A-409-78
The Queen in right of Canada (Applicant)
v.
Public Service Staff Relations Board, C. A.
Edwards, D. G. Pyle and R. Steward (Respond-
ents)
and
K. J. MacDonald (Mis -en-cause)
Court of Appeal, Jackett C.J., Pratte and Urie
JJ.—Ottawa, January 24 and 30, 1979.
Judicial review — Public Service — P.S.S.R.B. denied
lawyer employed by National Energy Board the designation of
"person employed in a managerial or confidential capacity" —
Lawyer argued that he was employed in confidential capacity
to general counsel, himself designated executive with duties in
relation to development and administration of programs —
Whether or not P.S.S.R.B. resorted to wrong principles in
deciding against mis -en-cause employed in confidential
capacity in applying Cuddihy and Norton — Public Service
Staff Relations Act, R.S.C. 1970, c. P-35, s. 2 — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to set aside a decision of the
Public Service Staff Relations Board rejecting applicant's
request that the mis -en-cause, a lawyer employed as legal
counsel with the National Energy Board, be designated a
"person employed in a managerial or confidential capacity".
Applicant's sole contention before the Board was that the
mis -en-cause fell within paragraph (/) of the definition as a
person who was employed in a confidential capacity to the
general counsel of the National Energy Board, himself a person
designated a person having "executive duties and responsibili
ties in relation to the development and administration of gov
ernment programs". Applicant argues that the Board, in apply
ing principles enunciated in Cuddihy and Norton, resorted to
wrong principles in determining whether or not the mis -en-
cause was employed in a confidential capacity.
Held, the application is dismissed. The so-called "principles"
applied by the Board are not only wrong but bear no relation at
all to the question to be answered. The word "confidential" in
paragraph (/) of the definition is used in its usual sense which,
contrary to what the Board assumed, does not imply any
delegation of functions. An executive does not delegate func
tions to his legal counsel; the counsel's position nevertheless is
confidential to the executive. The Board's decision need not be
set aside, however, because applicant must show that the
mis -en-cause was not only holding a position confidential to
general counsel, but also (1) that general counsel was a person
having "executive duties and responsibilities in relation to the
development and administration of government programs"; and
(2) the confidential position of the mis -en-cause related to those
executive duties. General counsel's sole executive responsibility
was directing the law branch of the National Energy Board. If
the position of the mis -en-cause was confidential to general
counsel's, it was not in relation to his executive responsibilities
since the confidentiality of his position resulted from general
counsel and himself being legal counsel to the Board, and in
that capacity having to work in collaboration.
Cuddihy and Norton, P.S.S.R. Reports K 745, referred to.
APPLICATION for judicial review.
COUNSEL:
E. R. Sojonky for applicant.
M. Wexler for Professional Institute of the
Public Service of Canada.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Public Service Staff Relations Board,
Ottawa, for Public Service Staff Relations
Board.
Professional Institute of the Public Service of
Canada, Ottawa, for Professional Institute of
the Public Service of Canada.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is a section 28 application to set
aside a decision of the Public Service Staff Rela
tions Board rejecting a request of the applicant
that a Mr. MacDonald, a lawyer employed as legal
counsel with the National Energy Board, be desig
nated as a "person employed in a managerial or
confidential capacity".
The definition of the expression "person
employed in a managerial or confidential capaci
ty" is found in section 2 of the Public Service
Staff Relations Act, R.S.C. 1970, c. P-35, which
reads in part as follows:
2. In this Act
"person employed in a managerial or confidential capacity",
means any person who
(a) is employed in a position confidential to the Governor
General, a Minister of the Crown, a judge of the Supreme or
Exchequer Court of Canada, the deputy head of a depart
ment or the chief executive officer of any other portion of the
Public Service, or .vp
(b) is employed as a legal officer in the Department of
Justice,
and includes any other person employed in the Public Service
who in connection with an application for certification of a
bargaining agent for a bargaining unit is designated by the
Board, or who in any case where a bargaining agent for a
bargaining unit has been certified by the Board is designated
in prescribed manner by the employer, or by the Board on
objection thereto by the bargaining agent, to be a person
(c) who has executive duties and responsibilities in relation
to the development and administration of government
programs,
(/) who is employed in a position confidential to any person
described in paragraph (b), (c), (d) or (e), or
(g) who is not otherwise described in paragraph (c), (d), (e)
or (/), but who in the opinion of the Board should not be
included in a bargaining unit by reason of his duties and
responsibilities to the employer;
The applicant's sole contention before the Board
was that Mr. MacDonald fell within paragraph (f)
of the definition as a person who was employed in
a confidential capacity to Mr. F. H. J. Lamar, the
general counsel of the National Energy Board,
himself a person described in paragraph (c) as
having "executive duties and responsibilities in
relation to the development and administration of
government programs".
The applicant's main argument in support of
this section 28 application is that the Board resort
ed to wrong principles in order to determine
whether Mr. MacDonald was employed in a confi
dential capacity to Mr. Lamar. Those principles
were those that had been enunciated by the Board
in a previous decision (Cuddihy and Norton,
P.S.S.R. Reports K 745) when it had said this [at
pages K 747-K 748] with reference to the interpre
tation of paragraph (f) of the definition (then
identified as head (vi) of section 2(u)):
At this stage, we cannot go beyond some very broad general
statements of principle and these statements are not to be taken
as being exhaustive by any means. It appears to us that
Parliament must have intended head (vi) to apply at least in the
following circumstances:
(i) Where the duties of a position occupied by a person
described in heads (ii) to (v) of s. 2(u) are so onerous that he
is compelled to delegate to another a significant portion of
his duties of the type that constitute the basis for his having
been designated or of the type that warrant a finding that he
is a person described in heads (ii) to (v) of s. 2(u) and where
the duties so delegated require skill, judgement, trust and
confidence;
(ii) where the services rendered by the person alleged to be
confidential are of such a nature that the person designated
or described under heads (ii) to (v) of s. 2(u) would normally
have to rely to a substantial extent on the "confidential"
person to perform them, having regard to modern technology
and office organization.
The second type of confidential person just described would
include, inter alia, a person performing secretarial duties of a
requisite kind for a person designated or described under heads
(ii) to (v) of s. 2(u) and related to the duties that constitute the
basis for his having been designated or described. There may
appear to be a lack of definition in what we have said; this is
inherent in the difficult process we face constantly in determin
ing which persons are "confidential".
The Board, in the present case, clearly applied
those principles. In its decision, it states as follows
the issue to be determined:
Inconformity with the principles enunciated by the Board in
Cuddihy and Norton, in order to exclude Mr. MacDonald it
must first be established that Mr. Lamar's duties are so
onerous that he is compelled to delegate to Mr. MacDonald a
significant portion of his executive duties and responsibilities in
relation to the development and administration of government
programs, and that the duties so delegated require the exercise
of skill, judgment, trust and confidence; or, that the duties
delegated by Mr. Lamar to Mr. MacDonald are of such a
nature that Mr. Lamar would normally have to rely to a
substantial extent on Mr. MacDonald to perform them, having
regard to modern technology and office organization.
This argument of the applicant is, in my view,
well founded. In so far as I can understand them,
the so-called "principles" applied by the Board
appear to me not only to be wrong but to bear no
relation at all with the question to be determined.
The word "confidential" in paragraph (I) of the
definition is used in its usual sense which, contrary
to what the Board assumed, does not imply any
delegation of functions. An executive does not
delegate any functions to his legal counsel; the
counsel's position is nevertheless confidential to
the executive.
The conclusion of the Board that Mr. Mac-
Donald was not employed in a position confidential
to Mr. Lamar is, therefore, based on an error of
law.
It does not follow, however, that the Board's
decision must be set aside. In order to succeed
before the Board, the applicant had to show, not
only that Mr. MacDonald held a position confi
dential to Mr. Lamar, but also
(1) that Mr. Lamar was a person described in
paragraph (c) who had "executive duties and
responsibilities in relation to the development
and administration of government programs";
and
(2) that the confidential position of Mr. Mac-
Donald related to those executive duties of Mr.
Lamar.
The only executive responsibility of Mr. Lamar,
according to the record, was that of directing the
law branch of the National Energy Board. If Mr.
MacDonald's position was confidential to Mr.
Lamar, it was not in relation to his executive
responsibilities since the confidentiality of Mr.
MacDonald's position resulted solely from the fact
that both he and Mr. Lamar were legal counsel to
the Board and, in that capacity, had to work in
collaboration. For that reason, in my view, Mr.
MacDonald could not be said to be "employed in a
position confidential to" a person described in
paragraph (c) of the definition.
For these reasons, I would dismiss the
application.
* * *
JACKETT C.J.: I concur.
* * *
URIE J.: I have read the reasons for judgment of
my brother Pratte J. and I agree with his conclu
sion and the reasons whereby he reached such a
conclusion.
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.