A-672-88
Public Service Alliance of Canada (Applicant)
v.
Her Majesty the Queen in Right of Canada as
represented by Treasury Board (Respondent)
INDEXED AS: PUBLIC SERVICE ALLIANCE OF CANADA V.
CANADA (TREASURY BOARD)
Court of Appeal, Heald, Mahoney and Hugessen
JJ.—Ottawa, September 22 and 27, 1988.
Public service — Jurisdiction — Application to review
Public Service Staff Relations Board decision dismissing
objection to jurisdiction — Respondent submitting statement
of designated employees under s. 79(2) of Public Service Staff
Relations Act twenty days after notice to bargain collectively
given — Application allowed — Board of opinion conciliation
process depending on government's duty to file statement and
time limit for filing directory only — Word "shall" in provi
sion rendering filing of statement imperative — Whether fur
nishing list of proposed designated employees duty upon
employer or power free to exercise or not — Public servants
under Act having basic right to adhere to union of choice,
bargain collectively and strike — S. 79 allowing employer to
submit list within prescribed time and implying that in absence
of timely submission, parties presumed to agree no designated
employees in bargaining unit — If Board's position pushed to
logical limit, employer could frustrate collective bargaining
process by refusing to submit list of designated employees —
If filing time inadequate, legislation could be amended.
Construction of statutes — S. 28 application reviewing
Public Service Staff Relations Board's decision dismissing
objection to jurisdiction — Board of opinion that although
requirement to file statement of designated persons under s.
79(2) of Public Service Staff Relations Act mandatory, time
limit for filing directory only — Board's interpretation con
trary to object of Act guaranteeing public servants right to
association, bargain collectively and strike — Interpretation
faulty as could frustrate conciliation process should employer
refuse to submit list.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Interpretation Act, R.S.C. 1970, c. 1-23, s. 28.
Public Service Staff Relations Act, R.S.C. 1970, c. P-35,
ss. 79(1),(2),(3),(4),(5), 101(1)(c).
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Howard v. Bodington (1877), 2 P.D. 203 (Ct of Arches);
Cullimore v. Lyme Regis Corporation, [1962] I Q.B. 718
(H.C.); Montreal Street Railway Company v. Norman-
din, [1917] A.C. 170 (P.C.); Re Metropolitan Toronto
Board of Police Commissioners and Metropolitan
Toronto Police Association (Unit B) et al. (1973), 37
D.L.R. (3d) 487 (Ont. H.C.).
COUNSEL:
' Andrew J. Raven for applicant.
Harvey Newman for respondent.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: This section 28 application seeks
to review and set aside a decision of the Public
Service Staff Relations Board which dismissed an
objection to jurisdiction taken by the applicant, the
Public Service Alliance of Canada. That objection
was based on the admitted fact that the employer
had purported to furnish a statement of designated
employees pursuant to subsection 79(2) of the
Public Service Staff Relations Act' more than
twenty days after notice to bargain collectively had
been given. The relevant statutory provision is
section 79 of the Act.
79. (I) Notwithstanding section 78, no conciliation board
shall be established for the investigation and conciliation of a
dispute in respect of a bargaining unit until the parties have
agreed on or the Board has determined pursuant to this section
the employees or classes of employees in the bargaining unit
(hereinafter in this Act referred to as "designated employees")
whose duties consist in whole or in part of duties the perform
ance of which at any particular time or after any specified
1 R.S.C. 1970, c. P-35.
period of time is or will be necessary in the interest of the safety
or security of the public.
(2) Within twenty days after notice to bargain collectively is
given by either of the parties to collective bargaining, the
employer shall furnish to the Board and the bargaining agent
for the relevant bargaining unit a statement in writing of the
employees or classes of employees in the bargaining unit who
are considered by the employer to be designated employees.
(3) If no objection to the statement referred to in subsection
(2) is filed with the Board by the bargaining agent within such
time after the receipt thereof by the bargaining agent as the
Board may prescribe, such statement shall be taken to be a
statement of the employees or classes of employees in the
bargaining unit who are agreed by the parties to be designated
employees, but where an objection to such statement is filed
with the Board by the bargaining agent within the time so
prescribed, the Board, after considering the objection and
affording each of the parties an opportunity to make represen
tations, shall determine which of the employees or classes of
employees in the bargaining unit are designated employees.
(4) A determination made by the Board pursuant to subsec
tion (3) is final and conclusive for all purposes of this Act, and
shall be communicated in writing by the Chairman to the
parties as soon as possible after the making thereof.
(5) Within such time and in such manner as the Board may
prescribe, all employees in a bargaining unit who are agreed by
the parties or determined by the Board pursuant to this section
to be designated employees shall be so informed by the Board.
For a clearer understanding of the problem it
should be noted that the procedure for "designa-
tion" of employees is applicable only to the "con-
ciliation-strike" process of dispute resolution pro
vided by the Act (the alternative is binding
arbitration) and that the end result of that proce
dure is to deprive a "designated" employee of the
right to strike (see paragraph 101(1)(c)). Thus,
while the process is obviously intended to be, as
subsection 79(1) itself states, designed "in the
interest of the safety or security of the public.", it
represents a powerful arm in the hands of an
employer facing collective bargaining and the
possibility of a strike.
The Board framed the issue before it in these
terms:
Simply put, the question is whether the requirement in subsec
tion 79(2) of the Act relating to the filing of a statement
"Within twenty days after notice to bargain collectively..."
has been given is mandatory or merely directory.
With respect, I think this misstates the question.
There can be little doubt in my mind that the word
"shall" as used in subsection 79(2) was intended to
be imperative: that is its ordinary dictionary mean
ing as well as the meaning dictated by statute (see
Interpretation Act, 2 section 28). The word appears
five other times in section 79, each of them clearly
imperative, and there is a strong presumption that
it should bear the same meaning in subsection (2).
The real problem, as it seems to me, is to know
whether the furnishing of a list of proposed desig
nated employees is a duty cast upon the employer
or simply a power which it is free to exercise or not
as it sees fit. If it is the former, the rule seems to
be that the failure to perform the duty within the
time or in the manner provided should not be held
to deprive other interests of their rights. 3 Put in
the concrete terms of this case, if the government
had a duty to designate employees, its failure to do
so timely must not adversely affect the safety and
security of the public.
If, on the other hand, subsection 79(2) is viewed
as simply facultative, the power given must be
exercised in the manner and time stated or not at
all.
The Board was clearly of the opinion that the
government was under a duty to act under subsec
tion 79(2). It said:
The safety or security of the public should not be jeopardized
by a neglect on the part of the Employer to propose designated
employees within exactly the stated period of twenty days.
As part of its rationale, the Board quoted with
approval from its own earlier decision in the case
of Her Majesty in right of Canada as represented
by the Treasury Board and Federal Government
Dockyard Trades and Labour Council East
(Board file 181-2-162):
2 R.S.C. 1970, c. I-23.
3 See Howard v. Bodington (1877), 2 P.D. 203 (Ct of
Arches); Cullimore v. Lyme Regis Corporation, [1962] 1 Q.B.
718 (H.C.); Montreal Street Railway Company v. Normandin,
[1917] A.C. 170 (P.C.); Re Metropolitan Toronto Board of
Police Commissioners and Metropolitan Toronto Police Asso
ciation (Unit B) et al. (1973), 37 D.L.R. (3d) 487 (Ont. H.C.).
The Board finds that the the (sic) time limit specified in
subsection 79(2) is directory only. Although the wording is
prima facie mandatory, when it is read in the context of the
Act as a whole it is apparent that it was not intended to be
construed as mandatory. The purpose of section 79 is to ensure
that the safety or security of the public is maintained during a
strike. Subsection 79(2) should not be interpreted in such a way
as to defeat this purpose by reason only of the failure of the
employer to adhere strictly to the specified time limit.
We would point out that should the Board accept that the time
limit set out in subsection 79(2) of the Act is mandatory and
that the Employer is precluded from proposing any person for
designation under section 79, it would have the effect of barring
the establishment of a conciliation board. To be more specific,
subsection 79(1) specifies that no conciliation board shall be
established for the investigation and conciliation of a dispute
"until the parties have agreed on or the Board has determined
pursuant to this section" the employees or classes of employees
the performance of whose duties are necessary for the safety or
security of the public. In essence the position of the Bargaining
Agent is that the failure of the Employer to file the required
statement in writing within the time limit specified in subsec
tion 79(2) constitutes an agreement between the parties that
there are no such employees in the bargaining unit. The
language of section 79 does not support that position. Rather,
should the Employer not be allowed to file the "statement in
writing" contemplated by subsection 79(2) the agreement be
tween the parties contemplated therein simply cannot transpire.
The result would be a statement (sic) in the designation proce
dure provided for in section 79, which as already has been
stated, would prevent the establishment of a conciliation board.
This reasoning gives me great difficulty. While
the government's duty to act in the public interest
cannot be doubted, that interest extends well
beyond matters of safety or security. It must also
include, as a reading of the Act as a whole makes
clear, the right of public servants to adhere to the
union of their choice, to bargain collectively, and
ultimately to strike. Certainly the Act casts no
specific duty on the employer to designate
employees in every case while its obligations to
bargain in good faith and not to interfere with the
employees' right of association are set out very
clearly.
I find the reasoning in the second paragraph
quoted above particularly troubling. It seems to be
based on the hypothesis that in every bargaining
unit of the public service of Canada there must be
at least one employee who is essential to public
safety or security; I have difficulty relating that
hypothesis to the world of reality. Furthermore, if
the Board's proposition were pushed to its logical
limit, the employer could frustrate the conciliation
process, and thereby the whole machinery for col
lective bargaining, by the simple expedient of
refusing to submit a list of designated employees.
It seems to me to be far more reasonable to read
section 79 as allowing the employer to submit a list
within the time prescribed and implying that, in
the absence of a timely submission, the parties are
presumed to have agreed that there are to be no
designated employees within the relevant bargain
ing unit. Such a reading seems to me to be more in
keeping with the scheme of the Act as a whole and
with the general context of labour relations law
and practice in Canada today.
One further point. This is apparently a test case.
I am astonished to learn that the situation here is
not unique. At the time of the hearing before the
Board, there were nineteen pending instances
where the employer had failed to comply with the
time limit in subsection 79(2). It may be that this
is due to simple negligence or it may be that it is
an indication that the time provided is too short; if
the latter is the case, the remedy lies in amending
the legislation, not in interpreting it in a manner
which does violence to the language. It is to be
noted that no attempt was made by the employer
to justify the late filing and I accordingly do not
exclude the possibility that the Board could, in a
proper case and for good cause shown, relieve the
government from the consequences of its default.
I would allow the section 28 application, set
aside the impugned decision and return the matter
to the Board for redetermination in accordance
with these reasons.
HEALD J.: I agree.
MAHONEY J.: I agree.
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.