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Labour (Fed) - Federal Public Sector Labour Relations and Employment Board Act (FPSLREBA). Canada (Attorney General) v. St-Onge [overpayments by the Crown]
In Canada (Attorney General) v. St-Onge (Fed CA, 2024) the Federal Court of Appeal allowed a JR, here from "a decision of the Federal Public Sector Labour Relations and Employment Board (Board) allowing a grievance" where "the respondent’s employer, the National Research Council of Canada, sought to recover amounts it mistakenly paid to the respondent ... by withholding a portion of her salary".
Here the court considers the remedial overpayment potential for the situation under "subsection 155(3) of the Financial Administration Act" ['Recovery of over-payment']:[24] In light of this, at the hearing of the application, we asked the parties to identify the cause of action, suggesting that a claim for breach of contract against the respondent seemed inapt since the respondent does not appear to have breached the collective agreement. We sought supplementary written submissions regarding the cause of action and the operation of subsection 155(3) of the Financial Administration Act.
[25] The parties agree that subsection 155(3) provides the Receiver General with a mechanism to recover an overpayment, but disagree as to its effect.
[26] The respondent says there can be no overpayment without a cause of action—"“[s]omething must make the overpayment an overpayment”": Respondent’s Further Written Submissions at 3. She submits that the cause of action is the common law claim of restitution for money paid under a mistake of fact, and that all of the elements of that cause of action arose in Ontario.
[27] The applicant’s submission regarding the cause of action is not as clear as it might be. On the one hand, it describes subsection 155(3) as "“not a cause of action in itself”" and instead the cause of action is the set of facts referred to in subsection 155(3) as needed for its exercise: Applicant’s Further Written Submissions at paras. 11, 14.
[28] On the other hand, the applicant suggests that subsection 155(3) authorizes the federal Crown to recover the overpayment, such that the elements of a cause of action for restitution in common law are neither relevant nor engaged: Applicant’s Further Written Submissions at para. 16. Specifically, the applicant asserts that "“none of the relevant facts underlying the exercise of ss. 155(3) of the [Financial Administration Act] were in any way affected by the province in which the [r]espondent worked”". Rather, "“[t]he overpayment…was a misapplication of the [c]ollective [a]greement”" which "“comprehensively defines the [r]espondent’s pay and provides the very basis for determining the existence of the overpayment”": Applicant’s Further Written Submissions at para. 18; Applicant’s Reply at para. 1. That appears to be an argument that the exercise of the right under subsection 155(3) is the cause of action.
[29] Put another way, or as I understand the applicant’s position, absent subsection 155(3), the applicant would have been required to initiate an action to establish that the respondent was indebted to her employer. However, the federal Crown’s authority to exercise its right under that provision depends only on there being an overpayment, and no common law cause of action is necessary to establish it.
[30] Courts should generally respect Parliament’s intention that administrative decision-makers decide the matters entrusted to them: Vavilov at para. 142. That principle applies here. Each party takes a different position on the nature of the cause of action—a common law action for restitution or an action to enforce the exercise of a statutory right to recover an overpayment. I have not been persuaded that only one is possible such that the result before the Board is inevitable.
[31] Accordingly, I would grant the application for judicial review, and remit the matter to the Board for redetermination. To apply section 32 of the Crown Liability and Proceedings Act, the Board must decide on the relevant cause of action, identify its constituent elements and decide whether they all arise in a province. As the applicant did not seek costs, I would award none. . Canada (Attorney General) v. St-Onge [adoption of provincial law]
In Canada (Attorney General) v. St-Onge (Fed CA, 2024) the Federal Court of Appeal allowed a JR, here from "a decision of the Federal Public Sector Labour Relations and Employment Board (Board) allowing a grievance" where "the respondent’s employer, the National Research Council of Canada, sought to recover amounts it mistakenly paid to the respondent ... by withholding a portion of her salary".
Here the court considers the federal Crown Liability and Proceedings Act [CLPA (Cda)], s.32 - which adopts some provincial Crown liability-related laws (including some limitations law) for it's own purposes - and further, whether the limitations cause-of-action arose in Ontario:[3] Before the Board, the parties agreed that section 32 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, applied to the employer’s action to collect the overpayment, but disagreed as to how it applied.
[4] Section 32 provides as follows:"Provincial laws applicable "
"Règles applicables "
"32 Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose. "
"32"" Sauf disposition contraire de la présente loi ou de toute autre loi fédérale, les règles de droit en matière de prescription qui, dans une province, régissent les rapports entre particuliers s’appliquent lors des poursuites auxquelles l’État est partie pour tout fait générateur survenu dans la province. Lorsque ce dernier survient ailleurs que dans une province, la procédure se prescrit par six ans." [5] In her grievance, the respondent argued that Ontario’s two-year limitation period applied because the cause of action arose in Ontario and the employer’s claim to the overpayment was therefore statute-barred. In contrast, the applicant argued that the federal six-year limitation period applied because the cause of action arose "“otherwise than in a"" province”". In support of its position, the applicant relied principally on Markevich v. Canada, 2003 SCC 9 [Markevich] and Dansou v. Canada Revenue Agency, 2020 FPSLREB 100 [Dansou].
[6] Markevich concerned proceedings to collect taxes owing under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). In that case, after finding that section 32 of the Crown Liability and Proceedings Act was sufficiently broad to apply to statutory collection procedures under the Income Tax Act, the Supreme Court had to determine whether the cause of action on the federal tax debt arose in a province or otherwise than in a province.
[7] The Supreme Court observed that tax debts arise under federal legislation, create rights and duties between the federal Crown and residents of Canada or those who earn income within Canada, and are owed to the federal Crown which is not located in any particular province and does not assume a provincial locale in its assessment of taxes: Markevich at paras. 39-40. In its view, "“on a plain reading of s. 32, the cause of action ""in [""Markevich""] arose ‘otherwise than in a province’”" and "“[a] purposive reading of s. 32 support[ed] this finding”" because Parliament "“intended for limitation provisions to apply uniformly throughout the country with regard to proceedings of the kind at issue in [that] appeal”": Markevich at paras. 39-40. The Supreme Court thus decided that an action to collect tax debts under the Income Tax Act arose otherwise than in a province so the provincial limitation period did not apply: Markevich at para. 41.
[8] Dansou concerned an overpayment to a unionized employee. There, too, the Board sought "“to locate the ‘cause of action’”" and determined that it arose otherwise than in Quebec, where the grievor lived and worked: Dansou at para. 30. The Board characterized the cause of action as "“involv[ing] pay and the calculation of the salary level”", observing that "“[t]he calculation is performed by the CRA, which conducts its operations across Canada…[and] is headquartered in Ottawa. The pay calculation is carried out based on the collective agreement, which applies across the country”": Dansou at para. 30.
[9] Notwithstanding those decisions, the Board agreed with the respondent in this case, allowed her grievance, and ordered the employer to stop payroll deductions to recover the overpayment and to repay the respondent amounts previously deducted. The applicant now seeks judicial review of that decision.
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[18] ... I agree the Board’s decision is unreasonable.
[19] A cause of action arises in a province only where all the relevant elements of that cause of action occurred in the same province: Canada v. Maritime Group (Canada) Inc., 1995 CanLII 3513 (FCA), [1995] 3 F.C. 124, 185 N.R. 104 (F.C.A.) at 129; Apotex Inc. v. Astrazeneca Canada Inc., 2017 FCA 9 at para. 114, leave to appeal to SCC refused, 37478 (1 June 2017) [Apotex]; Sanofi-Aventis v. Apotex Inc., 2013 FCA 186 at para. 105; Canada (Attorney General) v. Liang, 2018 FCA 39 at para. 19.
[20] Here, the Board failed to identify the relevant cause of action, despite the parties’ written submissions to the Board on this point.
[21] In particular, the respondent submitted that there were two possible causes of action to recover the overpayment—breach of contract or unjust enrichment — but regardless, all of the essential facts occurred in Ontario, so the cause of action arose in Ontario: Written Submissions of the Grievors (Limitations Period Issue) at para. 22, Applicant’s Record at 174.
[22] Although the applicant did not use the phrase "“cause of action”", it analogized the circumstances in this case to those in Markevich, submitting that a salary overpayment that is made contrary to the terms of a national collective agreement gave rise to a federal debt that can be collected under a federal statutory procedure — subsection 155(3) of the Financial Administration Act.
[23] While we must review the Board’s reasons in light of the history and context of the proceedings giving rise to those reasons, the reasons must also "“meaningfully grapple with [the] key issues”": Vavilov at paras. 94, 128. Here, the Board concluded that where the cause of action in question arose was determinative, but it made no effort to identify the precise cause of action, and thus proceeded otherwise than as required by the very jurisprudence it cited, including Markevich and Apotex.
....
[30] Courts should generally respect Parliament’s intention that administrative decision-makers decide the matters entrusted to them: Vavilov at para. 142. That principle applies here. Each party takes a different position on the nature of the cause of action—a common law action for restitution or an action to enforce the exercise of a statutory right to recover an overpayment. I have not been persuaded that only one is possible such that the result before the Board is inevitable.
[31] Accordingly, I would grant the application for judicial review, and remit the matter to the Board for redetermination. To apply section 32 of the Crown Liability and Proceedings Act, the Board must decide on the relevant cause of action, identify its constituent elements and decide whether they all arise in a province. As the applicant did not seek costs, I would award none. . Walcott v. Public Service Alliance of Canada
In Walcott v. Public Service Alliance of Canada (Fed CA, 2024) the Federal Court of Appeal cited the 'duty of fair representation' FPSLREBA provision [s.187]:[1] The applicant, Victor Walcott, seeks judicial review of a decision of the Federal Public Sector Labour Relations and Employment Board (Board): 2023 FPSLREB 54. The Board summarily dismissed the applicant’s complaint that his former union, the Public Service Alliance of Canada, had failed in its duty of fair representation, under section 187 of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2, in relation to his 1997 termination grievance. ... . Ghafari v. Canada (Attorney General)
In Ghafari v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a JR against a decision of the Federal Public Service Labour Relations and Employment Board (FPSLREB) that dismissed a "complaint alleging abuse of authority in an internal appointment process". These quotes address some of these statute-specific complaint procedures:[7] The Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (Act) requires appointments to be made based on merit and subsection 30(2) describes the circumstances in which an appointment is made on the basis of merit. An unsuccessful candidate for an internal appointment may make a complaint to the Board that they were not appointed or proposed for appointment by reason of an abuse of authority in the exercise of authority under subsection 30(2): ss. 77(1)-(2). The burden of establishing abuse of authority rests with the complainant: Gulia v. Canada (Attorney General), 2021 FCA 106 at para. 7 (Gulia).
[8] Mr. Ghafari made a complaint to the Board under section 77 of the Act, alleging an abuse of authority resulting in an incorrect assessment of his competencies for the senior methodologist position. ....
[9] ... While acknowledging Mr. Ghafari’s belief that he was not fairly assessed in the appointment process, the Board explained that its role was not to reassess him. Rather, the question before the Board was whether an abuse of authority had occurred. The Board observed that Mr. Ghafari had the burden of establishing bias or other abuse of authority and concluded he had not demonstrated either.
....
[28] The focus of a complaint under section 77 of the Act is abuse of authority in the exercise of authority under subsection 30(2) of the Act—that is, the authority to make an appointment on the basis of merit. An appointment is based on merit where the person meets the essential qualifications for the work performed: Act, s. 30(2)(a). But those qualifications may be established by the employer and, to determine whether a person meets the qualifications for the position, any assessment method considered appropriate may be used: Act, ss. 31, 36. The Board explained that it could not examine the choice of assessment method or the qualifications for the position: reasons at paras. 101, 110. . Canada (Attorney General) v. Rushwan
In Canada (Attorney General) v. Rushwan (Fed CA, 2023) the Federal Court of Appeal considers the high deference accorded to a labour board on JR, here the Federal Public Sector Labour Relations and Employment Board:[2] The interpretation of collective agreements is “the heartland of [the Board’s] expertise”, and its decisions on such matters are owed deference on an application for judicial review (Canada (Attorney General) v. Fehr, 2018 FCA 159, 296 A.C.W.S. (3d) 170 at para. 4). The Board’s decision accordingly attracts reasonableness review, in which this Court will only intervene where it encounters a fatal flaw that is central to the merits of the decision (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 100 [Vavilov]). . Public Service Alliance of Canada v. Canada (House of Commons)
In Public Service Alliance of Canada v. Canada (House of Commons) (Fed CA, 2023) the Federal Court of Appeal considered a JR from an arbitrator's award made by the Federal Public Sector Labour Relations and Employment Board (the Board), established under s.50 of the Parliamentary Employment and Staff Relations Act. The case is one of the very few that deals with the House of Commons as a party.
. Public Service Alliance of Canada v. Canada (Senate)
In Public Service Alliance of Canada v. Canada (Senate) (Fed CA, 2023) the Federal Court of Appeal considered a JR from an arbitrator's award made by the Federal Public Sector Labour Relations and Employment Board (the Board), established under s.50 of the Parliamentary Employment and Staff Relations Act. The case is one of the very few that deals with the Senate as a party.
. Canada (Attorney General) v. National Police Federation
In Canada (Attorney General) v. National Police Federation (Fed CA, 2023) the Federal Court of Appeal considered a Crown JR of a decision of the Federal Public Sector Labour Relations and Employment Board. This JR dealt with 'civilianization' by the Treasury Board of some work previously allocated to the RCMP to civilians:[7] The NPF is the bargaining agent representing all non-commissioned regular members of the RCMP and reservists. As this Court stated in Canada (Attorney General) v. National Police Federation, 2022 FCA 80 (NPF 2022), up until the changes made to the Act in 2017, regular members and reservists of the RCMP were not permitted to unionize or engage in collective bargaining. That had been the case since collective bargaining was first introduced in the federal public service in the late 1960s. This limitation was lifted after having been found to impermissibly encroach on the freedom of association guaranteed by the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3 (NPF 2022 at para. 15).
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