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Labour (Fed) - Federal Public Sector Labour Relations Act (FPSLRA) (2). Canada (Attorney General) v. Public Service Alliance of Canada
In Canada (Attorney General) v. Public Service Alliance of Canada (Fed CA, 2024) the Federal Court of Appeal considered in JR whether an employer's duty to bargain in good faith applied "only to the negotiation of collective agreements", and not to ancillary employment benefits:[3] The employer disputed the Board’s jurisdiction to entertain PSAC’s complaint, asserting that the duty to bargain in good faith relates only to the negotiation of collective agreements and that the Dental Plan was not a "“collective agreement”" as defined in the Act. It further submitted that the negotiation of the Dental Plan did not take place under section 105 of the Act, as this allows a bargaining agent or an employer to give written notice to the other side requiring them to commence bargaining collectively with a view to entering into, renewing or revising a collective agreement. According to the employer, section 106 of the Act (which creates the duty to bargain in good faith) also has no application here, as that duty is only engaged once notice to bargain collectively has been given pursuant to section 105. Consequently, the employer argued that the Board lacked jurisdiction to deal with PSAC’s complaint and that it should be dismissed.
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[5] In a lengthy and detailed decision, the Board carefully considered the employer’s jurisdictional arguments. It accepted that the Dental Plan was not a "“collective agreement”", as defined in the Act, and that PSAC could not serve a "“notice to bargain”" under section 105 of the Act with respect to the Plan. The Board further found that the section 106 duty to bargain in good faith was only triggered once a "“notice to bargain”" had been served in accordance with section 105 of the Act. It also found that, on its face, paragraph 190(1)(b) of the Act only gave the Board jurisdiction to inquire into complaints alleging that a party had failed to comply with the duty to bargain in good faith imposed by section 106 of the Act. The Board acknowledged that there is no provision in section 190 that expressly allowed it to decide complaints with respect to an alleged failure to bargain in good faith where section 106 had not been engaged.
[6] That said, the Board did not accept the employer’s contention that the parties negotiate the terms of the Dental Plan outside of the collective bargaining process. Considering the relationship between the Dental Plan and collective bargaining, the Board found as a fact that the Plan exists because the parties negotiated for it through the collective bargaining process. The Board further found that the Dental Plan had been incorporated by reference into the parties’ collective agreements (which state that the Plan is "“deemed to form part of”" these agreements) and that it was "“entirely rooted in the collective bargaining process between the parties”". The Board also noted that PSAC had served notices to bargain collectively under section 105 of the Act with respect to five of its collective agreements, and that these notices had triggered the section 106 duty to bargain collective agreements in good faith. Given that the Dental Plan is deemed to form part of these agreements, negotiating its terms during the collective bargaining process meant that these negotiations must also engage the duty to bargain in good faith. These findings led the Board to conclude that having regard to the specific facts of this case, the employer’s obligation to bargain in good faith had been engaged, and that the employer had breached that duty.
[7] The Board then went on to consider whether the duty to bargain in good faith would be engaged even if the negotiation of the terms of the Dental Plan took place at a time when the collective agreements between the parties remained in force. In concluding that the duty would be triggered in such circumstances, the Board had regard to numerous factors including the principles of statutory interpretation, the wording of the Act’s Preamble, the purpose of the legislation, the constitutional nature of the right to bargain collectively and the relevant jurisprudence.
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[9] The employer has not demonstrated that the Board’s findings that the Dental Plan existed because the parties had negotiated for it through the collective bargaining process, that it had been incorporated by reference into the parties’ collective agreements and that it was "“entirely rooted in the collective bargaining process between the parties”" were unreasonable. Given these findings, it was reasonably open to the Board to conclude that there was a duty on the part of the employer to negotiate the terms of the Dental Plan in good faith, thus engaging the Board’s jurisdiction. This is further supported by the fact that, in this case, the complaint arose in the context of ongoing negotiations with respect new collective agreements between the parties. The Board’s decision on the jurisdictional question was thus justified, transparent, and intelligible, and no basis has been established for this Court’s intervention.
[10] After concluding that a duty on the part of the employer to bargain in good faith had been established on the facts of this particular case, the Board went on to find that there would be a similar duty on the part of the employer where negotiations with respect to the terms of the Dental Plan take place while collective agreements between the parties are in force. It is not necessary for us to address the reasonableness of the Board’s finding on this point as it was obiter on these facts, and nothing in these reasons should be taken as agreeing or disagreeing with the Board’s finding in this regard. . Wepruk v. Canada (Attorney General)
In Wepruk v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed a JR of a Federal Public Sector Labour Relations and Employment Board (FPSLREB) decision which upheld the applicant's employment termination:[1] The applicant seeks judicial review of a decision of the , 2021 FPSLREB 75 (Board Reasons). The Board dismissed the applicant’s grievance, upholding the employer’s termination decision.
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[10] In determining whether the applicant’s termination was justified, the Board applied the well-established framework from William Scott & Co. v. C.F.A.W., Local P-162, 1976 CarswellBC 518, [1977] 1 Can. L.R.B.R. 1 [William Scott], asking whether there were grounds for discipline and, if so, whether the penalty imposed was appropriate: Walker at para. 4; Basra v. Canada (Attorney General), 2010 FCA 24 at para. 24; Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487 at para. 49.
[11] As the applicant conceded that her misconduct warranted discipline, the Board’s analysis focused on the appropriateness of termination as a consequence. The Board properly recognized that threats of violence do not automatically justify termination, and that it had to consider both aggravating and mitigating factors, as it did: Board Reasons at paras. 263 and 265.
[12] The applicant argues that the Board failed to properly take into account her evidence of workplace bullying and harassment and the significant impact that it had on her state of mind. I disagree.
[13] A harassment grievance and other grievances filed by the applicant had been dismissed or settled and withdrawn prior to the Board hearing. Accordingly, the Board was not charged with determining whether there had been harassment as defined by the employer’s policy or the law. The Board did, however, consider whether the applicant’s perception of harassment and a toxic work environment were mitigating factors in its William Scott analysis: Board Reasons at para. 128.
[14] The Board carefully considered the evidence, finding that the applicant’s belief that she was harassed was credible and reasonable, as was the evidence of a toxic work environment. However, the Board could "“only go so far”" in assigning weight to these as mitigating factors without medical evidence of a diminished mental state: Board Reasons at paras. 299 and 301. The Board determined that there had been no immediate provocation and that the applicant’s state of mind did not justify a threat of violence or mitigate the seriousness of the misconduct, such that it could set aside the employer’s termination decision: Board Reasons at para. 303.
[15] The Board’s conclusion was based on its factual findings and a weighing of the aggravating and mitigating factors. Absent exceptional circumstances, this Court must refrain from reweighing and reassessing the evidence before the Board: Vavilov at para. 125. The applicant has not shown that the Board fundamentally misapprehended, or failed to account for, the facts. Rather, the Board’s reasons show that it meaningfully grappled with the evidence of harassment and the applicant’s state of mind, which was and remains the cornerstone of the applicant’s case.
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[17] Turning to the applicant’s procedural fairness arguments, the applicant submits that she was denied discovery in the Board proceedings and not provided with a transcript of the proceedings. The applicant also takes issue with the order of the proceedings and being subject to the burden of proof in establishing mitigating factors in the William Scott analysis. The latter is well-established in the case law: Wilson v. Treasury Board (Solicitor General Canada – Correctional Service), [1995] C.P.S.S.R.B. No. 23 at para. 18; King v. Deputy Head (Canada Border Services Agency), 2010 PSLRB 31 at para. 186, aff’d 2012 FC 488, aff’d 2013 FCA 131.
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