A-885-77
Professional Institute of the Public Service of
Canada (Applicant)
v.
Public Service Staff Relations Board (Respond-
ent)
Court of Appeal, Jackett C.J., Heald and Urie
JJ.—Ottawa, April 26 and 27, 1978.
Judicial review — Public Service — Public Service Staff
Relations Board's arbitral powers — Board finding matters
not subject to arbitration to be matters not falling within s.
70(1) of the Public Service Staff Relations Act or prohibitions
in balance of s. 70 — Whether or not s. 70(1) contains an
exclusive definition of matters that, subject to s. 70 prohibi
tions, may be subject of an arbitral award — 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, ss. 63, 67,
70(1),(2),(4).
This is a section 28 application to set aside a decision of the
Public Service Staff Relations Board (acting as an Arbitration
Board) whereby the Board decided that certain matters that
had been referred to it for arbitration were not within its
arbitration jurisdiction and rendered a substantive decision only
with regard to other matters that had been referred to it for
arbitration. The matters held not subject to arbitration were
found by the Board to be matters not falling within section
70(1) of the Public Service Staff Relations Act, or to be
matters falling within the prohibitions in the balance of section
70. Applicant argues that section 70(1) does not contain an
exclusive definition of the matters that, subject to section 70
prohibitions, may be the subject of "an arbitral award". The
contention is that anything that may be part of the subject
matter of a "collective agreement" may, subject to the prohibi
tions of section 70(2) to (4), be the subject of an arbitral
award. If this contention is correct, to the extent that the
decision attacked refuses jurisdiction, the decision would be
based on an error in law.
Held, the application is dismissed. The Act seems carefully
constructed to provide (a) that an arbitral award is limited to
matters in dispute specified in the section 63 notice; (b) that
the section 63 notice is limited to terms and conditions "that
may be embodied in an arbitral award" and (c) that by virtue
of section 70(1) "an arbitral award may deal with" the matters
therein described. There is no doubt that the statute expressly
limits arbitral awards to the matters described in section 70(1).
No other matter can be the subject of arbitration under the Act
even though it might be included in a collective agreement by
agreement of the parties. No different interpretation can be put
on the statute having regard to the applicant's submissions.
APPLICATION for judicial review.
COUNSEL:
Muriel I. Wexler for applicant.
John E. McCormick for respondent.
David T. Sgayias for Deputy Attorney Gener
al of Canada.
SOLICITORS:
Legal Counsel for Professional Institute of
the Public Service of Canada, Ottawa, for
applicant.
Legal Counsel for Public Service Staff Rela
tions Board, Ottawa, for respondent.
Deputy Attorney General of Canada for
Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is a section 28 application to
set aside a decision of the Public Service Staff
Relations Board (acting as an Arbitration Board)
whereby the Board decided, inter alla, that certain
matters that had been referred to it for arbitration
were not within its arbitration jurisdiction and
rendered a substantive decision only with regard to
the other matters that had been referred to it for
arbitration.
To understand what is raised by the section 28
application, it is necessary to have in mind the
relevant part of the Public Service Staff Relations
Act, R.S.C. 1970, c. P-35.'
That statute is an "Act respecting employer and
employee relations in the Public Service of Cana-
da" and the Public Service Staff Relations Board
is constituted by sections 11 et seq.
Part II (sections 26 et seq.) deals with collective
bargaining and collective agreements. 2 Sections 27
et seq. provide for the certification of bargaining
agents for units of employees appropriate for col-
' The relevant provisions are set out in an appendix hereto.
2 A collective agreement is, by definition, an agreement
between the employer—Her Majesty—and a bargaining agent
"containing provisions respecting terms and conditions of
employment and related matters".
lective bargaining. Section 36(1) requires a bar
gaining agent for a bargaining unit to elect, in
effect, as between
(a) arbitration, and
(b) conciliation,
as the process for resolution of any dispute. Sec
tion 50 provides for collective bargaining for the
purpose of concluding collective agreements.
Part III (sections 59 et seq.) provides for resolu
tion of disputes where the parties have failed to
agree on a collective agreement. Where the elec
tion under section 36 is for arbitration, sections 63
to 76 apply to the resolution of such a dispute.
Sections 60 and 61 provide for the constitution of
the Board for arbitration.
Section 63 provides that where the parties have
been unable to reach agreement on any term or
condition of employment "that may be embodied
in an arbitral award", either party may request
arbitration "in respect of that term or condition of
employment". Section 67 provides that "Subject to
section 70", the matters in dispute specified inter
alia "in the notice under section 63" 3 constitute
"the terms of reference of the Board in relation to
the request for arbitration" and requires the Board
to "render an arbitral award in respect thereof".
Section 70(1) provides that "Subject to this sec
tion" an arbitral award "may deal with rates of
pay, hours of work, leave entitlements, standards
of discipline and other terms and conditions of
employment directly related thereto". The other
subsections of section 70 contain prohibitions
against certain classes of matters being dealt with
in an arbitral award. Section 74 provides that the
"rates of pay, hours of work, leave entitlements,
standards of discipline and other terms and condi
tions of employment directly related thereto that
are the subject of an arbitral award" shall, subject
to appropriation of the necessary money, be imple
mented within a specified period.
Such is a summary of what seem to me to be the
relevant provisions of the statute.
The matters that the Board, by the decision
attacked, held were not subject to arbitration were
3 Section 64 provides for a notice by the other party but that
is not relevant here.
found by the Board to be matters not falling within
section 70(1) or to be matters falling within the
prohibitions in the balance of section 70.
The applicant's position is, in effect, as I under
stand it, that section 70(1) does not contain an
exclusive definition of the matters that, subject to
the section 70 prohibitions, may be the subject of
"an arbitral award". The contention is that any
thing that may be part of the subject matter of a
"collective agreement" may, subject to the prohi
bitions in subsections (2) to (4) of section 70, be
the subject of an arbitral award. If this contention
is correct, to the extent that the decision attacked
refuses jurisdiction in respect of certain terms or
conditions of employment on the ground that they
do not fall within the subject matters specifically
described in section 70(1), the decision would be
based on an error in law.
As I read the Act, the applicant's contention
cannot be accepted. The Act seems carefully con
structed to provide
(a) that an arbitral award is limited to matters
in dispute specified in the section 63 notice 4
(section 67),
(b) that the section 63 notice is limited to terms
and conditions "that may be embodied in an
arbitral award" [the italics are mine], and
(c) that by virtue of section 70(1) "an arbitral
award may deal with" the matters therein
described [the italics are mine].
It does not seem to me that there is any doubt that
the statute expressly limits arbitral awards to the
matters described in section 70(1). I am, therefore,
of opinion that no other matter can be the subject
of arbitration under the Act even though it might
be included in a collective agreement by agree
ment of the parties.
4 For present purposes, I am ignoring the possibility of a
section 64 notice. As it seems to me, the presence in section
63(1) of the words "that may be embodied in an arbitral
award" is quite inconsistent with the view that arbitration is
available in respect of any term or condition that might, by
agreement, find its way into a "collective agreement".
Having regard to the clear meaning of the provi
sions to which I have referred, I am not persuaded
that any different interpretation can be put on the
statute having regard to the applicant's submis
sions based
(a) on the contention that section 70(3) is of no
effect unless section 70(1) is read as the appli
cant seeks that it be read, and
(b) on a comparison between the subject matter
of arbitration under the Act and the subject
matter of conciliation and strike under the
statute.
In any event, I am not satisfied that those submis
sions would constrain one, even if there was an
element of ambiguity, to the interpretation of sec
tion 70(1) for which the applicant contends.
For the above reasons, I am of opinion that the
Board, by the decision that is under attack in these
proceedings, did not err in law in acting on the
view that section 70(1) provided for a "limited
scope of arbitrable issues" and that the section 28
application should, therefore, be dismissed.
APPENDIX
R.S.C. 1970, c. P-35
(as amended)
An Act respecting employer and employee relations in the
Public Service of Canada
1. This Act may be cited as the Public Service Staff Rela
tions Act.
2. In this Act
"collective agreement" means an agreement in writing entered
into under this Act between the employer, on the one hand,
and a bargaining agent, on the other hand, containing provi
sions respecting terms and conditions of employment and
related matters;
"employer" means Her Majesty in right of Canada as repre
sented by,
(a) in the case of any portion of the public service of Canada
specified in Part I of Schedule I, the Treasury Board, and
(b) in the case of any portion of the public service of Canada
specified in Part II of Schedule I, the separate employer
concerned;
"process for resolution of a dispute" means either of the
following processes for the resolution of a dispute, namely:
(a)- by the referral of the dispute to arbitration, or
(b) by the referral thereof to a conciliation board;
PART I
PUBLIC SERVICE STAFF RELATIONS BOARD
11. (1) There shall be a Board to be called the Public
Service Staff Relations Board, consisting of a Chairman, a
Vice-Chairman, not less than three Deputy Chairmen and such
other full-time members and such part-time members as the
Governor in Council considers necessary to discharge the
responsibilities of the Board.
PART II
COLLECTIVE BARGAINING AND COLLECTIVE AGREEMENTS
36. (1) Subject to subsection 37(2), every bargaining agent
for a bargaining unit shall, in such manner as may be pre
scribed, specify which of either of the processes described in the
definition "process for resolution of a dispute" in section 2 shall
be the process for resolution of any dispute to which it may be a
party in respect of that bargaining unit.
50. Where notice to bargain collectively has been given, the
bargaining agent and the officers designated to represent the
employer shall, without delay, but in any case within twenty
days after the notice was given or within such further time as
the parties may agree, meet and commence to bargain collec
tively in good faith and make every reasonable effort to con
clude a collective agreement.
56. ...
(2) No collective agreement shall provide, directly or in
directly, for the alteration or elimination of any existing term
or condition of employment or the establishment of any new
term or condition of employment,
(a) the alteration or elimination of which or the establish
ment of which, as the case may be, would require or have the
effect of requiring the enactment or amendment of any
legislation by Parliament, except for the purpose of appro
priating moneys required for its implementation, or
(b) that has been or may be, as the case may be, established
pursuant to any Act specified in Schedule III.
PART III
PROVISIONS APPLICABLE TO RESOLUTION OF DISPUTES
59. Where the employer and the bargaining agent for a
bargaining unit have bargained collectively in good faith with a
view to concluding a collective agreement but have failed to
reach agreement,
(a) if the process for resolution of a dispute applicable to the
bargaining unit is by the referral thereof to arbitration,
sections 63 to 76 apply to the resolution of the dispute; and
(b) if the process for resolution of a dispute applicable to the
bargaining unit is by the referral thereof to a conciliation
board, sections 77 to 89 apply to the resolution of the dispute.
63. (1) Where the parties to collective bargaining have bar
gained collectively in good faith with a view to concluding a
collective'agreement but have been unable to reach agreement
on any term or condition of employment of employees in the
relevant bargaining unit that may be embodied in an arbitral
award, either party may, by notice in writing to the Secretary
of the Board given
(a) at any time, where no collective agreement has been
entered into by the parties and no request for arbitration has
been made by either party since the commencement of the
bargaining, or
(b) not later than seven days after any collective agreement
is entered into by the parties, in any other case,
request arbitration in respect of that term or condition of
employment.
67. (1) Subject to section 70, the matters in dispute speci
fied in the notice under section 63 and in any notice under
section 64 constitute the terms of reference of the Board in
relation to the request for arbitration, and the Board shall, after
considering the matters in dispute together with any other
matter that the Board considers necessarily incidental to the
resolution of the matters in dispute, render an arbitral award in
respect thereof.
70. (1) Subject to this section, an arbitral award may deal
with rates of pay, hours of work, leave entitlements, standards
of discipline and other terms and conditions of employment
directly related thereto.
(2) Subsection 56(2) applies, mutatis mutandis, in relation
to an arbitral award.
(3) No arbitral award shall deal with the standards, proce
dures or processes governing the appointment, appraisal, pro
motion, demotion, transfer, lay-off or release of employees, or
with any term or condition of employment of employees that
was not a subject of negotiation between the parties during the
period before arbitration was requested in respect thereof.
(4) An arbitral award shall deal only with terms and condi
tions of employment of employees in the bargaining unit in
respect of which the request for arbitration was made.
74. The rates of pay, hours of work, leave entitlements,
standards of discipline and other terms and conditions of
employment directly related thereto that are the subject of an
arbitral award shall, subject to the appropriation by or under
the authority of Parliament of any moneys that may be
required by the employer therefor, be implemented by the
parties within a period of ninety days from the date on and
from which it becomes binding on the parties or within such
longer period as, on application to the Board by either party,
appears reasonable to the Board.
* * *
HEALD J. concurred.
* * *
URIE 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.