Public Service Alliance of Canada v. Canada (Attorney General)

Public Service Alliance of Canada v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2013-08-30
Neutral citation
2013 FC 918
File numbers
T-1050-13
Decision Content
Date: 20130830
Docket: T-1050-13
Citation: 2013 FC 918
Ottawa, Ontario, August 30, 2013
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
PUBLIC SERVICE ALLIANCE OF CANADA
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant, the Public Service Alliance of Canada [the Alliance], is the certified bargaining agent for the Canada Border Services Agency [CBSA] employees in the Border Services Group (which the parties call the “FB”). The FB group is comprised of Border Services Officers [BSOs] who work mainly at points of entry to Canada and at CBSA postal operations. For labour relations purposes, the employer of the BSOs is the Treasury Board of Canada (Public Service Labour Relations Act, SC 2003, c 22, s 2 [the PSLRA]; Financial Administration Act, RSC 1985, c F-11, Schedule IV). The labour relations of the Treasury Board [the Employer] and the Alliance in respect of the FB bargaining unit are governed by the PSLRA.[1] The Alliance and the Employer are in the process of bargaining for the renewal of the second collective agreement applicable to the FB bargaining unit.
[2] On June 7, 2013, the Minister of Canadian Heritage, in his capacity as the designated Minister under the PSLRA, [the Minister], issued a direction to the Chairperson of the Public Service Labour Relations Board [the PSLRB] to conduct a vote among the members of the FB bargaining unit on the Employer’s last offer. The direction was issued under section 183 of the PSLRA, which provides the Minister authority to require that a vote be conducted on an employer’s most recent offer where the Minister is of the opinion that it is in the public interest that such a vote be held. Although section 183 (or a somewhat similar provision) has been contained in the PSLRA for some time, the June 7th decision was the first time the Minister exercised the authority he possesses under that section to order a vote on an employer offer.
[3] In the present application for judicial review, the Alliance seeks to set aside the Minister’s June 7th decision for three reasons. First, it argues that the Minister’s decision is unreasonable as there was no possible basis upon which the Minister could have reasonably concluded that a vote was in the public interest given the status of bargaining between the parties. It asserts in this regard that the decision to order the vote is a “frontal attack” on collective bargaining rights in the federal public service and that the Minister’s decision must accordingly be set aside. Second, the Alliance argues that its procedural fairness rights were violated because it received no notice of the Employer’s request that the Minister exercise his authority under section 183 of the PSLRA and was not afforded an opportunity to make submissions in respect of the request, even though the Employer made submissions to the Minister on its position that an ordered vote was needed. Finally, the Alliance argues that there is a reasonable apprehension that the Minister was biased as he adopted large portions of the draft letter to the Chairperson of the PSLRB that the Employer tabled with the Minister and because, in accepting the Employer’s position without consulting the Alliance, the Minister improperly interfered in the collective bargaining process. The Alliance also seeks to strike the affidavit of Rachel Auclair, the Director of the Commercial Border Division of the CBSA, filed by the respondent, arguing it improperly contains materials that were not before the Minister when he made the June 7th decision and is therefore inadmissible on this application. Finally, the Alliance seeks costs on an elevated scale, arguing that the behaviour of the Minister is so far beyond what is acceptable that an elevated costs award ought to be made.
[4] The respondent, on the other hand, argues that the Alliance lacks standing to bring this application, asserting that it has no interest in whether a vote is conducted under section 183 of the PSLRA as that section concerns employee rights and not the rights of their bargaining agent. The respondent also argues that the decision of the Minister is not reviewable under the Federal Courts Act, RSC 1985, c F-7 [FCA] because it does not raise a justiciable issue. In terms of the merits of the application, the respondent asserts that, given the Alliance’s lack of standing and the type of decision in issue, the Alliance was not entitled to notice of the request for a vote and that, in any event, it received adequate notice but failed to make submissions and to follow up on a letter that it sent to the Minister’s parliamentary office. The respondent submits that the Alliance therefore cannot claim that its procedural fairness rights were violated. In the alternative, the respondent argues that if there was a breach of procedural fairness, then the Minister’s decision should not be set aside as the same result would have obtained even if the Alliance had been afforded the right to make representations. In this regard, the respondent argues that there was ample basis for the Minister to reasonably conclude that the conduct of a vote on the Employer’s final offer was in the public interest, given the length of time bargaining has taken, the position of the Alliance in bargaining (including seeking amendments to employees’ pension rights which are governed by statute and cannot be the subject of a collective agreement), the Alliance’s position on the Employer’s final offer, the importance of the role of the BSOs and the impact of a potential work disruption over the summer months. The respondent also asserts that there is no basis for concluding the Minister was biased and that the affidavit of Ms. Auclair (with the possible exception of Exhibit “B” to that affidavit) is properly before the Court. The respondent finally argues that there is no basis for an elevated costs award in this case and that the principles generally applicable should be applied to award costs to the successful party with reference to Column III of Tariff “B” of the Federal Courts Rules, SOR/98-106.
[5] For the reasons set out below, I have determined that the first three paragraphs of and Exhibit “A” to the affidavit of Ms. Auclair are properly before the Court, that the Alliance does have standing to bring this application, that the issues it raises are justiciable and that the Alliance was entitled to but denied procedural fairness. I have also concluded that the denial of procedural fairness resulted in the Minister being deprived of important facts and of the point of view of the Alliance, which might have impacted his decision. I have therefore concluded that the Minister’s June 7th decision must be set aside and, consequently, that the process now being undertaken to conduct the vote must be stopped as the decision ordering it is a nullity.
[6] However, the facts are not such that there was no reasonable basis upon which the Minister could have concluded that a vote was in the public interest. Nor has the Alliance established a reasonable apprehension of bias on the part of the Minister. In addition, the passage of time has altered the collective bargaining landscape between the Employer and the Alliance because the public interest commission, established under section 167 of the PSLRA to conduct non-binding conciliation [the PIC], issued its report shortly before the Minister made the decision but the PIC’s report was not before the Minister. In light of this, I have concluded that it is not appropriate to remit the matter back to the Minister for re-determination as the issuance of the PIC report is an important changed circumstance and, in any event, section 183 of the PSLRA affords the basis for a new application for a vote to be made if appropriate (or for the Minister to order a new vote on his own motion if he determines that a second vote is necessary in the public interest). Finally, I have concluded that the circumstances of this case do not justify an elevated costs award.
[7] My reasons for these conclusions involve consideration of the following issues:
1. Should the affidavit of Ms. Auclair be struck?
2. Does the Alliance possess standing to bring this application and is it justiciable?
3. Was the Alliance denied procedural fairness?
4. If so, should I decline to order a remedy as the respondent requests?
5. Do the other grounds raised by the Alliance have merit?
6. What remedy is appropriate? And
7. What costs award is appropriate?
[8] Each of these issues is examined below. To put the issues in context, it is useful to review the backdrop to this application and the history of collective bargaining between the Employer and the Alliance for the FB unit.
Background
[9] In 2009, the parties signed their first collective agreement for the FB bargaining unit, which ran until June 20, 2011. (Its terms and conditions continue to bind the parties and the employees in the FB bargaining unit due to the statutory freeze of terms and conditions of employment provided for in section 107 of the PSLRA).
[10] In respect of the second round of bargaining for the FB unit, the Alliance elected to follow the conciliation process. Under the PSLRA, a trade union may elect one of two different processes for resolution of bargaining impasses, namely, either arbitration (where unresolved bargaining issues are settled via binding arbitration conducted by a board that is comprised of member(s) of the PSLRB) or conciliation (where several different dispute resolution methods are available, including the use of strike or lock-out) (see PSLRA subsection 103(1)).
[11] A number of conditions must be fulfilled before a trade union may legally authorise or employees may legally engage in a strike under the PSLRA. These include the requirement that the parties must either have settled, or failing their agreement, the PSLRB must have determined the terms of the Essential Services Agreement [ESA] applicable to the bargaining unit (see PSLRA paragraphs 194(1)(f) - 194(1)(j)). Essential services are services necessary for the safety or security of the public or a segment of the public, and an ESA sets out the types of positions in the bargaining unit necessary for the employer to provide essential services, the number of positions necessary for that purpose and the specific positions necessary for that purpose (see PSLRA section 4). The Alliance and the Employer have not yet settled the terms of the ESA for the FB unit but have made substantial progress in their negotiations for the ESA.
[12] In February 2011, the Alliance served the Employer with notice to bargain for the renewal agreement for the FB unit, and in March of 2011, the parties commenced collective bargaining. Between April 2011 and April 2012, the parties bargained directly for approximately 38 days, but were unable to settle the terms of their renewal agreement. Amongst other improvements, as noted, the Alliance was seeking amendments to the pension entitlements of the BSOs, which are governed by the Public Service Superannuation Act, RSC 1985, c P-36. Under section 113 of the PSLRA, the requested improvements to the pension are outside the permissible scope of a collective agreement.
[13] On April 19, 2011, the Alliance requested conciliation, pursuant to section 161 of the PSLRA. On June 29, 2012, the Chairperson of the PSLRB requested the Minister to establish a PIC under Division 10 of the PSLRA. The PIC is the conciliation mechanism under the PSLRA. The parties elected to have a tripartite PIC established, and on July 25, 2012 the Minister approved the suggestion of the parties’ nominees for the Chairperson of the PIC.
[14] Under sections 162-167 of the PSLRA, the Minister does not possess discretion as to whether to appoint a PIC but does possess limited discretion over who is to be appointed as the Chairperson of a PIC. The PSLRA instead provides the Chairperson of the PSLRB with responsibility for determining whether or not the appointment of a PIC is appropriate. Pursuant to sections 162 and 163 of the PSLRA, the Chairperson of the PSLRB may decline to accede to a party’s request for the appointment of a PIC or may decide at his or her own initiative that a PIC should be established. The Minister has no similar discretion under the legislation.
[15] In terms of the functioning of the PIC, the PSLRA provides that, unless the parties or the Chairperson of the PSLRB agree to an extension, the PIC must submit its report to the PSLRB Chairperson within 30 days of appointment. In this case, the Employer and the Alliance agreed to an extension and completed their submissions to the PIC in December 2012. Thereafter, the parties continued to bargain while the PIC deliberated, and on April 29 and May 6, 2013, the Employer submitted two comprehensive offers of settlement to the Alliance for conclusion of the collective agreement for the FB unit. (The second offer was an improvement over the April 29th offer.)
[16] On May 6, 2013, the Alliance advised its members, via a website posting, that it would be rejecting the employer’s final offer tabled that day and would not be putting that offer forward for a vote amongst its members in the bargaining unit.
[17] On May 21, 2013, the Honourable Tony Clement, President of the Treasury Board, wrote to the Minister, requesting that the Minister direct a vote on the Employer’s final offer pursuant to section 183 of the PSLRA. In his letter requesting the vote, the President made a number of assertions. These included:
The fact that the PIC report had not yet been received even though the request for the establishment of the PIC had been made over a year earlier. As counsel for the Alliance correctly notes, the President of the Treasury Board neglected however to mention that the parties had extended the time for the PIC to report; It was anticipated that the PIC report would not facilitate a settlement; The President of the Treasury Board was concerned that the BSOs would undertake job action; The Alliance was seeking improvements to the BSO’s terms and conditions of employment (including pension improvements) that, with the exception of the wage adjustment, were estimated to cost $116 million per year, which the President qualified as being “outside the mandate, expensive, and precedent setting, and in the case of pension reform, not permissible under the [PSLRA]”; The Employer had tabled a settlement offer that the President of the Treasury Board believed was fair, which included wage increases and other improvements; and The President of the Treasury Board believed that “the consequences of not proceeding with a final offer vote will result in continued lengthy negotiations and a work stoppage, and potentially a protracted strike”.
[18] The President of the Treasury Board enclosed with his letter to the Minister a copy of the Employer’s final offer to the Alliance as well as a draft of the letter he proposed be sent by the Minister to the Chairperson of the PSLRB to direct the PSLRB to conduct the vote.
[19] The Alliance was not copied on the May 21st letter from the President of the Treasury Board to the Minister and, indeed, was not advised that the Employer would be making a request to the Minister that he direct a vote under section 183 of the PSLRA. In this regard, the evidence before the Court establishes that the Employer merely told the Alliance that it was considering making such a request.
[20] On May 7, 2013, Robyn Benson, the President of the Alliance, wrote to the Minister, requesting that the Alliance be allowed to make representations as to why a vote should not be ordered under section 183 of the PSLRA. In her letter, the President of the Alliance stated that the Employer had “implied” that it would seek a ministerial-ordered vote under section 183 of the PSLRA and that the Alliance was “left with the impression” that this would occur.
[21] The May 7th letter from the President of the Alliance was sent to the Minister’s parliamentary office. The materials before the Court establish that the letter was not forwarded to the Minister’s departmental office until well after the decision to order the vote had been made and that the letter was not before the Minister when he made the decision. However, no explanation has been provided as to why the letter was not placed before the Minister nor as to why it took several weeks for the Minister’s parliamentary office to forward the letter to the department (where it presumably would have been processed quickly under the service standards applicable in the department).
[22] In the end, the Alliance was not invited to make representations as to whether a vote should be directed under section 183 of the PSLRA even though it had written to the Minister requesting such an opportunity, and even though the Employer had made its own submissions setting out its point of view on the vote request.
[23] On June 5, 2013, just two days before the Minister made the decision to direct the vote on the Employer’s final offer, the PIC issued its report. With the exception of one issue, the report was unanimous – with both the employer and union nominees concurring with its contents on all other points. In the report, the PIC recommended rejection of many – but not all – of the Alliance’s bargaining proposals, including the request for pension improvements (that it noted could not be incorporated into a collective agreement by virtue of section 113 of the PSLRA). The PIC report, however, recommended settlement on terms somewhat more favourable to the BSOs than those contained in the Employer’s final offer.
[24] Under the PSLRA, the PIC report is not binding on either party unless they both agree to be bound by some or all of its contents. The Alliance and the Employer have not made any such agreement and the PIC report, therefore, constitutes merely a recommended basis for settlement, albeit one on which the Employer and the Alliance nominees – as well as the neutral PIC chairperson – largely agree.
[25] The PIC report was not before the Minister when he made the decision to direct the vote and his decision makes no reference to it, raising the question of whether the Minister was aware that the PIC report had been issued when he directed the vote. What he did have before him were the submissions from the President of the Treasury Board as well as a briefing note dated June 4, 2013 from his Deputy Minister, recommending that the vote be ordered. As the note was authored before the PIC report was issued, it makes no mention of the report.
[26] In deciding to order the vote, the Minister issued both a letter to the Chairperson of the PSLRB as well as the Direction, itself, which both set out brief reasons why the vote was being directed. These reasons indicate that the Minister believed that a vote should be conducted on the Employer’s final offer because he believed it was in the public interest that the BSOs be afforded the opportunity to vote “given the current fiscal environment, the potential public safety and national security risks, and significant financial repercussions the country would face if a strike were held”.
[27] Following the issuance of the Minister’s direction to conduct the vote, the PSLRB began and is still making arrangements for the vote. Given the complexities inherent in conducting a national vote, it appears that the voting will not be concluded until September 5, 2013, at the earliest.
[28] With this background in mind, it is now possible to turn to the issues in this application for judicial review.
Should the affidavit of Ms. Auclair be struck?
[29] Turning, first, to the request to strike the affidavit of Ms. Auclair, the Alliance argues that as the affidavit was not before the Minister when he decided to order the vote, it is not properly before me because evidence on a judicial review application should be limited to the materials that were before the administrative decision-maker.
[30] The respondent, while conceding that this is generally the case, notes that there are exceptions to this general rule, one of which allows a limited amount of general background information to be placed before the court to amplify the record by setting out general facts that may be of assistance to the court. The respondent points to Chopra v Canada (Treasury Board), 168 FTR 273 and Armstrong v Canada (Attorney General), 2005 FC 1013, 141 ACWS (3d) as examples of cases where evidence, much like the contents of Ms. Auclair’s affidavit (with the possible exception of Exhibit “B” to the affidavit), was found to be properly before this Court.
[31] The general rule, which has been qualified as “trite law”, is that an applicant on judicial review can only rely on evidence that was before the decision-maker (see e.g. Association of Universities and Colleges of Canada and the University of Manitoba v the Canadian Copyright Licensing Agency, 2012 FCA 22 at para 19, 428 NR 297; Ochapowace Indian Band v Canada (Attorney General), 2007 FC 920 at para 9, 316 FTR 19). As the respondent correctly notes, however, there are limited exceptions to this rule, one of which allows for the filing of additional general background information of assistance to the court.
[32] Here, the first two paragraphs in Ms. Auclair’s affidavit contain such information as they merely identify the affiant and summarise the role and mandate of CBSA. In my view, the third paragraph of the affidavit is likewise permissible background information as it sets out the general propositions that border management is an international concern and that Canada and the United States signed an action plan in 2011, signalling their commitment to further harmonise trade, facilitate travel and strengthen security efforts between the two countries. In this paragraph of her affidavit, Ms. Auclair also identifies and attaches Exhibit “A”, a copy of CBSA’s Report on Plans and Priorities for 2013-2014, which the parties agree is a public document that the Alliance had access to for some time. The Report is likewise general in nature, provides useful background and context and is not prejudicial to the Alliance. In my view, this Exhibit to Ms. Auclair’s affidavit and paragraph 3 of her affidavit are accordingly admissible.
[33] Paragraph 4 of and Exhibit “B” to Ms. Auclair’s affidavit, on the other hand, go much further and summarise and set out an analysis that Ms. Auclair, herself, conducted as to the effect of delays at the Canada-US border on supply chain management and industry productivity. This information is not general in nature, was produced by Ms. Auclair, was not before the Minister when he made the decision to order the vote and was not available to the Alliance until it was filed in connection with this judicial review application. I believe that it ought not be part of the record on this application as it goes well beyond the scope of permissible background information that might be of assistance to the Court. Paragraph 4 of and Exhibit “B” to Ms. Auclair’s affidavit will therefore be struck, and I have considered neither in making this decision.
Does the Alliance possess standing to bring this application and is it justiciable?
[34] The second preliminary issue raised by the parties involves the respondent’s challenge to the ability of the Alliance to bring this application. The respondent advances two arguments in support of this objection. First, it argues that only the Attorney General and persons directly affected by “a matter in respect of which relief is sought” may bring an application for judicial review by virtue of subsection 18.1(1) of the FCA. The respondent maintains that the Alliance is not directly affected by the decision to order a vote and accordingly cannot bring this application. Second, the respondent asserts in its written Memorandum (although the issue was not pursued in oral argument) that the decision to order a vote under section 183 of the PSLRA is not justiciable as the decision is “not suitable for a judicial solution” (at para 112 of the respondent’s Memorandum of Fact and Law).
(a) Standing
[35] In support of the first argument that the Alliance is not directly affected by the Minister’s decision, the respondent asserts that the decision impacts only the BSOs and not the Alliance and relies on the decision of the Federal Court of Appeal in Air Canada v Toronto Port Authority, 2011 FCA 347, 426 NR 131, [Air Canada], which it argues is analogous to the present situation. There, the Federal Court of Appeal held that Air Canada’s challenge to two informational bulletins issued by the Toronto Port Authority, which merely detailed the process the Authority would follow to award take-off and landing slots, was not a matter that could be pursued by way of a judicial review application under the FCA. In upholding the decision to summarily dismiss the judicial review application, the Court of Appeal relied in part on the fact that Air Canada’s applications did not attack any matter “…that affects Air Canada’s legal rights, imposes legal obligations or cause prejudicial effects” (at para 42). The respondent argues that the same may be said of the Minister’s decision to order a vote under section 183 of the PSLRA in this case, asserting that the decision has no effect on the Alliance and impacts only employees.
[36] With respect, I disagree and, indeed, believe it would be difficult to find a decision that might more deeply affect a trade union’s interests than the decision to order a vote among bargaining unit members under a provision like section 183 of the PSLRA.
[37] Under the PSLRA (like all labour legislation in Canada), once a union acquires collective bargaining rights, it assumes both the right and the responsibility to negotiate the collective agreement for the bargaining unit. And the law has long held (going back over half a century to the decision of the Supreme Court of Canada in Syndicat catholique des employés de magasins v Paquet Ltée, [1959] SCR 206 at 212-13), that a collective agreement displaces all individual contracts of employment for members of the bargaining unit (see also McGavin Toastmaster Ltd v Ainscough, [1976] 1 SCR 718 at 724-26, 54 DLR (3d) 1). Thus, the only parties to the collective agreement are the employer and the trade union, and the collective agreement is the only contract that governs the terms and conditions of employment of members of the bargaining unit.
[38] A vote under section 183 is one of the mechanisms by which a collective agreement can be finalized under the PSLRA. If the employees accept the employer’s last offer, that offer (along with items previously agreed to by the employer and the union) become the collective agreement. As the collective agreement will bind the Alliance, it must of necessity have a legally-recognised interest in the process to finalize its terms just as any party to any contract is necessarily interested in the formulation of the contract and has standing to raise issues that relate to contractual formulation.
[39] More fundamentally, though, the respondent’s argument misconceives the collective bargaining process and the nature of the interests at play in a case such as this. Under the PSLRA (and all labour legislation in Canada), an employer cannot negotiate directly with employees and is instead bound to bargain with their bargaining agent. And, provided it engages in good faith bargaining, a trade union’s bargaining committee possess the right to accept or reject employer proposals based on its assessment of the best interests of the members of the bargaining unit. That right, however, must be exercised prudently, and the legislation in various jurisdictions provides different mechanisms to address miscalculations made by union bargaining committees. In this regard, a strike vote is typically required to provide a union with a strike mandate,[2] which an imprudent bargaining committee may not obtain; a union may be decertified if employees become so unhappy they wish to rid themselves of their bargaining agent,[3] and, in many jurisdictions, the employer may seek to have its final offer put to a vote among employees,[4] as the Employer has done here. Where a vote is ordered and the employees vote in favour of accepting the employer offer that the bargaining committee rejected, the credibility of the trade union will be undercut. Thus, the Alliance is fundamentally interested in whether a vote is conducted on the Employer’s final offer as a vote to accept the offer would likely undermine its bargaining strength and position with the BSOs.
[40] This case, therefore, is fundamentally different from the Air Canada case relied on by the respondent. There, unlike here, the impugned bulletins had no impact on Air Canada as they merely detailed a process that the Toronto Port Authority intended to follow. Here, on the other hand, for the reasons noted, the decision to order the vote does impact the Alliance.
[41] The respondent has cited no authority from a labour relations context that would support the notion that a trade union lacks standing to challenge a decision to order a vote on an offer made in bargaining. However, one of the cases the respondent relies on for another proposition strongly supports the conclusion that the Alliance does possess standing to bring this application. In this regard, in Corner v Ontario (Minister of Labour), 2011 ONSC 5979, 287 OAC 176, in confirming that individual bargaining unit members do not normally possess standing to participate in proceedings concerning first contract arbitration and the conduct of ministerial-ordered votes, the Ontario Divisional Court noted that as a matter of course the interested parties to such proceedings are the employer and the union (see paras 49 and 52). (See also to similar effect Jamal v Crown Employees Grievance Settlement Board, 221 OAC 67 at para 5; Alford v Yukon (Public Service Commission), 2006 YKCA 9 at para 14, 273 DLR (4th) 140).
[42] In addition, under the PSLRA, the interested parties in proceedings before the PSLRB and a PIC concerning bargaining rights and collective agreements are invariably the employer and the trade union that has or is seeking bargaining rights. Theses provisions serve to confirm that the Alliance does have an interest in the Minister’s decision to order a vote among the members of the FB bargaining unit in the present case.
[43] Thus, the respondent’s first objection to the Alliance’s standing to bring this application must be dismissed.
(b) Justiciability
[44] Likewise, the second basis for the respondent’s objection, namely that the decision is not justiciable, is without merit. In support of this contention, the respondent relies on Cummins v Canada (Minister of Fisheries & Oceans), [1996] 3 FC 871, 41 Admin LR (2d) 151 [Cummins], Fogo (Town) v Newfoundland, 190 Nfld & PEIR 228, 23 Admin LR (3d) 138 [Fogo], and Friends of the Earth - Les Ami(e)s de la Terre v Canada (Governor in Council), 2008 FC 1183, 299 DLR (4th) 583 [Friends of the Earth], where issues were found to not be justiciable. These cases, however, involved complex policy choices made or to be made by the executive branch of government, like the decision to proceed to issue salmon-fishing licences, that the Court found to not be restrainable by way of injunction in Cummins, or the choice as to where to build a hospital, that a municipality was unable to challenge in Fogo, or the decision to withdraw from the Kyoto Protocol, that was considered in Friends of the Earth. Moreover, in each of these cases, the applicant sought to compel or forestall a particular decision’s being made.
[45] The concept of justiciability is linked to the notion of appropriate judicial restraint (Reference re Canada Assistance Plan (Canada), [1991] 2 SCR 525 at para 33, 83 DLR (4th) 297). As Chief Justice Dickson wrote in Canada (Auditor General) v Canada (Minister of Energy, Mines & Resources), [1989] 2 SCR 49, 61 DLR (4th) 604 [Auditor General], the question of justiciability is “a normative inquiry into the appropriateness as a matter of constitutional judicial policy of the courts deciding a given issue or, instead, deferring to other decision-making institutions of the policy” (at para 50).
[46] In his recent decision in Kelly v Canada (Attorney General), 2013 ONSC 1220, 226 ACWS (3d) 654 [Kelly], Justice Perell provides a useful survey of the case law on justiciability and posits four general categories where matter may not be justiciable (at para 148):
(1) the subject or topic of the dispute may be beyond the institutional competence of the court;
(2) the subject or topic of the dispute may lack sufficient legal content;
(3) the dispute may be political and not juridical, which is perhaps a variant of the insufficient legal content category; and
(4) the dispute may be about investigating a problem and negotiating or recommending a solution as opposed to solving the problem by the application of law to pleaded and determined facts.
[47] In Kelly, Treaty 3 between the Crown and the Ojibway First Nation obligated the Crown to “maintain schools” within treaty lands. The First Nation alleged that, over the past 200 years, the Crown had failed to adequately fund schools and sought a declaration that the Crown had breached Treaty 3. Justice Perell found that the true issues were about education policies and funding, issues that “should be resolved outside the courtroom” (at para 155) as the point of the proceedings was really to push the government to the negotiation table.
[48] The decision at issue in this case, on the other hand, is fundamentally different from that in Kelly or the three cases relied on by the respondent. First, the Alliance is not seeking to compel or forestall a particular decision but, rather, has made a typical judicial review application seeking review of a decision made under a statutory grant of authority to the Minister. Judicial review of discretionary decisions made by ministers pursuant to statutory powers of decision is commonplace, as a review of the cases of this Court readily attests. (To name but one example, discretionary decisions of the Ministers of Citizenship and Immigration and Public Safety and Emergency Preparedness, or their delegates, under the Immigration and Refugee Protection Act, SC 2001, c 27 are clearly reviewable. See in this regard Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 [2002] 1 SCR 3; Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817; and Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36.)
[49] Second and more importantly, the nature of the Minister’s decision that the Alliance seeks to review in this case is fundamentally different from those in Kelly, Cummins, Fogo, Friends of the Earth or other cases where matters have been found to be non-justiciable (like in Attorney General of Canada v Inuit Tapirisat, [1980] 2 SCR 735 [Inuit Tapirisat], where the Supreme Court found that a decision to fix rates for a public utility did not attract the duty of fairness; or in Auditor General, where the Supreme Court of Canada held that legislation provided for an adequate alternative remedy by another branch of government; or in Black v Canada (Prime Minister) (2001), 199 DLR (4th) 228, where the Ontario Court of Appeal held that the Court did not have jurisdiction to review advice given by the Prime Minister to the Queen regarding the conferral of honours).
[50] What is at issue here is a decision made by a minister of the federal government to order a vote to settle the terms of a collective agreement to which the government, itself (through Treasury Board), is a party. The issues at play involve an alleged unreasonable exercise of ministerial discretion, violation of procedural fairness and bias. These issues are not beyond the institutional competence of a court, are legal in nature and are not purely political. They are accordingly not so policy-laden or complex that they should be immune from review, and the respondent has cited no authority from a labour relations context to suggest that a decision like that of the Minister in this case may not be the subject of judicial review. Indeed, were this the case, one party to the collective agreement – the government – could shield its actions from being questioned, which would run counter to the entire scheme for collective bargaining in the public service established by the PSLRA. The PSLRA seeks to balance the rights of the employer and unions who represent public servants and affords both standing in proceedings before the PSLRB and a PIC, when collective bargaining matters are the subject of inquiry. It stands to reason, in my view, that similar status to raise issues should be recognised in judicial review proceedings involving a vote under section 183 of the PSLRA.
[51] Thus, the issues raised in this application for judicial review are justiciable and the preliminary objections of the respondent to the ability of the Alliance to bring this application for judicial review are therefore dismissed.
Was the Alliance denied procedural fairness?
[52] Turning, next, to the substantive issues that arise in this matter, the one which logically first arises is whether the Alliance was entitled to procedural fairness, and, if so, whether it was accorded procedural fairness in the process the Minister adopted in making the decision to order a vote under section 183 of the PSLRA. No deference is to be afforded to the Minister on this issue as the determination of whether there has been a violation of procedural fairness is a matter for the reviewing court to determine (Khosa v Canada (Minister of Citizenship & Immigration), 2009 SCC 12 at para 43, [2009] 1 SCR 339; Satheesan v Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 346 at para 35, 227 ACWS (3d) 106). This issue normally requires consideration before the other issues raised by the Alliance (even though the Alliance argued it in the alternative) as a decision made in violation of a party’s procedural fairness rights typically results in the decision’s being set aside. Where this occurs, there is no decision requiring review and thus no requirement to consider whether the decision was reasonable.
[53] In terms of whether the Minister was required to afford the Alliance procedural fairness in the decision-making process, the determination that the issues raised by this application are justiciable leads to the conclusion that the parties affected by the decision were entitled to some degree of procedural fairness as the issues in essence are one and the same. (For example, where a decision is immune from challenge and a claim seeking review of it is not justiciable – as in Inuit Tapirisat – there is no duty of procedural fairness owed to the applicant. Conversely, where the issue is justiciable – as in the case of the discretionary power of the Minister of Justice to order extradition of an applicant, as in Idziak v Canada, [1992] 3 SCR 631 – procedural fairness rights do arise.)
[54] In terms of the content of the nature of the procedural fairness duties owed to the Alliance, as the Supreme Court of Canada noted in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at paras 21-28, 174 DLR (4th) 193 [Baker], the content of the duty of procedural fairness depends on the context, which requires consideration of factors such as:
the nature of the decision in question and the process followed in making it, and, in particular, the degree to which the decision-making process resembles that followed by a court (in which event