T-1723-89
Attorney General of Canada (Applicant)
v.
Public Service Staff Relations Board (Respon-
dent)
and
Public Service Alliance of Canada (Mise-en-
cause)
INDEXED AS: CANADA (ATTORNEY GENERAL) v. PUBLIC SER
VICE STAFF RELATIONS BOARD (T.D.)
Trial Division, Teitelbaum J.—Ottawa, September
7 and October 20, 1989.
Judicial review — Prerogative writs — Prohibition — Pre
liminary determination by Public Service Staff Relations
Board re: jurisdiction to hear reference under s. 99, Public
Service Staff Relations Act not subject to review by Trial
Division under Federal Court Act, s. 18 — Board having
statutory jurisdiction to make preliminary decision as to
jurisdiction under P.S.S.R.B. Regulations and Rules of Proce
dure, s. 87 — Decision final as creates legal rights — Subject
to review under Federal Court Act, s. 28(l) — S. 28(3)
depriving Trial Division of review jurisdiction where Court of
Appeal having jurisdiction under s. 28.
Federal Court jurisdiction — Trial Division — Application
for writ of prohibition to prevent continuation of hearing of
reference by Public Service Staff Relations Board, after Board
making preliminary determination re: jurisdiction — Board
having statutory authority to make such decision under
P.S.S.R.B. Regulations and Rules of Procedure — Decision
final in that having legal effect — Subject to Federal Court
Act, s. 28(l) review — S. 28(3) precluding Trial Division's
jurisdiction.
Public service — Jurisdiction — Public Service Staff Rela
tions Board authorized under P.S.S.R.B. Regulations and
Rules of Procedure, s. 87 to make preliminary determination
whether proper matter for PSS RA, s. 99 reference — Board's
decision final as created legal rights and obligations — F.C.A.,
not T.D., having judicial review jurisdiction.
This was a motion for a writ of prohibition to prevent the
Public Service Staff Relations Board from further considering
a reference filed by the Public Service Alliance of Canada
under section 99 of the Public Service Staff Relations Act.
Revenue Canada, Customs and Excise had announced the
contracting out of certain jobs to the private sector under its
Person Years and Cost Reduction Program. The Union filed a
reference alleging that Revenue Canada had violated the col
lective agreement and the Work Force Adjustment Policy. The
Board made a preliminary finding that it had jurisdiction to
hear the reference and informed the parties that it intended to
proceed with the hearing. The Attorney General submitted that
the Board lacked jurisdiction to hear the reference. The issues
were (1) whether this was an appropriate matter for prohibition
under Federal Court Act, section 18 and (2) if so, whether such
relief should be granted.
Held, the application should be dismissed.
This was not a proper case for prohibition. Federal Court
Act, section 18 gives the Trial Division exclusive jurisdiction to
issue a writ of prohibition against "any federal board, commis
sion or other tribunal". Section 28 gives the Court of Appeal
jurisdiction to review and set aside certain decisions of a federal
board, commission or other tribunal. Subsection 28(3) provides
that where the Court of Appeal has jurisdiction to review a
board's decision under section 28, the Trial Division has no
jurisdiction. The question is whether the impugned decision was
a "decision or order" within the meaning of subsection 28(1).
The decision of the Federal Court of Appeal in Danmor Shoe—
a leading case on what is a "decision or order" under section
28—precludes applications under section 18 for a writ of
prohibition which will interfere with a tribunal's preliminary or
interim order or decision, unless the board has express author
ity to make such decisions. Once a board decides something
that it has "jurisdiction" to decide, that decision has legal
effect and the Board's powers are spent. Such a decision is
subject to section 28 review. But when a board takes a position
with regard to the nature of its powers upon which it intends to
act, that "decision" has no legal effect—nothing has been
decided. The latter decision is subject to being set aside under
neither section 28 nor 18. The Public Service Staff Relations
Board had independent statutory authority under section 87 of
the P.S.S.R.B. Regulations and Rules of Procedure to decide
in an interlocutory or preliminary fashion whether the matter
was appropriate for a section 99 reference. The Board's deci
sion was final in that it created legal rights or obligations. This
was, therefore, a proper case for section 28 review and that,
precluded review under section 18.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7. ss. 2, 18, 28, 29.
P.S.S.R.B. Regulations and Rules of Procedure, C.R.C.,
c. 1353, s. 87.
Public Service Staff Relations Act, R.S.C., 1985, c. P-35,
ss. 91, 99, 100(3)(c).
CASES JUDICIALLY CONSIDERED
APPLIED:
Minister of National Revenue v. Coopers and Lybrand,
[1979] 1 S.C.R. 495; (1978), 92 D.L.R. 1; 78 DTC 6258;
[1978] C.T.C. 829; Anti-dumping Act (In re) and in re
Danmor Shoe Co. Ltd., [1974] 1 F.C. 22; (1974), 1 N.R.
422 (C.A.).
DISTINGUISHED:
Attorney General of Canada v. Lachapelle, [1979] 1 F.C.
377; (1978), 91 D.L.R. (3d) 674 (T.D.); affd sub nom.
Baril v. Attorney General of Canada, [1980] 1 F.C. 55;
(1979), 106 D.L.R. (3d) 79; 36 N.R. 587 (C.A.).
CONSIDERED:
Canadian Union of Public Employees, Local 963 v. New
Brunswick Liquor Corporation, [1979] 2 S.C.R. 227;
(1979), 25 N.B.R. (2d) 237; 97 D.L.R. (3d) 417; 26 N.R.
341; 51 A.P.R. 237; 79 CLLC 14,209; Syndicat des
employés de production du Québec et de l'Acadie v.
Canada Labour Relations Board et al., [1984] 2 S.C.R.
412; (1984), 14 D.L.R. (4th) 457; 55 N.R. 321; 14
Admin. L.R. 72; 84 CLLC 14,069.
REFERRED TO:
Professional Association of Foreign Service Officers and
Treasury Board, 169-2-7, Edward B. Jolliffe, Q.C., Chief
Adjudicator, decision dated December 14, 1970; Canadi-
an Association of Professional Radio Operators and
Treasury Board (1988), 14 PSSRB Decisions 65.
AUTHORS CITED
Finkelman, Jacob and Goldenberg, Shirley B. Collective
Bargaining in the Public Service—The Federal
Experience in Canada, vol. 2, Montréal: Institute for
Research on Public Policy, 1983.
Sgayias, David et al., Federal Court Practice 1988
Toronto: Carswell Company Limited, 1987.
COUNSEL:
Harvey Newman and Mylène Bouzigon for
applicant.
John E. McCormick for respondent.
Dianne Nicholas for mise-en-cause.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Public Service Staff Relations Board for
respondent.
Soloway, Wright, Ottawa, for mise-en-cause.
The following are the reasons for order ren
dered in English by
TEITELBAUM J.: This is a motion for a writ of
prohibition made by the applicant, the Attorney
General of Canada, preventing the respondent, the
Public Service Staff Relations Board (PssRB) from
considering any further the reference filed by the
mise-en-cause, the Public Service Alliance of
Canada (PsAc) pursuant to section 99 of the
Public Service Staff Relations Act, R.S.C., 1985,
c. P-35 (PSSRA) (PSSRB file No. 169-2-473).
The grounds of the motion, as stated by the
applicant are:
... that the Respondent lacks the required jurisdiction to hear
the Reference pursuant to section 99 of the Public Service
Staff Relations Act, since the matter complained of is not one
that can be the subject of a Reference.
The facts leading up to the present application
are, as stated by Francine Roach, a solicitor with
the law firm of Soloway, Wright, in her affidavit
of September 1, 1989:
2. On December 2, 1985, the Assistant Deputy Minister of
Revenue Canada, Customs and Excise, Mr. M.A. Gallup
addresed a memorandum to officers of his department indicat
ing that part of the Department's Person Years and Cost
Reduction Program, included the Data Capture Initiative
which would result in a Person Years savings of $260,000 in the
Fields Operations Branch. He indicated that one of the thrusts
of this initiative involved the contracting out of the Data
Capture function to the private sector. Contracts to be entered
into with private agencies were to require that acceptable
arrangements for the placement of data entry operators within
those contracting agencies be established. As part of this
initiative therefore efforts were directed at placing previously
federally employed data capture operators in the private sector
as opposed to the public sector.
3. The Public Service Alliance of Canada representatives were
provided with further information regarding this Data Capture
Initiative. The Data Capture Initiative involved the contracting
out between January 5 and July 1, 1987 of 228 person years.
By this initiative, some of the workload was being shifted to the
private sector as it was estimated that the cost of contracting
out the workload of 228 data entry operators was less than the
equivalent salary costs.
5. The Public Service Alliance of Canada filed a reference
under section 98 of the Public Service Staff Relations Act
(Now section 99) alleging that the Respondent had acted in
violation of the collective agreement and the provisions of the
Work Force Adjustment Policy by adopting a course of action
that of contracting out data capture services which has resulted
in affected, surplus or laid off employees.
The bargaining agent for employees in the data
entry operations of the Ministry is the Public
Service Alliance of Canada. It is pursuant to
subsections 5.1.2 and 6.2(d) of the Work Force
Adjustment Policy that the PSAC brought the
above reference.
On April 14, 1989, a hearing was held by the
PSSRB and Maurice Cantin, Q.C., the Vice-Chair
man of the PSSRB, determined that the Board had
jurisdiction to entertain the reference under sec
tion 99 of the PSSRA (Tab 2(e) applicant's record).
This determination was made necessary as a result
of a preliminary objection to jurisdiction made by
the employer, the Treasury Board. As a result of
Cantin's decision that the PSSRB has the necessary
jurisdiction to hear the section 99 reference, a
letter dated July 20, 1989 was sent to counsel for
the Treasury Board and to counsel for the PSAC
informing them that the hearing pursuant to the
section 99 of the PSSRA reference would continue
(Tab 2(f), applicant's record).
As the PSSRB intends to continue with the hear
ing, the applicant brings the present motion
requesting a writ of prohibition.
The Issue
The issue to be determined was satisfactorily
stated by counsel for the applicant:
It is submitted that this motion raises two broad issues .... The
first one ... , is whether this is an appropriate matter for a
prohibition pursuant to section 18 of the Federal Court Act
and, assuming that it is, ought prohibition issue? [Tran-
script, page 4, lines 2 to 7.]
Although the respondent, PSSRB was represent
ed by counsel at the hearing before me, counsel for
the Board did not make any representations.
Applicant's Submission
The applicant submits that the jurisdictional
prerequisites required by the present section 99
reference of the PSSRA are not present and thus,
the PSSRB should be ordered not to proceed with
the reference. Subsection 99(1) of the PSSRA
states, (subsections 99(2) and (3) are not
relevant):
99. (1) Where the employer and a bargaining agent have
executed a collective agreement or are bound by an arbitral
award and the employer or the bargaining agent seeks to
enforce an obligation that is alleged to arise out of the agree
ment or award, and the obligation, if any, is not one the
enforcement of which may be the subjet of a grievance of an
employee in the bargaining unit to which the agreement or
award applies, either the employer or the bargaining agent
may, in the prescribed manner, refer the matter to the Board.
With regard to the issue of whether it is proper
to consider issuing a writ of prohibition against the
PSSRB from proceeding with an application after a
preliminary decision by the Board that it had
jurisdiction, the applicant bases its entire submis
sion on Marceau J.'s reasons in Attorney General
of Canada v. Lachapelle, [the Baril case] [1979] 1
F.C. 377; (1978), 91 D.L.R. (3d) 674 (T.D.) and
the Federal Court of Appeal's decision of this case
reported [sub nom. Baril v. Attorney General of
Canada] at [1980] 1 F.C. 55; (1979), 106 D.L.R.
(3d) 79; 36 N.R. 587. It is the applicant's submis
sion that the present case is very similar to the case
before Marceau J. where he granted a writ of
prohibition notwithstanding the fact that judicial
review of the Adjudicator's final decision under
section 28 of the Federal Court Act f R.S.C., 1985,
c. F-7] would be available. The reasons given by
Marceau J. are, as found on page 379:
It will be seen, however, that the facts in question are straight
forward and not in dispute, that the particulars of the problem
of jurisdiction to be resolved are already clearly established,
that the position taken by respondent adjudicator could have an
immediate and definite impact on the relations of the parties,
and that an immediate clarification of the situation would
certainly be useful.
With regard to the second issue, should a writ of
prohibition issue because of a lack of jurisdiction,
the applicant submits that the Adjudicator,
Cantin, made an error in law in finding that
because the PSAC had a clear interest in the
observance of the alleged obligations under para
graphs 5.1.2 and 6.2(d) of the Work Force Adjust
ment Policy that the PSAC therefore had the right
to make an application pursuant to section 99 of
the PSSRA. The applicant relies on the opinion of
Jacob Finkelman as found in Collective Bargain
ing in the Public Service, Volume Two, Institute
for Research on Public Policy at pages 563 and
564 for the proposition that a writ of prohibition
should issue for lack of jurisdiction. The applicant
also relies on the decision found in Professional
Association of Foreign Service Officers and Trea-
sury Board, file 169-2-7 heard by Edward B.
Jolliffe, Q.C., Chief Adjudicator, on December 14,
1970 and in a more recent decision of Mr. J.
Galipeault a Board member of the PSSRB dated
July 19, 1988 in Canadian Association of Profes
sional Radio Operators and Treasury Board
(1988), 14 PSSRB Decisions 65.
Submission of the Mise-en-cause
The mise-en-cause makes four submissions:
a) That the present application for a Writ of Prohibition is a
re-hearing of the adjudicator's decision.
b) That the adjudicator's decision was upon a question of fact
or mixed fact and law and is thus not reviewable by the
Court.
c) The Board's decision is one within its jurisdiction.
d) That any allegation of lack of jurisdiction is premature, that
the proper remedy for such an allegation is not under
section 18 but under section 28 of the Federal Court Act
after the adjudicator's decision on the merits.
The submissions of the mise-en-cause, PSAC,
rely on the recent jurisprudence following Canadi-
an Union of Public Employees, Local 963 v. New
Brunswick Liquor Corporation, [1979] 2 S.C.R.
227; (1979), 25 N.B.R. (2d) 237; 97 D.L.R. (3d)
417; 26 N.R. 341; 51 A.P.R. 237; 79 CLLC'
14,209 (cuPE) which call for greater judicial def
erence to the expertise of administrative tribunals
than was shown in the cases relied on by the
applicant.
In reply, the applicant submits that the trend
towards judicial deference begun under COPE has
been cut short by the 1984 Supreme Court deci
sion in Syndicat des employés de production du'
Québec et de l'Acadie v. Canada Labour Relations
Board et al., [1984] 2 S.C.R. 412; (1984), 14
D.L.R. (4th) 457; 55 N.R. 321; 14 Admin. L.R.
72; 84 CLLC 14,069 which revived the traditional
distinction between jurisdictional and non-jurisdic
tional error.
I am satisfied that notwithstanding the 1978
and 1979 decisions in the Baril case (supra), this
is not a proper case for prohibition to issue pursu
ant to section 18 of the Federal Court Act. The
decision of Marceau J. and the decision of the
Federal Court of Appeal in the Baril case can be
distinguished on the grounds that counsel for the
respondent, in the Baril case, admitted that that
case was a proper case for prohibition, unlike the
present case where the PSAC submits the opposite
argument.
The relevant Federal Court Act provisions in
determining whether a writ of prohibition may
issue pursuant to section 18 are sections 2, 28, 29
and 18 (Sgayias, Kinnear, Rennie and Saunders,
Federal Court Practice 1988, Carswell 1987).
Sgayias et al note, on page 82, that when a review
under section 18 is sought, the following points
must be considered:
1. Is review being sought against a "federal board, commission
or other tribunal"? This expression is defined in section 2 of the
Act. It is to be noted that the definition does not include the
Crown.
2. Is review precluded by section 29 of the Act? That section
excludes judicial review by either the Trial Division under
section 18 or by the Court of Appeal under section 28 to the
extent that the impugned decision or order can be appealed to
one of the bodies referred to in section 29.
3. Is review precluded by section 28 of the Act? Section 28(3)
of the Act excludes the Trial Division's review jurisdiction
where the Court of Appeal has jurisdiction under section 28 to
review and set aside a federal board's decision or order. This
exception to the Trial Division's supervisory jurisdiction has
spawned much litigation, as both the Trial Division and the
Court of Appeal have grappled with the issue of what decisions
or orders are reviewable under section 28.
The PSSRA does not contain any express right to
appeal to the Federal Court. It appears that there
is nothing in the PSSRA to suggest that the proper
route for review would be an appeal such as would
attract the operation of section 29 of the Federal
Court Act. Thus in the present case, section 29
does not preclude issuance of a writ of prohibition
under section 18 of the Federal Court Act.
It would equally appear that section 2 does not
preclude the issuance of a writ of prohibition in
this case. Section 18 allows issuance of such a writ
against "any federal board, commission or other
tribunal". The PSSRB is a board within the mean
ing of section 18 as defined in section 2 given that
it derives its jurisdiction and powers from an Act
of Parliament. Thus, all that remains to prevent
the operation of section 18 is the preclusion under
subsection 28(3).
A leading case on whether a section 18 review is
precluded by section 28 is Minister of National
Revenue v. Coopers and Lybrand, [1979] 1 S.C.R.
495; (1978), 92 D.L.R. 1; 78 DTC 6258; [1978]
C.T.C. 829. In that case Dickson J. (as he then
was) established a four-fold test for the application
of subsection 28(1), which if proven precludes the
availability of a section 18 review; he states at
pages 499-500 S.C.R.:
The convoluted language of section 28 of the Federal Court
Act has presented many difficulties, as the cases attest, but it
would seem clear that jurisdiction of the Federal Court of
Appeal under that section depends upon an affirmative answer
to each of four questions:
(1) Is that which is under attack a "decision or order" in the
relevant sense?
(2) If so does it fit outside the excluded class, i.e. is it "other
than a decision or order of an administrative nature not
required by law to be made on a judicial or quasi-judicial
basis"?
(3) Was the decision or order made in the course of
"proceedings"?
(4) Was the person or body whose decision or order is chal
lenged a "federal board, commission or other tribunal" as
broadly defined in s. 2 of the Federal Court Act?
In the present case, there is a decision of a
judicial or quasi-judicial nature involved rather
than an administrative decision. The decision was
taken in the course of "proceedings" and the body
whose decision is challenged, the respondent
Board, is a federal board coming within the mean
ing of paragraph 2(g).
All that remains to satisfy the test in Coopers
and Lybrand (supra) is to demonstrate that the
impugned decision is a "decision or order" in the
relevant sense.
A leading case on the meaning of "decision or
order" under section 28 is Anti-dumping Act (In
re) and in re Danmor Shoe Co. Ltd., [1974] 1 F.C.
22; (1974), 1 N.R. 422 (C.A.), which was referred
to by Marceau J. in the Baril case. In the Baril
case the applicant admitted that no review under
section 28 was available because the "impugned
decision is only interlocutory". This is not admit
ted in the case before me.
Subsections 28(4) and (5) of the Federal Court
Act reinforce the view that an application under
section 18 for a writ of prohibition interfering with
a tribunal's interim order or decision is excluded
by subsection 28(3). A plain reading of the Act
suggests the following:
i) where the Federal Court of Appeal has jurisdiction to review
a decision or order, the Trial Division has none;
ii) a tribunal to which section 28(1) applied may at any stage
refer any question of law or jurisdiction, or practice and
procedure, to the Federal Court of Appeal for hearing and
determination; and
iii) where the tribunal does so, the Court of Appeal shall hear
the matter without delay and in a summary fashion.
When reading section 28 as a whole, it becomes
clear that generally the matters referred to in
subsection 28(4) should only be infrequently con
sidered by boards and tribunals and where it is
necessary to do so, a summary hearing of the
matter will quickly be given by the Court of
Appeal. This was ostensibly done for the purpose
of making the federal administrative law process
more timely and affordable. It would be obviously
counterproductive to suggest that in addition to
the remedy in subsection 28(4), an objection to an
interim or preliminary decision brought by a dis
gruntled party before the board could constitute
grounds for a section 18 application.
Far from allowing a section 18 review of inter
locutory decisions, the decision in Danmor Shoe
(supra) forcefully denies such a view. Danmor
Shoe (supra) does preclude a decision or order of a
preliminary or interim nature from being reviewed
under section 18 (unless—and this is an important
caveat—the board has express authority for
making such a decision), but it does not follow
from this that review from such decisions therefore
lies under section 18. What Jackett C.J. actually
said [at page 29 F.C.] in Danmor Shoe (supra),
was that such decisions were not really decisions at
all:
There is a clear difference between a "decision" by the Board
of something that it has "jurisdiction or powers" to decide and
a declaration by the Board as to the nature of the powers to be
exercised by it when it comes to make the decision that it has
"jurisdiction or powers" to make. Once the Board decides
something in a particular case that it has "jurisdiction or
powers" to decide, that decision has legal effect and the Board's
powers in regard to that question are spent. When, however, the
Board takes a position with regard to the nature of its powers
upon which it intends to act, that "decision" has no legal effect.
In such a case, as a matter of law, nothing has been
decided....
My conclusion, therefore, is that the Board's declaration that
it did not have jurisdiction to review the validity of the "pre-
scriptions" had no legal effect so long as that declaration was
made prior to and therefore apart from, the decisions disposing
of the applicants' appeals. It follows that the declaration is not
a "decision" that this Court has jurisdiction to set aside under
section 28(1) of the Federal Court Act.
It would also follow that the Trial Division
would have no jurisdiction to set aside such a
"decision" under section 18. The crucial question
therefore becomes: "Does the Board have
independent statutory authority under its enabling
legislation to make an interlocutory decision on
jurisdiction as it did?" If so, appeal will lie to the
Federal Court of Appeal under subsection 28(1).
If not, the Board must decide in its discretion
whether to refer the question to the Federal Court
of Appeal under subsection 28(4) or to proceed
instead with the case on its merits and grapple
with the jurisdictional or preliminary matter as
best it can, as part of its final decision, subject
always to the risk of being corrected later on by
the Court of Appeal upon an application for
review under subsection 28(1).
A Board should not proceed to decide jurisdic
tional matters prior to and therefore apart from its
actual disposition of the reference unless it has an
express statutory authority for doing so. If the
Board does not have such statutory authority but
decides the matter itself, in a preliminary manner,
its decision on that matter is of no force; and by
failing in this manner to deliver. a decision review-
able under section 28 it does not by that failure
create authority for review under section 18. I am
satisfied that a section 18 review is precluded in
cases where the federal board, tribunal or commis
sion makes a preliminary or interim decision or
order, other than a decision or order of an
administrative nature not required by law to be
made on a judicial or quasi-judicial basis. A sec
tion 18 review would lie with respect to decisions
of an administrative nature and section 28 review
will lie with respect to preliminary decisions which
the Board has express authority to make and is a
decision from which legal rights or obligations
follow.
The determinative question to the present issue
is whether the respondent Board had express au
thority to determine its own jurisdiction. The rele
vant provisions of the Board's enabling jurisdiction
are found in paragraph 100(3)(c) of the PSSRA
and in section 87 of the P.S.S.R.B. Regulations
and Rules of Procedure [C.R.C., c. 1353]. These
provisions read as follows:
1o0... .
(3) The Board may make regulations in relation to the
adjudication of grievances, including regulations respecting
(c) the procedure to be followed by adjudicators;
87. (1) Subject to subsection (2) but notwithstanding any
other provision of these Regulations, the Board may dismiss a
grievance on the ground that it is not a grievance that may be
referred to adjudication.
(2) Before dismissing a grievance pursuant to subsection (1),
in order to determine whether or not a grievance may be
referred to adjudication, the Board may
(a) invite the parties to submit written argument within a
time and a manner specified by it; or
(b) hold a preliminary hearing
(4) An aggrieved employee may, within 25 days after he has
been served with a decision made pursuant to subsection (1),
file with the registrar a request that the Board review its
decision.
(5) A request for review filed pursuant to subsection (4)
shall contain a concise statement of the facts and reasons upon
which the aggrieved employee relies.
(6) Upon the filing of a request for review, the Board may
(a) revoke its decision and direct that the grievance be
proceeded with in the manner set forth in sections 79 to 86;
(b) serve the aggrieved employee and any other person who,
in the opinion of the Board, may be affected by the grievance
with a notice of hearing to show cause why the grievance
should be heard; or
(c) confirm its decision dismissing the grievance.
The regulations under section 87 apply to the
hearing of grievances under section 91 of the Act,
and, as well, to the hearing of section 99 refer
ences. Subsection 99(3) states:
99.. ..
(3) The Board shall hear and determine any matter referred
to it pursuant to subsection (1) as though the matter were a
grievance, and subsection 96(2) and sections 97 and 98 apply to
the hearing and determination of that matter.
From the above, the respondent Board has the
regulatory and statutory authority to make prelim
inary decisions. In other words, it is authorized to
decide in a preliminary fashion whether the matter
before it is a proper matter for a section 99
reference.
Given the PSSRB'S authority under section 87 of
its regulations (paragraph 87(2)(b)), I am satis
fied that this case is a proper one for review under
section 28 of the Federal Court Act. I believe the
Board's decision is a final decision in the sense that
it creates legal rights or obligations. I believe that
review, in the circumstances of this case, does not
lie under section 18 of the Federal Court Act.
The application is refused. No award as to costs
is made.
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