Digests

Canada (Attorney General) v. Social Science Employees Association

A-691-02

2004 FCA 165, Nadon J.A.

26/4/04

30 pp.

Judicial review of Public Service Staff Relations Board's (Board) decision concluding respondent unions met burden of proving employer discriminated against them and their members, contrary to Public Service Staff Relations Act (PSSRA), ss. 8 and 9--Respondents alleging Treasury Board gave preferential treatment to non-unionized employees in respect of implementation of retroactive salary revisions-- Collective agreements often signed after expiry of previous agreement--Latter continues to apply until new agreement concluded--Effect of retroactive application of new agreement that wages recalculated as if new agreement coming into force immediately after expiry of previous agreement-- Matter more complex when employees appointed to new positions during period subject to retroactive application of new agreement--Prior to decision in Canada (Attorney General) v. Lajoie (1992), 149 N.R. 223 (F.C.A.), when employee promoted, transferred or demoted during period subject to retroactive application of new agreement, wages recalculated whenever new agreement provided for retroactive application of wage increases--Such recalculation would result in either increase or decrease in rate of pay of employee --Collective agreements herein providing rates of pay to be paid as if signed on effective date of revision in rates of pay--Treasury Board bulletin dated November 8, 2000 informing heads of Human Resources that non-unionized employees who were promoted, transferred or deployed during period subject to retroactive application of wage increases, to be paid in accordance with method dictated in Lajoie, except where such treatment providing lesser benefit--January 31, 2001 bulletin providing rates of pay resulting from promotions, transfers, deployments, acting situations of represented employees not recalculated during retroactive period in accordance with Lajoie--Since March 6, 2002, Treasury Board applies Lajoie to all employees, unionized or not--Board's decision patently unreasonable --Board erred in concluding distinction in treatment by Treasury Board between unionized and non-unionized employees, i.e. application of Lajoie method of recalculation to unionized employees only, on its face, discriminatory-- Pursuant to Financial Administration Act, ss. 7 and 11, Treasury Board having right to fix terms and conditions of employment of non-unionized employees--As to government's unionized employees, terms and conditions of employment resulting from collective bargaining process--PSSRA, s. 9(1), prohibiting employer from discriminating against employee organization, not preventing making of distinctions between various groups of employees, whether unionized or not-- Although s. 9(1) effectively meaning distinctions arising from collective bargaining process which find their way into collective agreements not constituting discrimination, s. 9(1) silent as to non-unionized employees and their terms of employment--S. 9(1) not preventing employer from making distinctions between unionized, non-unionized employees-- Otherwise whenever non-unionized employees receive terms of employment more favourable than those negotiated on behalf of unionized employees, latter could then claim discrimination on basis of union membership--That cannot be--Hence, distinctions in conditions of employment of unionized and non-unionized employees perfectly legitimate and cannot give rise to complaint of discrimination under PSSRA, ss. 8 and 9, unless purpose of distinction to harm unions and members--Board erred in finding Treasury Board had to justify distinction in treatment--Since legitimate for Treasury Board to make distinctions between unionized, non-unionized employees, no basis to demand justification for distinction--Nothing in Act, authorities supporting Board's view--Board could not find anti-union animus simply on basis of Treasury Board's failure to justify distinction--Since no evidence before Board distinction in treatment result of anti-union animus, Board could not draw inference that it did--PSSRA, s. 23(1)(a) requiring Board to examine, enquire into any complaint pertaining to employer's failure to observe any prohibition contained in ss. 8, 9 or 10--Such proof resting with complainants--Inference of anti-union animus based only on failure to justify distinction, in effect reversing onus of proof--No evidence before Board supporting conclusion of anti-union animus on part of Treasury Board--Board's errors result from misunderstanding of Lajoie decision--But in context of discrimination complaints under PSSRA, s. 23 merits of Lajoie irrelevant--Application allowed--Public Service Staff Relations Act, R.S.C., 1985, c. P-35, ss. 8 (as am. by S.C. 1992, c. 54, s. 34), 9 (as am. idem, s. 35), 10 (as am. idem, s. 36), 23 (as am. idem, s. 40)--Financial Administration Act, R.S.C., 1985, c. F-11, ss. 7 (as am. by S.C. 1991, c. 24, ss. 2, 49, Sch. 1, No. 1), 11 (as am. by R.S.C., 1985 (1st Supp.), c. 9. s. 22; S.C. 1992, c. 54, s. 81; (1995), c. 44, s. 51; 1996, c. 18, s. 5).