parties and
passing them on to the board without any com
ments, additions or subtractions.
The situation is entirely different as regards the
Arbitration Tribunal (before the amendments),
when under section 65 the Chairman must refer
the matter in dispute to the Tribunal. Under sec
tion 67, the matters specified in the notice sent by
the Chairman to the Arbitration Tribunal consti
tute the Tribunal's terms of reference. The Chair
man has no discretion in this regard. It is the
Tribunal itself which decides "after considering
the matters in dispute together with any other
matter that [it] considers necessarily incidental to
the resolution ...".
The extent of the Chairman's powers is also
governed by subsection 86(4), which authorizes
the latter, after a board has reported its findings to
him, to "direct it to reconsider and clarify or
amplify its report or any part thereof, or to consid
er and report on any matter added to such state
ment ...".
It must therefore be concluded that the Chair
man has a certain amount of discretion under
section 83. His power is not limited to referring all
subjects automatically to the board. He can amend
the statement by adding or deleting matters which
in his view are contrary to the provisions of the
Act, as he deems necessary or advisable in the
interest of assisting the parties in reaching
agreement.
The action is therefore dismissed, but without
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.