Ottawa, Ontario, August 16, 2006
PRESENT: The Honourable Madam Justice Hansen
BETWEEN:
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION
AND GENERAL WORKERS' UNION OF CANADA ("CAW-Canada")
AND ITS LOCAL 5454, the
CANADIAN AIR TRAFFIC CONTROLLERS ASSOCIATION
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
(as represented by TREASURY BOARD SECRETARIAT)
REASONS FOR ORDER AND ORDER
FACTS
[1] The parties are generally in agreement as to the facts of the case. The Applicant and the Respondent were parties to a collective agreement concerning employees in the Air Traffic Control Group. The collective agreement expired on June 30, 2004, but was continued during the course of subsequent negotiations and arbitration.
[2] As the parties were unable to settle a new collective agreement, on January 13, 2005, the Applicant filed with the Public Service Staff Relations Board a request for the appointment of a Board of Arbitration under section 64 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 to resolve the outstanding issues in relation to a new collective agreement. As a result, a Board of Arbitration was established on March 23, 2005 (Board).
[3] Although a total of eight issues were identified, the primary concerns of the Applicant were twofold: first, a pay adjustment to bridge the growing gap between the air traffic controllers at NAV Canada and the eleven members in the Air Traffic Control Group (AI Group); and second, a significantly enhanced initial annual leave entitlement to reflect the unique senior demographic of the eleven employees.
[4] On April 1, 2005, the Public Service Staff Relations Act was repealed with the enactment of the Public Service Labour Relations Act, S.C. 2003, c. 22, Part 1 (Act). The Board was continued under the new legislation and a hearing was held on July 25 and 26, 2005.
[5] Section 148 of the Act provides the factors to be considered by the Board in making an arbitral award:
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148. In the conduct of its proceedings and in making an arbitral award, the arbitration board must take into account the following factors, in addition to any other factors that it considers relevant:
(a) the necessity of attracting competent persons to, and retaining them in, the public service in order to meet the needs of Canadians;
(b) the necessity of offering compensation and other terms and conditions of employment in the public service that are comparable to those of employees in similar occupations in the private and public sectors, including any geographic, industrial or other variations that the arbitration board considers relevant;
(c) the need to maintain appropriate relationships with respect to compensation and other terms and conditions of employment as between different classification levels within an occupation and as between occupations in the public service;
(d) the need to establish compensation and other terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; and
(e) the state of the Canadian economy and the Government of Canada’s fiscal circumstances. |
148. Dans la conduite de ses séances et dans la prise de ses décisions, le conseil d’arbitrage prend en considération les facteurs qui, à son avis, sont pertinents et notamment :
a) la nécessité d’attirer au sein de la fonction publique des personnes ayant les compétences voulues et de les y maintenir afin de répondre aux besoins des Canadiens;
b) la nécessité d’offrir au sein de la fonction publique une rémunération et d’autres conditions d’emploi comparables à celles des personnes qui occupent des postes analogues dans les secteurs privé et public, notamment les différences d’ordre géographique, industriel et autre qu’il juge importantes;
c) la nécessité de maintenir des rapports convenables, quant à la rémunération et aux autres conditions d’emploi, entre les divers échelons au sein d’une même profession et entre les diverses professions au sein de la fonction publique;
d) la nécessité d’établir une rémunération et d’autres conditions d’emploi justes et raisonnables compte tenu des qualifications requises, du travail accompli, de la responsabilité assumée et de la nature des services rendus;
e) l’état de l’économie canadienne et la situation fiscale du gouvernement du Canada.
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[6] On September 6, 2005, the Board issued its decision. This decision is now before the Court on judicial review. In its decision, the Board framed the question to be determined as whether it should step in to provide relief to the Applicant on two issues - one involving pay adjustment and the second relating to leave entitlement. The pertinent paragraphs of the decision read:
The primary element of s.148 (a) and (b) of the new Act seems to be the concept of necessity, in operational terms. S.148 (a) refers broadly to the issue of recruitment and retention. S.148 (b) speaks more narrowly to the market conditions of compensation and terms and conditions packages with regard to comparable employees to any given group in the public service. This board reads both of these subsections (refined from the more ambiguous language utilized in s.67 (a) and (b) of the old Public Service Staff Relations Act) as directing a board of arbitration to consider whether the public service is able to attract and retain competent persons. In other words, the central issue is whether the public service is experiencing recruitment and retention difficulties. Therefore, this board is not persuaded by the Local’s contention that s. 148 (b) stands quite apart from s. 148 (a) and is “about equities and fairness; ensuring that the public sector is not looked upon as ‘cheap labour’ vis-à-vis the private sector.” Rather, in light of all five considerations set down for a board of arbitration by s. 148, in the absence of demonstrated necessity, in operational terms, what is warranted are economic increases in line with those that now prevail, over the course of the relevant three years, in most of the public service.
The Employer asserts that it has experienced absolutely no recruitment and retention difficulties with regard to the AI group and is confident that this will continue to be the case. … Time will tell on all three of these [the Local’s] speculative points [on recruitment]. However, in light of the current data, s. 148 (b) does not invite this board to engage in any preemptive wage restructuring or in positing an unprecedented initial five weeks of annual leave for the AI group.
ISSUE
[7] The issue to be determined in this application for judicial review is narrow, namely, whether the Board committed a reviewable error by misinterpreting subsection 148(b) of the Act and by misapplying or failing to apply this subsection of the Act.
STANDARD OF REVIEW
[8] The Applicant submits that the appropriate standard of review is correctness. The Respondent contends that the appropriate standard of review is patent unreasonableness.
[9] While traditionally Courts have accorded a high degree of deference to decisions of labour arbitrators involving the interpretation and application of collective agreements, in Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, [2004] 1 S.C.R. 609 Justice Major cautioned that “[i]t is important to recognize that the same standard of review will not necessarily apply to every ruling made by an arbitrator during the course of arbitration.” Although not made in the context of interest arbitration decisions, Justice Major’s observation underscores the need to conduct a pragmatic and functional analysis to discern Parliament’s intent with respect to the deference to be accorded to a tribunal’s decision. In determining the appropriate standard of review, the pragmatic and functional approach requires a consideration of four contextual factors. (Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at para. 26)
[10] The first factor concerns the presence or absence of a privative clause or statutory right of appeal. There is no statutory right of appeal of decisions of interest arbitration boards. As well, there is no privative clause applicable to interest arbitration decisions under the Act. That said, the Act contains a privative clause protecting decisions of the Public Service Labour Relations Board from review by the courts except in accordance with subsections 18.1(4)(a), (b) or (e) of the Federal Courts Act, R.S.C. 1985, c. F-7. Additionally, strong privative protection is accorded to the decisions of grievance arbitrators under section 233 of the Act.
[11] In Dr. Q, above at paragraph 27, Chief Justice McLachlin observed that where a statute is silent on the question of review, the silence is neutral and does not imply a higher standard of scrutiny. However, in the present case, where there are privative clauses for other labour relations decisions under the same legislation, the absence of a privative clause in relation to an interest arbitration decision would point to a lesser degree of deference.
[12] The second factor relates to the expertise of the tribunal relative to that of the reviewing court on the issue in question. This factor has three aspects: the expertise of the tribunal, the expertise of the court relative to that of the tribunal; and the nature of the question before the tribunal relative to this expertise: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at para. 33.
[13] Although the legislation provides that members of the Public Service Labour Relations Board must “have knowledge of or experience in labour relations” (paragraph 18(1)(e)of the Act), there is no similar provision regarding individuals serving as members of interest arbitration panels. Neither party tendered any evidence concerning the expertise of the three individuals who served on the Board in the present case nor was any evidence tendered regarding the level of expertise generally found among those individuals nominated to serve on interest arbitration boards. However, given that the parties themselves nominate the members of the board who in turn select the chairperson, it is reasonable to assume that the parties will nominate individuals with expertise in labour relations and that the nominees, in turn, will select a knowledgeable chairperson.
[14] Further support for this assumption is found in section 141 of the Act that prohibits an individual from acting as a member of an arbitration board if the individual in the six months prior to the date of appointment acted as counsel or agent for either the parties having an interest in the matter referred for arbitration.
[15] Finally, the nature of the work of interest arbitration boards, namely, the resolution of outstanding matters on which parties are unable to reach agreement during the course of collective bargaining regarding the terms and conditions of employment is a highly technical and specialized area of work requiring expertise in labour relations. The Board is required to take into account statutory factors, as well as other relevant factors as they relate to findings of fact in the labour relations context.
[16] In contrast, the Court does not have this highly technical and specialized expertise in labour relations.
[17] Lastly, consideration must also be given to the nature of the question before the tribunal relative to this expertise. There are two aspects to the question before the Board in the present case: an interpretation of the factors enumerated in section 148; and, factual determinations in the application of the section. Although issues of statutory interpretation do not generally call for curial deference, in the present case, the Board was interpreting its enabling legislation and, in particular, a provision in the legislation in relation to its core function that is not a jurisdiction limiting provision. These considerations together with the fact-intensive nature of the application of the provision to the bargaining stances taken by the parties militates in favour of greater deference.
[18] The next factor concerns the purposes of the legislation and the relevant provision in particular. The purpose of the Act includes the facilitation of effective labour-management relations through the creation of structures for collective bargaining and the resolution of interest disputes with regard to determining terms and conditions of employment. The legislative scheme surrounding the provision at issue is directed at the swift resolution of collective bargaining impasses resulting in final and binding collective agreements. Although the specific provision is directed at the resolution of a two party dispute, a review of the factors enumerated in section 148 reveals a broader policy component. This factor also weighs in favour of greater deference being accorded to the kinds of decisions at issue in this proceeding.
[19] Finally, the nature of the question, that is, whether it is a question of law, mixed fact and law or fact alone must be identified. As noted earlier, there are two aspects to the issue before the Board; first, the interpretation of a provision in the Act, a question of law; and, second, the application of statutory factors to the facts adduced by the parties, a question of mixed fact and law. Although a question of statutory interpretation will generally be reviewed on a standard of correctness, having regard to the considerations identified earlier under the discussion of relative expertise and the nature of the question leads to a more deferential standard. As well, the fact-intensive nature of the application of the statutory factors to the facts, a question of mixed fact and law, also points to a more deferential standard.
[20] Finally, a balancing of these factors leads me to conclude that deference is owed to the Board in relation to this decision. Accordingly, I will apply the standard of reasonableness simpliciter.
ANALYSIS
[21] The Applicant submits that the Board erred in its interpretation of subsection 148(b) as being an adjunct to subsection 148(a) and related to the issue of recruitment and retention. While the Applicant agrees that subsection 148(a) is about recruitment and retention, the Applicant argues that subsection 148(b) is a general requirement regarding fairness and equity to ensure that the public sector is not looked upon as “cheap labour” in relation to the private sector. The Applicant takes the position that subsections 148(b), (c) and (d) are fairness provisions because these provisions focus on comparisons between private and public sectors, different classification levels within an occupation, occupations in the public service, the qualifications required, the responsibility assumed and the nature of the services rendered. The Applicant notes that fairness is essentially all about comparisons.
[22] The Applicant contends that subsections 148(a) and (b) are mutually exclusive and if Parliament, had intended to make recruitment and retention part of the consideration under subsection 148(b), it could have done so. While all of the subsections are related to each other, each subsection is a separate consideration. Finally, the Applicant maintains that as a result of the Board’s misinterpretation of subsection 148(b), the Board either misapplied the provision or ignored relevant evidence.
[23] Before turning to the Board’s interpretation of section 148, it is helpful to review some of the Board’s key findings. The Board accepted the Respondent’s assertion that it had not experienced any recruitment or retention difficulties and expected that the same situation would continue. The Board rejected the Applicant’s challenges to the Respondent’s assertion regarding recruitment and retention characterizing them as speculative at this point in time. The Board concluded that in the absence of demonstrated operational necessity, subsection 148(b) did not contemplate the making of “any preemptive” wage adjustments or “unprecedented” annual leave entitlement. It was within this context that the Board had to consider the factors listed in section 148.
[24] In my view, it was reasonably open to the Board to interpret subsections 148(a) and (b) as encompassing the concept of operational necessity with the broader inquiry under subsection 148(a) being directed at recruitment and retention and the more narrow inquiry under subsection 148(b) at market conditions in relation to terms and conditions of employment.
[25] Although the Board did not frame it precisely in this fashion, it is implicit in the reasons that once having concluded that the Applicant had failed to establish operational necessity, there was no need to engage in the analysis contemplated under subsection 148(b). Put another way, subsection 148(a) is directed at the goal of ensuring that competent people are attracted to and will remain in the public service. Where there are difficulties in the area of recruitment and retention, subsection 148(b) requires a board to consider the necessity of offering terms and conditions of employment in the public sector that are comparable to those of employees in similar occupations to overcome the difficulties and to address the goal articulated in subsection 148(a). For this reason, I reject the Applicant’s argument that the two subsections at issue are mutually exclusive.
[26] The Applicant’s argument that subsection 148(b) is about fairness and equity and ensuring that the public service is not seen as a “cheap labour” market appears to be predicated on the reference to the terms and conditions of employment of comparable employees in similar occupations. In effect, the Applicant is arguing that any provision that requires a comparison to be made is a fairness provision. That is, since this section speaks about offering terms and conditions of employment that are “comparable” and fairness is all about comparison it follows that this must be a fairness provision. While I reject this interpretation for the reasons stated above, I also note that this provision speaks about the necessity of offering terms and conditions of employment that are comparable to both the public and private sectors. As well, the use of the word “offering” leads me to conclude that the provision is directed at meeting the necessity articulated in subsection 148(a).
[27] For these reasons, I conclude that the Board did not commit a reviewable error in its interpretation and application of the factors at issue. Further, I also reject the Applicant’s argument that the Board ignored relevant evidence. It is evident in the Board’s reasons that the Board considered the evidence concerning the wages and leave entitlement tendered by the Applicant but rejected it because no difficulties in recruitment and retention had been established at this time.
[28] Accordingly, the application for judicial review is dismissed with costs to the Respondent.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed with costs to the Respondent.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1777-05
STYLE OF CAUSE: National Automobile, Aerospace, Transportation and
General Workers’ Union of Canada (“CAW-Canada”) and its Local 5454, the Canadian Air Traffic Controllers Association
v. Her Majesty the Queen in Right of Canada (as represented by Treasury Board Secretariat)
PLACE OF HEARING: Ottawa, Ontario
APPEARANCES:
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Mr. Barry Wadsworth |
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Mr. Michel LeFrançois |
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SOLICITORS OF RECORD:
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CAW-Legal Department Toronto, Ontario |
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Department of Justice Ottawa, Ontario
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