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Labour (Fed) - Federal Public Sector Labour Relations Act (FPSLRA) (2)

. Davis v. Canada (Royal Canadian Mounted Police) [FPSLRA - general]

In Davis v. Canada (Royal Canadian Mounted Police) (Fed CA, 2024) the Federal Court of Appeal clarifies some federal government labour jurisdictional complexities:

IX. Conclusion

[100] Although only some employer-employee relationships in the federal public service are governed by collective agreements, all are governed by the applicable federal legislation. As the Supreme Court held in Vaughan v. Canada, 2005 SCC 11, where Parliament has created a statutory scheme for dealing with labour disputes (as it has done with the enactment of the FPSLRA), "“courts should not jeopardize the comprehensive dispute resolution process contained in the legislation by permitting routine access to the courts”". Rather, "“the general rule of deference in matters arising out of labour relations should prevail”": both quotes from Vaughan, above at para. 39.

[101] Subsection 236(1) states clearly and unequivocally that the right granted to public service employees under Part 2 of the FPSLRA to grieve any dispute related to the terms and conditions of their employment is "“in lieu of any right of action”" that the employee may have in respect of the same matter: Bron, above at para. 29. Ms. Davis’ claims unquestionably relate to the terms and conditions of her employment.

[102] If Ms. Davis was dissatisfied with the third level grievance decision, her avenue of recourse was to the Federal Court through the judicial review process. It would have been open to the Federal Court to consider Ms. Davis’ arguments in that context, including her arguments as to the inadequacy of the RCMP’s investigation into her allegations, the procedural unfairness of the grievance process and the bias and corruption that she says is inherent in the process.

[103] However, allowing Ms. Davis’ civil action to proceed would undermine Parliament’s intent in enacting subsection 236(1) of the Act, and would amount to "“an impermissible incursion into the statutory scheme”": Greenwood, above at para. 130.

[104] Having carefully examined the decision of the Associate Judge, I am satisfied that the Federal Court judge did not err in law or make a palpable and overriding error in refusing to intervene. For these reasons, I would dismiss Ms. Davis’ appeal. The RCMP did not seek its costs and I would not award any.

. Adelberg v. Canada

In Adelberg v. Canada (Fed CA, 2024) the Federal Court of Appeal allowed an appeal in part from a decision that struck actions by one group of FPSLRA plaintiffs [here embodied in FPSLRA s.236], and gave leave to amend the claim by non-FPSLRA plaintiffs. These issues attract consideration under the Weber doctrine, where labour organization (unions) cannot sue but are restricted to the remedies set out in statute or employer policy.

Here the court holds that the Weber doctrine here prevent lawsuits for some claims related to the TB (SS: 'Treasury Board') COVID Policy:

C. Did the Federal Court err in striking, without leave to amend, the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule "“A”" to the Federal Court’s Reasons?

[54] On the third issue, I conclude that the Federal Court did not err in striking, without leave to amend, the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule "“A”" to the Federal Court’s Reasons, other than the RCMP. However, the Federal Court erred in striking the claims of RCMP members related to the TB Policy.

[55] It is not disputed that the plaintiffs who were employed by organizations other than the RCMP could have filed grievances under section 208 of the FPSLRA challenging the TB Policy or its application to them. As noted, the TB Policy was a term and condition of employment and thus subject to grievance under section 208 of the FPSLRA, which allows the employees of the organizations listed in Schedule "“A”" to the Federal Court’s Reasons other than the RCMP to file grievances relating to their terms and conditions of employment. That said, the FPSLREB recently held in Rehibi v. Deputy Head (Department of Employment and Social Development, 2024 FPSLREB 47, that a grievance challenging the application of the TB Policy could not be referred to adjudication due to the fact that only a subset of matters that may be grieved under the FPSLRA may be referred to adjudication under subsection 209(1) of the FPSLRA.

[56] The bar in section 236 of the FPSLRA applies to matters that may be grieved as opposed to those that may be adjudicated. In determining whether an issue is one that may be grieved, what matters is the essence of the claim made and not the way the claim is characterized in the Statement of Claim. Thus, it matters not that the plaintiffs allege a Charter breach or various tort claims; one must instead look to the essential character of the dispute to determine if it raises a matter that could have been the subject of a grievance: Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146 at para. 13; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, 1995 CanLII 108 at para. 52 [Weber]; Ebadi v. Canada, 2024 FCA 39, [2024] F.C.J. No. 380 at para. 24 [Ebadi].

[57] Here, compliance with the TB Policy was a term and condition of employment for the plaintiffs employed by the organizations listed in Schedule "“A”" to the Federal Court’s Reasons. The requirement to have been vaccinated against COVID-19 or face a leave without pay could therefore have been grieved under section 208 of the FPSLRA by those employed in the organizations listed in Schedule "“A”" to the Federal Court’s Reasons, other than the RCMP.

[58] The case law interpreting section 236 of the FPSLRA recognizes that the section is a complete bar to a right of action for any matter that may be the subject of a grievance, subject to the possible caveat that a court may possess the discretion to hear the claim if the internal grievance process does not or cannot provide an adequate remedy or, perhaps, if the case is otherwise exceptional: Ebadi, at para. 47; Bron v. Canada (Attorney General), 2010 ONCA 71, 99 O.R. (3d) 749 at paras. 29 and 32; Robichaud v. Canada (Attorney General), 2013 NBCA 3, 225 A.C.W.S. (3d) 430 at para.10.

[59] Here, the Federal Court had no evidence before it as to the efficacy of the grievance process. I therefore conclude that the Federal Court did not err in striking the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule "“A”" to the Federal Court’s Reasons other than the RCMP by virtue of section 236 of the FPSLRA. It was incumbent on the plaintiffs to have filed evidence about the efficacy of the grievance process if they wished the Court to exercise its discretion to hear the claim, as the plaintiffs did in Greenwood. In the absence of any such evidence pointing to any inefficacy of the grievance procedure, it was open to the Federal Court to have reached the conclusion that it did and to have struck, without leave to amend, the claims related to the TB Policy made by the plaintiffs employed by the organizations listed in Schedule "“A”" to the Federal Court’s Reasons other than the RCMP.

[60] For the plaintiffs employed by the RCMP, on the other hand, it is unclear whether they possessed rights to grieve the TB Policy under the RCMP Act or the Regulations and Standing Orders under that Act. And, for the reasons already noted above, it is not plain and obvious that they could have grieved under the FPSLRA.

[61] "The TB Policy was not adopted by the RCMP, but rather by the Treasury Board. It is not plain and obvious that its application would be "“a decision, act or omission in the administration of the affairs of the Force”" that would be grievable under section 31 of the RCMP Act. Somewhat similar policies have been found not to be subject to grievance under the RCMP Act because they are not decisions, acts or omissions made in the administration of the affairs of the Force." "

[62] For example, in Pasic v. Canada (Attorney General), 2022 FC 1171, 2022 CarswellNat 3030, the Federal Court upheld a decision of the Final Level Adjudicator in the RCMP grievance process. The Adjudicator dismissed the applicant’s grievance challenging where he was placed on the pay grid because pay was fixed by Treasury Board not the RCMP and therefore the grievance could not be dealt with under the RCMP Act.

[63] To similar effect, in Commissioner of the RCMP’s grievance decision G-335, dated April 14, 2005, an RCMP member sought to challenge a decision made by an employee of Treasury Board Secretariat to decline to declare the community in which the member resided prior to being transferred a "“depressed housing market”". The Commissioner found that he had no jurisdiction to hear a grievance that was based solely on a decision which was rendered by Treasury Board and adopted the External Review Committee’s finding that "“the mere fact that the relocation benefits which are at issue in this grievance pertain to the performance of the member’s duties as an RCMP member cannot suffice to subject the decision made by an employee of another government department to a grievance process that is internal to the RCMP”": see RCMP External Review Committee, "“Grievance Case Summary - G-335”", online: . Similarly, in grievance decision G-255, dated March 28, 2001, an RCMP member," "stationed in an Isolated Post, contested a decision declaring him ineligible to receive an allowance for fuel and utilities expenses, which was available only under certain conditions (not met by the member), through the Isolated Posts Directive, issued by the Treasury Board. The Commissioner similarly found that he had no jurisdiction to hear the grievance because the RCMP had no authority to pay a fuel and utilities allowance in light of the Treasury Board’s Isolated Posts Directive: see RCMP External Review Committee, "“Grievance Case Summary - G-255”", online: . Likewise, in grievance decision G‑484, dated November 6, 2012, an RCMP member grieved the Vacation Travel Assistance rate for his isolated post, which was fixed by the Treasury Board. The Commissioner again found that the member did not have standing to grieve this issue because it was not a decision, act or omission made in the administration of the affairs of the Force: see RCMP External Review Committee, "“Grievance Case Summary - G-484”", online: .

[64] Since the defendants sought to strike the Statement of Claim based on the fact that a grievance process was available, it was incumbent on the defendants to establish that the TB Policy could have been grieved by RCMP members. However, no evidence was tendered on this issue and the statutory scheme is not sufficiently clear to definitively establish that the TB Policy could have been grieved by RCMP members. I therefore conclude that the Federal Court erred in striking the claims of RCMP members related to the TB Policy without leave to amend. The plaintiffs who were members of the RCMP should have been granted leave to amend their claims related to the TB Policy on the same basis as the plaintiffs who were employed by organizations other than those listed in Schedule "“A”" to the Federal Court’s Reasons were granted leave to amend.

. Adelberg v. Canada

In Adelberg v. Canada (Fed CA, 2024) the Federal Court of Appeal allowed an appeal in part from a decision that struck actions by one group of FPSLRA plaintiffs, and gave leave to amend the claim by non-FPSLRA plaintiffs. These issues attract consideration under the Weber doctrine [here embodied in FPSLRA s.236], where labour organization (unions) cannot sue but are restricted to the remedies set out in statute or employer policy:

[40] A pleading may be struck for disclosing no reasonable cause of action only where this is plain and obvious: Berenguer v. Sata Internacional - Azores Airlines, S.A., 2023 FCA 176, 2023 CarswellNat 2983 at para. 23, leave to appeal to SCC refused, 40949 (11 April 2024) [Berenguer], citing Nevsun Resources Ltd. v. Araya, 2020 SCC 5, [2020] 1 S.C.R. 166 at para. 64; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 at para. 17. The plain and obvious test applies to both the discernment of whether a claim pleaded is justiciable and to the discernment of whether it falls within the jurisdiction of the Federal Court: Berenguer at para. 24; Windsor (City) v. Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617 at para. 24. Where the issue is a jurisdictional one, evidence is admissible and, indeed, may be required: Berenguer at para. 26; Greenwood at para. 95; MIL Davie Inc. v. Société d’Exploitation et de Développement d’Hibernia Ltée (1998), 226 N.R. 369, 1998 CanLII 7789 (FCA) at paras. 7-8.

....

A. Did the Federal Court err in determining that the plaintiffs employed by the RCMP were subject to the bar in section 236 of the FPSLRA?

[42] On the first issue, I conclude that the Federal Court erred in finding that the bar in section 236 of the FPSLRA applies to the plaintiffs who were members of the RCMP.

[43] It will be recalled that subsection 236(1) of the FPSLRA provides that the “"right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute”".

[44] To recall, the relevant definition of what constitutes a grievance is set out in subsection 206(1) of the FPSLRA. That section states that a grievance is one that may be filed under either section 208 or 238.4 of the FPSLRA. Thus, the bar in section 236 applies only to those who could seek redress via a grievance under section 208 or 238.4 of the FPSLRA.

[45] Yet, section 238.4 of the FPSLRA applies only to grievances arising under a collective agreement applicable to RCMP members who meet the statutory definition of "“employee”" in the FPSLRA. Based on the materials that were before the Federal Court and that are now before this Court, it is impossible to ascertain whether any collective agreement has been negotiated for RCMP members. The National Police Federation was certified as the bargaining agent for RCMP members in 2019 by the FPSLREB in National Police Federation v. Treasury Board, 2019 FPSLREB 74. However, it is unclear if a collective agreement has been achieved and, if so, whether a challenge to the TB Policy could be the subject of a grievance under any such agreement. Given this lack of information, it is not plain and obvious that the plaintiffs who were members of the RCMP possessed rights to grieve the TB Policy under a grievance to which section 238.24 of the FPSLRA pertains.

[46] Further, section 208 of the FPSLRA is inapplicable to RCMP members by virtue of section 238.02 of that Act. Indeed, the FPSLREB recently confirmed in Frémy v. Royal Canadian Mounted Police, 2021 FPSLREB 47 that the only grievance rights RCMP members possess under the FPSLRA arise under section 238.24 of the FPSLRA and thus only pertain to alleged violations of a collective agreement.

[47] I note that many actions have proceeded against the RCMP for workplace issues, including class actions for matters that could have been the subject of grievances under the RCMP Act or Regulations or Standing Orders issued under that Act: see e.g. Greenwood at paras. 81, 160; Tiller v. Canada, 2019 FC 895, 307 A.C.W.S. (3d) 470; Merlo v. Canada, 2017 FC 533, 281 A.C.W.S. 3(d) 702; Davidson v. Canada (Attorney General), 2015 ONSC 8008, 262 A.C.W.S. (3d) 648. There was no suggestion by the respondent in any of the foregoing cases that the bar in section 236 of the FPSLRA applied.

[48] I therefore conclude that the Federal Court erred in finding that section 236 of the FPSLRA foreclosed the action by the plaintiffs who were members of the RCMP as it is not plain and obvious that the provision applies to them.

. Adelberg v. Canada

In Adelberg v. Canada (Fed CA, 2024) the Federal Court of Appeal allowed an appeal in part from a decision that struck actions by one group of FPSLRA plaintiffs, and gave leave to amend the claim by non-FPSLRA plaintiffs. These issues attract consideration under the Weber doctrine, where labour organization (unions) cannot sue but are restricted to the remedies set out in statute or employer policy. Here the court [at paras 19-35] outlines some FPSLRA basics, particularly as they relate to the bar on civil actions.

. 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.

....

[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.

....

[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.

....

[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.

....

[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.