JOHN KING Applicant v. ATTORNEY GENERAL OF, 2012 FC 488

Date: 20120426 Docket: T-2171-10 Citation: 2012 FC 488 Ottawa, Ontario , April 26, 2012 PRESENT: The Honourable Mr. Justice Martineau BETWEEN: JOHN KING Applicant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] The applicant was hired in 1989 as customs inspector at Pearson International Airport [PIA]. Since 1996, he was on leave with pay, being engaged full-time in union matters.

H is employment with the Canada Border Services Agency [CBSA] was terminated in November 1997 following the posting on the union website of two statements that the deputy head viewed as counselling or procuring an illegal work stoppage . [ 2 ] Alleging that the employer had violated the non-discrimination clause of the collective agreement and the non-interference provision of the Public Service Labour Relations Act , SC 2003, c 22 , [ PSLRA ] , the applicant filed grievances against a 30 day suspension issued on November 2, 2007 and his subsequent dismissal on November 20, 2007.

Three years later, on November 29, 2010, the grievances were denied by a member of the Public Service Labour Relations Board [Board] acting as adjudicator ( King v Deputy Head (Canada Boarder Service Agency) , 2010 PSLRB 125 ), leading to the present judicial review application. [ 3 ] In a nutshell, the adjudicator found that the deputy head had general authority under the Financial Administration Act , RSC 1985, c F-11 [ FAA ] to discipline the applicant. The statements posted on the union website constituted “counselling” or “procuring” an illegal strike contrary to subsection 194(1) of the PSLRA .

Accordingly, there was no violation of the non-discrimination clause of the collective agreement or the non-interference provision of the PSLRA . The discipline imposed by the employer was appropriate and reasonable in the circumstances. [ 4 ] The present judicial review application is dismissed. For the reasons below, the adjudicator’s findings of fact and law are reasonable. Accordingly, the Court must refrain from substituting its opinion to that of the adjudicator, despite the fact that the Court has some doubts with respect to the correctness of the

interpretation made by the adjudicator of subsection 194(1) of the PSLRA . In this respect, the Court feels bound to apply the standard of reasonableness in view of most recent jurisprudence of the Federal Court of Appeal and the Supreme Court of Canada. I. BACKGROUND

[ 5 ] In the arbitration proceeding, five witnesses testified on the management’s side, including the deputy head [Mr. John Gillan]. On the union’s side, three witnesses testified, including the applicant. Since a court reporter was not present at the hearing no transcripts are available. In preparing the background, the Court has considered the

summary of the evidence found in the impugned decision itself (paragraphs 8-72), the numerous exhibits filed at the hearing by the applicant and the employer, including the parties’ written representations, as well as any affidavit filed in this proceeding (see volumes I, II and III of the applicant’s application record). Union representative [ 6 ] The applicant commenced his employment as a customs inspector in 1989, in a position which later became known as a “border services officer” at PIA.

In November 1999, customs inspectors – until then employed with Revenue Canada – came under a newly created agency known as the Canada Customs and Revenue Agency. In December 2003, they were transferred to another agency, the CBSA, which also included agricultural inspectors – formerly employed by the Canadian Food Inspection Agency – and officers from PIA’s Immigration Department.

These three groups were called the “legacy groups” by the management and the union. [ 7 ] In summer of 1990, the applicant became a steward for Local 24 of the Customs Excise Union Douanes Accise [CEUDA], a component of the Public Service Alliance of Canada [PSAC]. He was later elected as a vice-president in 1993. He also served as the president of CEUDA Local 24 from 1996 to 1999 and from 2005 to June 2008.

Between 1999 and 2005, he served as the National Executive of the CEUDA National Organization. [ 8 ] It is not challenged that the applicant was acting in his union capacity when the alleged acts of misconduct took place and he was disciplined by the employer. At that time, the applicant was actively seeking the resolution of a long time conflict with respect to variable shift schedules arrangements [VSSA]. Variable shift

schedule arrangements [ 9 ] The legacy groups had all different work schedules. The immigration group was on a shifting

schedule of two days on, two days off, and then three days on, three days off (the 2/2 schedule). The agriculture group had a

schedule of four days on, four days off (the 4/4 schedule). The customs inspectors group had the least favourable

schedule of five days on, three days off (the 5/3 schedule); this was still the situation in December 2006. [ 10 ] The PSAC’s proposition for a 5/4 shift

schedule for customs legacy employees having been continuously rejected by the management, CEUDA Local 24 conducted a vote in December 2006. All boarder services officers in Passengers Operations voted against the existing VSSAs. CEUDA Local 24 immediately cancelled the 5/3

schedule for the customs staff and requested consultations for negotiation of a new VSSA under clause 25.22, in absence of which shift scheduling would revert to that specified in clause 25.13 and 25.17 of the collective agreement. [ 11 ] Discussions between CBSA and CEUDA Local 24 concerning the VSSA issue continued in January and February 2007. However, relying on clause 25.22(

b) of the collective agreement, it was without agreement or consultation with the PSAC that the CBSA ultimately adopted a 6/2

schedule that included non-standard starting times for the customs legacy employees, requiring them to work 60 days more, per year, than under the previous scheduling arrangement. The new

schedule became effective on February 12, 2007. According to the record before the Court, both management and union representatives acknowledged on different occasions that the imposition of the new standard shifts was not appreciated by affected employees and that it resulted in serious tensions and frequent accommodation and burn-out issues. Policy grievance [ 12 ] On February 27, 2007, the PSAC filed a policy grievance against the new schedule, alleging that the 6/2 shift

schedule was contrary to clause 25.17 and a fundamental breach of the collective agreement. The PSAC also maintained that the employer had not only failed to engage in “meaningful consultations” with the union prior to the implementation of the new shift schedule, but had also failed to demonstrate a need to increase the number of shifts in the

schedule in order either to meet the “needs of the public” or to ensure the “efficient operation of the services”, as required in clause 25.22(

b) of the collective agreement. [ 13 ] More than two years afterwards, despite the objection of the employer that the issue was moot, the policy grievance was allowed in

part in May 2009. A declaration was issued by the adjudicator that the employer had breached the collective agreement regarding three shift starting times in passenger operations and one shift starting time in commercial operations ( Public Service Alliance of Canada v Treasury Board (Canada Border Services Agency ), 2009 PSLRB 66 ).

Debates with respect to legal strike position [ 14 ] The collective agreement had expired on June 20, 2007. Throughout the summer of 2007, the parties remained at odds on the issue of shift schedules despite the significant efforts and progress that was made toward finalizing a new VSSA between CBSA and CEUDA Local 24. The general discontent and tension caused among affected employees as a result of the 6/2 shift

schedule led to complaints and call for action by a number of CEUDA Local 24 members and VSSA discussions gradually generated a dispute with the management as to whether CBSA’s actions had placed CEUDA Local 24 in a legal strike position. [ 15 ] At the internal union level, the debate was initiated by Brian O’Farrell, an official with CEUDA Local 24, who, on June 22, 2007, wrote to its local president (the applicant) and to CEUDA National president (Ron Moran) about having been approached by six members “inquiring into the propriety of withdrawing services”, and invited the recipients to “articulate at what point precisely would members be able to withdraw services without fear of recrimination”.

The union official also advised that he would “consider the matter urgent, as more strong headed members may not be willing to calmly wait for verification”. [ 16 ] In this context, the applicant continued writing to both Mr. Moran and Mr. Gordon (PSAC National president) seeking guidance and clarification on what legal options, including a strike action, were potentially available to Local 24 members in the circumstances. During the discussions engaged with CEUDA National, Mr.

Moran confirmed that before a bargaining unit could be in a legal strike position an essential service agreement had to be in place, but indicated that he would obtain a legal opinion on the available legal recourses as requested by CEUDA Local 24 (Mr. Moran’s letters dated June 23 and June 25, 2007). [ 17 ] The applicant responded that he would like another question answered as to whether the affected employees could report to work according to the standard shifts identified in clause 25.17 of the collective agreement (applicant’s letter dated June 27, 2007).

Exchanges between the applicant and the national office in July 2007 show that the applicant was seeking a more expeditious resolution of the matter. [ 18 ] On July 11, 2007, Mr. Moran provided an update to the applicant and he replied, asking what the PSAC’s next steps would be to put an end to the breach of the collective agreement. Mr. Moran replied on July 12, 2007 as follows: As for the next steps, as you know I have now made the formal request for a legal opinion…For its part the bargaining agent is representing on the policy grievance which is working its way through the system.

While I totally agree that these courses of action do not represent the rapid fix the affected members would like to see, they nonetheless represent the only established avenues currently at our disposal… In my view, the next step should clearly be letting the affected members know that unless they individually act , we are not at the [level] of seeing this resolved in short order. Reminding them that assisting the employer in making the 6-2 work by doing such things as accepting overtime is undoubtedly an excellent place to start (though it should in no way end there).

Knowing full well how the Minister’s Office and the media work, I can assure you that unless worksite disruptions are in play, neither will give the matter a second [thought] . [Emphasis added] [ 19 ] The applicant replied on July 13, 2007, as follows: … Our members need to receive direction from a National President telling us to report for work on no shift other than what is stipulated in

Article 25.17 unless the CBSA provides operational requirements as it is supposed to and as we interpret the Master Agreement to mean . Once John or you give direction to follow the letter of the Agreement, we will do the rest. Such action will surely result in a speedy resolution. …

All we need is the support and blessing from this union to follow our Agreement as we understand it. If our union can’t even do this, it’s time for change. [Emphasis added] [ 20 ] The above correspondence was forwarded to Minister of Public Safety, Stockwell Day, Prime Minister Stephen Harper, Vic Toews, President of the Treasury Board, and Stephen Rigby, Deputy Head of the CBSA, by Mr. O’Farrell on July 13, 2007 (Exhibit E-1, tab 8). [ 21 ] In light of these exchanges, the employer took the position before the adjudicator that Mr.

Moran was telling the applicant that they were not in a legal strike position but that the applicant should encourage individual members to engage in illegal job action, that simple threats were no longer enough and that more concrete action was needed. In response, the applicant was pushing Mr. Moran and seeking support from CEUDA national for strike activity. He was doing this by seeking authorization for employees not to report for any shift other than a standard shift specified in

Article 25.17 of the collective agreement. [ 22 ] Mr. Norm Sheridan, one of the employer’s representatives, testified at the arbitration that the effect of such a boycott would have been wide-scale interruption of services given that 65% of his staff was scheduled on shifts other than those provided for in

Article 25.17. What was being advocated by the applicant was a boycott of the majority of shifts that had been implemented by the employer for which the union had a policy grievance working its way through the system. By any account what was being pursued was illegal strike activity on a massive scale. Mr. Sheridan testified that this boycott would have made it impossible to deliver the program, that the effects would be felt downstream with planes being stuck on the tarmac. In a word Mr. Sheridan indicated that it would be “pandemonium”. [ 23 ] After his exchanges with Mr.

Moran, the applicant wrote to two other union officials, Mr. Steve Pellerin-Fowlie and Mr. Gerry Halabecki, regarding the legality of a wildcat or a rotating strike and stated that he was seeking an opinion on what would/may constitute an illegal strike action in the circumstances considering that the collective agreement had expired since June 20, 2007, and that the employer had not proceeded to negotiate an essential service agreement (letter dated July 20, 2007). [ 24 ] On July 26, 2007, the applicant wrote an email to a number of CBSA management representatives (including Mr.

John Gillan) and CEUDA representatives, in which he stated that in light of the expiration of the collective agreement, the fact that the employer refused to honour the agreement and had not sought to negotiate essential service agreements, the union was in a legal position to walk off the job. He also requested that the regional management provide tentative dates for the union and management to formally consult on any concerns or legal arguments of the employer. On the same day, Mr.

Gillan took the position that the collective agreement continued to be in effect and that the union was not in a legal strike position. [ 25 ] Mr. Moran was provided with a legal opinion on the matter on August 2, 2007. Essentially, the external opinion provided by legal counsel, after having reviewed the applicable principles and relevant case law, suggests that this is not a situation where the employees appear to have the right to refuse to comply to the imposed VSSA

schedule and that the preferred way of settling the matter is to reach agreement with the employer or to press the policy grievance on to arbitration in an expeditious manner. Recognizing that a possible ground for refusing to comply with the imposed VSSA

schedule is where irreparable harm or prejudice would be suffered by employees, legal counsel offers to re-examine the opinion “once additional facts respecting irreparable harm become available”. [ 26 ] Judging that the legal opinion was inconclusive with respect to the rights of the members of CEUDA Local 24, the applicant wrote to Mr. Moran and Mr. Gordon on August 15, 2007, requesting for further review by counsel of specific factual circumstances at issue in the VSSA dispute.

The applicant required clarification on whether the exception of a “patently obvious” breach of the collective agreement by the employer to the “obey now, grieve later” rule found application in their case. [ 27 ] In his August 15, 2007 email, the applicant notably writes: Why must we obey the collective agreement in its entirety if the employer is not? … Why won’t you direct our members to report for work as required as per the standard shifts under

Article 25.17 as the PSAC interprets the collective agreement or inform the CBSA that you will be directing us to follow the agreement as we interpret it unless this matter is resolved [emphasis added]?

[Emphasis in original] [ 28 ] On August 24, 2007, Mr. Gordon wrote back to the applicant stating that the policy grievance was the proper mechanism to deal with the issue, and insisted that this solution was not tantamount to failing to protect the members’ rights or an acquiescence to the employer’s actions. On the same date, the applicant responded to Mr.

Gordon reiterating his position on the members’ legal right to walk off the job in absence of an essential service agreement and requesting for PSAC’s final position in this respect. [ 29 ] This now brings us to the two website postings which were the object of the disciplinary actions against the applicant (30 day suspension and termination of employment). First website posting [ 30 ] The first email which was posted on the CEUDA Local 24 website on September 11, 2007 is an update on some of the activities of the local on the VSSA negotiations.

The posting is, in fact, a reproduction of the applicant’s response, dated September 11, 2007, to an email from a member requesting updates on the VSSA negotiations. It reads as follows: Sisters and Brothers, We agreed to have a joint resource committee come to Toronto last July and help with the situation. Barbara Hebert cancelled out. Our 4 th National V.P. suggested a mediator be called in to help resolve the issue and again, John Gillan refused the idea, stating it wasn’t necessary.

We submitted additional proposals for commercial operations for the employer to consider, and for their feedback on the operational feasibility, the employer has not gotten back to us. My opinion, management was taking advantage of the additional staff (students) and during this time period over the summer was putting you to the test hoping you would burn out, forcing you to give in. Management may have also been waiting to see what happened in Montreal . Montreal apparently also told the employer where to park their proposal and now in a similar situation as us facing a possible 6 & 2 themselves.

In the meantime I have been pressing the bargaining agent and CEUDA National for support to walk off the job now. We have been applying pressure to encourage management to return to the table and bargain in good faith. Hopefully we have achieved this via Gillan’s invitation to meet next Monday. I hope this will prove to be more than just a meeting to see whether we are willing to concede. If management meets and proposes nothing more than what they proposed last February, be prepared to support future union activities. In Solidarity, Bro. King [Emphasis added] [ 31 ] On the employer’s side, Ms.

Julie Burke, a labour relations officer with the CBSA was tasked to monitor the union website.

Management became aware of the posting on September 14, 2007 but did not take immediate action. The VSSA negotiations continued between the parties in a meeting held on September 17, 2007 at PIA. On October 29, 2007, more than six weeks afterwards, the applicant was advised by his employer that if the posting was not removed from the union website by October 31, he would be subject to disciplinary action up to and including termination of his employment. [ 32 ] The applicant was also advised that a disciplinary hearing by teleconference was scheduled on October 31, 2007, regarding the posting of this message.

It is worth noting that Mr. Marc Thibodeau’s October 29, 2007 letter to the PSAC’s negotiator, in his capacity as the chief director of Treasury Board Secretariat, also stated that the September 11, 2007 posting was in contravention of subsection 194(1) of the PSLRA and mentioned that the employer would consider filing a complaint with the Board if the related portions of the message were not removed from the website by 5PM on October 31, 2007. [ 33 ] On October 30, 2007, the applicant emailed the webmaster and asked that the posting be removed from the union webpage; the posting was removed the same day.

Prior to the disciplinary hearing, the applicant also sent an email to Mr. Gillan and others, stating that he did not issue a direction to CEUDA members to participate in any activity or refrain from performing any of their duties. He also stated that there was no intent to counsel or procure illegal activity. He noted that he had been requesting a legal opinion on the matter since the imposition of the 6/2 shift schedule. [ 34 ] On October 31, 2007, at the disciplinary hearing, the applicant was asked what the phrase “walk off the job now” meant and he said that he was still waiting for direction from the PSAC.

He said that Mr. Gordon “will give the direction”. He stated that he was not “inciting”. The applicant was not asked about the reference to “future union activities”. However, he testified before the adjudicator that the kind of union activities that were contemplated included letter-writing campaigns, information pickets and getting the families of bargaining unit members involved. Those were not illegal actions. [ 35 ] On November 2, 2007, after the disciplinary hearing, the applicant wrote an email to Mr.

Gillan, other CBSA management representatives and the Minister of Public Safety where he stated that he viewed the employer’s actions as a violation of his rights under the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 [ Charter ] and a “…perceived attack on a fundamental right to communicate with our members by what can only be described as illegal government censorship”. Mr. Gillan replied, setting out the parts of the applicant’s message posted on the website that caused concern. [ 36 ] The grievor replied as follows: It is well within the union’s rights to mobilize members for future activities. The CBSA cannot interfere with how a union prepares for such future activities that the union has the right to decide and manage.

It is our right to maintain control on the administration of our union. … I made it clear that we had no intention of proceeding until such time that we did receive a legal opinion or requested support from the Bargaining Agent. You and your superiors are clearly obsessed with targeting me, shutting down this Local and interfering with this union’s ability to communicate effectively with our members …. Your actions will only escalate current labour conflict within this region.

As long as we don’t issue direction, which we clearly have not, we are well within our right to advise our members whether we are seeking support, who we are seeking support from and on which subject we are seeking said support. …

[Emphasis added] [ 37 ] Later that day, in spite of the applicant’s compliance with CBSA’s request and the explanations offered during the disciplinary hearing (October 31, 2007) and afterwards (November 2, 2007), the employer proceeded to impose a 30 day suspension discipline on the applicant for the website posting. In imposing the disciplinary suspension, Mr.

Gillan [the deputy head] considered that the applicant’s statement amounted to “ counselling or procuring an illegal work stoppage” contrary to subsection 194(1) of the PSLRA , and which constituted “a serious act of misconduct and a contravention of the PSLRA ”. [ 38 ] The applicant was also warned by the deputy head that his “future communications and actions are expected to be in accordance with the provisions of the Values and Ethics Code for the Public Service, the CBSA’s Code of Conduct as well as the legislation, policies and directives underlying them.

You should be aware that failure to adhere to this expectation may result in more severe disciplinary action being taken, up to and including termination of your employment.” Second website posting [ 39 ] On November 3, 2007, a second posting appeared on CEUDA Local 24 website. The posting was addressed to the bargaining unit membership and was purportedly intended to notify union members of the reason of the applicant’s suspension. For purposes of clarity, this second posting is reproduced in its entirety below: By now many of you have heard that I just received another thirty day suspension without pay.

As such, my access to CBSA premises has been restricted until December 14, 2007. What is significant about the discipline is the timing of this suspension, the grounds on which I have been suspended and the fact that this us the third discipline I’ve received since John Gillan became the Regional Director for the GTA in the spring of 2006. On the bright side, over course of the regional VSSA negotiations, senior officials (not all) within this region and Ottawa have finally been exposed.

Each of you have now witnessed the management deception, lies and abuse that continue to plague this organization, impede VSSA negotiations and the resolution of many other regional labour issues. It is the truth that binds us in a common cause to be treated with dignity, respect and not to allow this employer to violate any of our contractual and/or legal rights. I hope you take comfort in knowing that I am well, focused and more determined in protecting our rights than ever before.

The attached correspondence explains the latest discipline which is based on two sentences written in a VSSA update that was posted on our local website. The sentences are “ In the meantime I have been pressing the bargaining agent and CEUDA National for support to walk off the job now.” & “If management meets and proposes nothing more than what they proposed last February, be prepared to support future union activities.” [Emphasis in original] [ 40 ] On November 13, 2007, Mr.

Gillan called the applicant to a disciplinary hearing about the posting of November 3, 2007, given that the controversial portion of the first message that referred to walking off the job was quoted in the second posting. The applicant did not attend the disciplinary hearing, and in the meantime, wrote an email to the Minister of Public Safety, Senior Management of the CBSA, Mr. Gillan and a number of CEUDA representatives where he states that the employer’s representatives “have wrongfully and without lawful authority compelled me to abstain from communicating with CEUDA members as I have a lawful right to do.”

[ 41 ] On November 20, 2007, CBSA terminated the applicant’s employment for cause. According to the termination letter, the reposting of the statements is “a serious act of misconduct” and “the culminating incident” leading the deputy head to immediately terminate the applicant’s employment under the purported authority of paragraph 12(1) (

c) of the FAA . [ 42 ] Mr. Gillan testified at the arbitration that the applicant’s reposting of the sentences that were the subject of the previous discipline constituted a “serious act of misconduct” since the applicant could have explained his discipline in more general language. He also testified that one of the aggravating factors that he considered in imposing termination was the fact that this misconduct was exactly the same misconduct that the applicant had been disciplined for.

He regarded the posting of November 3, 2007 as the “culminating incident” and an attempt by the applicant to build up support within the membership and to pressure the national union leadership to take illegal action. II. GRIEVANCES [ 43 ] On November 20, 2007, the same day he was terminated, the applicant grieved the 30 day suspension imposed by the deputy head on November 2, 2007: November 20, 2007 GRIEVANCES – Against the Thirty Days Suspension Administered November 02, 2007 I grieve the above noted suspension is without merit. I also grieve that my rights as an employee under

Article 19.01 of the Agreement between the Treasury Board and the PSAC have been violated as noted below.

Article 19 of the Agreement between the Treasury Board and the P.S.A.C. reads as follows: 19.01 There shall be no discrimination , interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Alliance , marital status or a conviction for which a pardon has been granted.

On November 2, 2007 I was disciplined as an employee for allegedly counselling or procuring an illegal work stoppage. As I was disciplined for an activity in the Alliance for which I would not be disciplined if I were not a representative of the Alliance , I have been treated differently from other employees and discriminated against. This discipline contravenes the spirit of

Article 19.01 and must be immediately rescinded. Not only do I refute Mr. Gillan’s allegation that I was counselling or procuring the declaration or authorization of a strike, I remind CBSA management that there is no language within the Agreement or P.S.L.R.A. that prohibits an employee from counselling or procuring an illegal work stoppage. The Agreement prohibits employees from participation in an illegal strike only.

For this reason I believe the employer lacks the authority to discipline employees in the absence of any identifiable employee misconduct and as such, I should not have been disciplined as an employee for an alleged prohibition under the P.S.L.R.A. that is only applicable to employee representatives. As an employee, I should be protected from alleged contraventions only applicable to union representatives, which should be decided by the Public Service Labour Relations Board (P.S.L.R.B.) especially when said union activities occur outside the workplace and not on company time.

Section 194 of the P.S.L.R.A. does not allow an employer to determine whether or not such an offence has been committed, does not authorize the employer to establish penalties beyond what has been established in the legislation or allow an employer to proceed and administer discipline against an employee representative for perceived contraventions under the P.S.L.R.A.

The employer has no more authority to discipline for alleged contraventions under the P.S.L.R.A. than it does the Criminal Code of Canada . If employers are given the jurisdiction and permitted to decide the innocence or guilt and fate of union representatives that are considered as the employer’s adversarial counterparts, and are allowed to establish the quantum of discipline to be imposed on these adversarial counterparts for perceived contraventions under the Act, employer interference and abuse will flourish.

Employees will be discouraged from volunteering as union representatives, continue to be intimidated and not be able to properly fulfill their obligations as union representatives thus causing irreparable harm to both the labour movement and the daily administration of the union. In essence, as long as the employer has the unfettered right to control employee representatives to this extent, no employee representative is safe regardless of what protections or recourse is stated within the Agreement or Public Service Labour Relations Act for obvious reasons.

This employer’s practice of circumventing recourse under the Act and rendering discipline has further violated my right to due process and the right to be judged by an independent third party. In this particular instance, John Gillan proceeded with blatant disregard to the stipulated recourse under the Act even though the Treasury Board had already initiated the threat of appropriate redress via correspondence to the bargaining agent in the letter dated October 29, 2007.

As such, there was no need for senior management officials within the Canada Border Services Agency to initiate an additional internal disciplinary process for the same alleged contravention that was already being addressed between the Treasury Board and Bargaining Agent or prior to the outcome of the other process.

I maintain that the comments in my reply to a CEUDA member that was posted on the CEUDA website outside of work cannot be considered as procuring illegal strike activity as it is clear and without question that I was doing nothing more than informing CEUDA members what the union was doing on their behalf when I stated that I was pressing the bargaining agent to support a work refusal. At no time did I request, encourage or pressure CEUDA members to support any specific activity on any given day. In fact, I mentioned future activities which cover all lawful union activities.

It is only because of my activity in the Alliance that I was disciplined for the alleged contravention of inciting illegal strike activity, for if I were not a volunteer union representative I would enjoy the same freedoms and protection under the Agreement as other employees that are not union representatives that would not be disciplined for such an allegation. Once again, it is for this reason that I allege I am being treated differently from other employees that are not volunteer union representatives and that this different treatment under employee status constitutes discrimination.

In closing, I perceive this latest discipline by the CBSA as just one more blatant act of abuse, harassment, intimidation and interference of the administration of the union and in particular the union’s right to communicate with its membership. Corrective Action To be discussed during mediation with the employer or at the commencement of the Adjudication hearing. Respectfully submitted and authorized by, John King President

Toronto District Branch CEUDA Local 24 [Emphasis in original] [ 44 ] On November 22, 2007, two days after the filing of the above grievance, a joint letter was addressed by the national presidents of the PSAC and CEUDA to the president of CBSA. It reads as follows: November 22, 2007 Alain Jolicoeur President Canada Border Services Agency 191 Laurier West Ottawa , Ontario K1A 0L8 Dear Mr.

Jolicoeur: We are in receipt of a copy of a letter dated November 20, 2007 from John Gillan, Regional Director General, CBSA Greater Toronto Area (GTA) Region to PSAC/CEUDA Local 024 Toronto District Branch President, John King, terminating his employment. The PSAC and CEUDA hold firmly to the position that employees acting as union officials have a very broad ability to speak freely, and to disseminate information to and within the membership without fear of reprisal.

This position has, on many occasions, been supported and reinforced by both labour boards and arbitrators when employers attempt to stifle free speech – whether they do it through disciplinary measures or otherwise. For whatever reason, the CBSA’s actions, as outlined in John Gillan’s November 20 th letter, are a clear attempt to curtail the free speech of a PSAC/CEUDA elected official. As such, it is an unconscionable affront to our union and the members we are privileged to represent.

In addition to the personal impact that the CBSA decision will have on John King, it has a significant impact on our members who work for the CBSA, particularly in the GTA. As you know, the PSAC is in negotiations with Treasury Board for the FB Group, for a first collective agreement. Issues, both directly and indirectly related to the bargaining process have strained our relationship, particularly in some locations, including Pearson Airport.

On its face, the CBSA decision will erode that relationship further unless the CBSA moves quickly to resolve the VSSA issue and recognize the right of union representatives to freely communicate with their members. We urgently request that John King be reinstated without delay. Sincerely, John Gordon Ron Moran National President National President PSAC CEUDA

[ 45 ] On December 14, 2007, the applicant grieved his termination of employment through the filing of a second grievance. On December 20, 2007, he provided details of his grievance and the correction action requested (reinstatement to his position as a border services officer and compensation for his losses).

In the details of his grievance, the applicant explained the purpose of his posting on November 3, 2007 as follows: …I was simply clarifying the reason for my thirty (30) days of suspension as rumours and false accusations were being spread about me in the workplace. [ 46 ] Failing satisfactory resolution between management and the union, the grievances were referred to adjudication pursuant to

section 209 of the PSLRA . III. ARBITRAL DECISION [ 47 ] The matter was decided by Mr. Ian R. Mackenzie, the adjudicator designed by the Board pursuant to paragraph 223(2) (

d) of the PSLRA .

The latter conducted a hearing in May and June 2010 and considered the written submissions filed by the parties during the autumn 2010. [ 48 ] Before the adjudicator, the deputy head argued that the applicant either knew or ought to have known that the union was not in a legal strike position, and thus, the September 11, 2007 message addressed to the bargaining unit membership violated subsection 194(1) of the PSLRA for: • counselling and procuring a declaration or authorization of a strike by CEUDA and the PSAC of whom the applicant was by his own admission seeking “ support to walk off the job” ; and • counselling and procuring employees to engage in such a strike if need be. [ 49 ] The deputy head also contended that both the disciplinary suspension and the termination were appropriate measures in the circumstances given the seriousness of the offence, the applicant’s position of leadership and influence, as well as his prior disciplinary record, and absence of remorse. [ 50 ] At this point, it is important to note that in the three years preceding the grievances of November and December 2007, the applicant had discipline imposed on him on three other occasions and which were still on his record for progressive discipline purposes at the time of his 30 day suspension and termination of employment.

However, subsequently, these disciplinary penalties were either overturned or reduced from 80 days to 15 days: • A first 30 day suspension that was imposed on the applicant on July 6, 2004 as a result of a letter that he had written to the Secretary of the United States Department of Homeland Security about issues related to security classification requirements for employees in the Canadian border administration was subsequently overturned at adjudication on August 8, 2008: King v Treasury Board (CBSA), 2008 PSLRB 64 .

On September 16, 2009, the Federal Court dismissed the application for judicial review brought by the employer against the arbitral award: Canada (Attorney General of Canada ) v King , 2009 FC 922 . • A second 30 day suspension imposed on the applicant on July 19, 2006 was reduced to five days by way of settlement on April 23, 2009. • A further 20 day suspension imposed on him on November 2, 2006 for having sent an email containing allegations against the deputy head to the Minister of Public Safety and the media, was also reduced to 10 days at adjudication on February 23, 2010: King v Deputy Head (Canada Border Services Agency) , 2010 PSLRB 31 . [ 51 ] The deputy head submitted to the adjudicator that the fact that the quantum of discipline appearing on the applicant’s record had been reduced between in 2009 and 2010 was not determinative.

In the alternative, the deputy head argued that if the termination grievance was allowed the appropriate remedy would be pay in lieu of reinstatement. [ 52 ] The applicant maintained that there is no statutory prohibition of merely discussing the possibility or the legality of future strike action or other means of pressure during negotiations with the employer (e.g. concerted refusal to report for any shift other than a standard shift in

Article 25.17 of the collective agreement). The applicant submitted that his conduct did not come within the meaning of the quasi-criminal prohibition against counselling or procuring of an unlawful strike under the PSLRA , but was merely intended, first, to inform the membership that he was pressing the bargaining agent for advice on the union’s strike position, and later to keep the members updated about the discipline imposed on him. In disciplining the applicant, the employer violated the non-discrimination provision of the collective agreement (Article 19.01) and the non-interference provision of the PSLRA (

section 186 ).

[ 53 ] The applicant submitted that the parties specifically excluded in the collective agreement the option of disciplining an employee who did not participate in an illegal strike (Article 16.01) and that the deputy head’s authority to discipline pursuant to paragraph 12(1) (

c) of the FAA did not extend to the counselling or procuring of an illegal strike. The applicant contended that the employer’s authority in respect of alleged violations of subsection 194(1) of the PSLRA by a union officer is limited to initiating criminal prosecution. [ 54 ] The applicant further submitted that the vast majority of arbitral jurisprudence upholding discipline of union officers concern cases that involved conduct which led to actual work stoppages and not mere discussions of work stoppage that never occurred.

The applicant argued that even if no such requirement exists in view of the wording of subsection 194(1) of the PSLRA , the deputy head still has the burden to adduce objective evidence that the union officer intended his or her actions to result in illegal strike activity.

Here, there was no intent to counsel or procure an illegal strike on the applicant’s part. [ 55 ] In the alternative, the applicant argued that the discipline imposed on him should be set aside in favour of lesser penalties so as to reflect the reduction of his prior disciplinary record from 80 to 15 days (excluding the challenged 30 day suspension prior termination) as a result of settlement or subsequent quashing and reducing of discipline by the Board.

He also submitted that his immediate compliance with the employer’s direction to remove the postings from the union website should be considered as a mitigating factor. [ 56 ] O n November 29, 2010, after having reviewed the evidence and considered the arguments made by the applicant, the adjudicator dismissed the grievance.

In reaching this decision, he proceeds to answer the three following questions: • Did the deputy head have the authority under the collective agreement and/or the law to discipline the applicant? • Did the applicant “counsel” or “procure” an illegal work stoppage contrary to subsection 194(1) of the PSLRA ? • Was the discipline imposed appropriate in the circumstances of the case? [ 57 ] In answering each of the three questions above in the affirmative, the adjudicator preferred to endorse the employer’s broader reading of the evidence and the law than the applicant’s narrower reading of same.

The impugned statements read in their context amount to counselling or procuring an illegal strike, and in repeating same after his suspension, the applicant has shown a degree of insubordination and disrespect that warrants his termination. In other words, the applicant had crossed the boundaries of legitimate union expression by actively seeking, even after a negative legal opinion, the union’s support for a concerted refusal to work on the 6/2 schedule, and by attempting to rally the customs inspectors to such action. IV.

STANDARD OF REVIEW [ 58 ] As a prefatory remark, the Court would like to emphasize that the determination of the standard of review proves to be determinative in this case since the outcome of the present application may well be different whether the

interpretation of

section 194 of the PSLRA chosen by the adjudicator must be correct in law or simply reasonable. The differences flowing from such characterization are well summarized by Justice Iacobucci in Law Society of New Brunswick v Ryan , 2003 SCC 20 at para 51 : Unlike a review for correctness, there will often be no single right answer to the questions that are under review against the standard of reasonableness. For example, when a decision must be taken according to a set of objectives that exist in tension with each other, there may be no particular trade-off that is superior to all others.

Even if there could be, notionally, a single best answer, it is not the court's role to seek this out when deciding if the decision was unreasonable. [ 59 ] The reasonableness standard is already well known. In Dunsmuir v New Brunswick , 2008 SCC 9 at para 47 [ Dunsmuir ] , the Supreme Court of Canada stated that a court conducting a review for reasonableness inquires into the “qualities” that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.

In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 60 ] That said, it is important to note that the reasonableness standard should not be seen as a plenary dispensation for decisions of expert decision-makers. Even if an

interpretation of the law made by a specialized tribunal has to be reviewed on a reasonableness standard, it remains that the

interpretation of the law is always contextual. The law does not operate in a vacuum and the tribunal is always required to take into account the legal context in which it is called to apply the law ( Dunsmuir , above, at para 74 ).

[ 61 ] On the other hand, the Supreme Court re affirmed in Dunsmuir , above, at para 50 , that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law which are of central importance to the legal system and outside the specialized expertise of the tribunal. This promotes just decisions and avoids inconsistent and unauthorized application of law. When applying the correctness standard, a reviewing court will not show deference to the decision-maker’s reasoning process; it will rather undertake its own analysis of the question.

The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct. [ 62 ] With some hesitation I must say, but being legally bound by the most recent indications of the Federal Court of Appeal and the Supreme Court of Canada, I conclude below that the reasonableness standard applies to all questions of fact and law decided by the adjudicator.

However, prior to even examining the differing positions advocated by the parties in this case, it is useful to start by a review of the scheme of the PSLRA . Public Service Labour Relations Act [ 63 ] The PSLRA is a comprehensive legislation dealing with labour relations (Part 1), grievances (Part 2), occupational health and safety (Part 3) and other matters (Part 4). Of interest in this case, is

Part 1 of the PSLRA which regulates labour relations ( sections 4 to 205 ). In this respect, the Board is the specialized tribunal designed by Parliament to deal with labour relations issues (section 12). T he adjudication services provided by the Board consist of the hearing of applications and complaints made under this

Part 1, the referral of grievances to adjudication in accordance with

Part 2 and the hearing of matters brought before the Board under

Part 3. The Board enjoys large inquiry powers under

section 40 of the PSLRA . Moreover, according to subsection 51(1) of the PSLRA , subject to

Part 1, every order or decision of the Board is final and may not be questioned or reviewed in any court, except in accordance with the Federal Courts Act , RSC 1985, c F-7 [ FCA ], on the grounds referred to in paragraph 18.1(4)( a ), (

b) or (

e) of that Act. [ 64 ]

Part 2 of the PSLRA regulates grievances ( sections 206 to 238 ). There are three types of grievance: individual grievances (sections 208 to 214); group grievances (sections 215 to 219); and policy grievances (sections 220 to 222). Sections 208 to 214 deal with individuals grievances. Pursuant to subsection 208(1) an employee is entitled to present an individual grievance if he or she feels aggrieved: • by the

interpretation or application, in respect of the employee, of a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or a provision of a collective agreement or an arbitral award; or • as a result of any occurrence or matter affecting his or her terms and conditions of employment. [ 65 ] Moreover, pursuant to paragraphs 209(1) (

a) and (

b) of the PSLRA , an employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to: • the

interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award; or • a disciplinary action resulting in termination, demotion, suspension or financial penalty. [ 66 ] In the former case (interpretation or application of the collective agreement), the employee must obtain the approval of his or her bargaining agent to represent him or her in the adjudication proceedings (subsection 209(2)).

In the case at bar, the applicant who has the support of the bargaining agent has challenged not only the disciplinary measures imposed by the deputy head but has also alleged a breach of the non-discrimination provision of the collective agreement (Article 19.01). [ 67 ] A grievance may be heard and decided by a board of adjudication or a single adjudicator as provided by subsections 223(1) and (2), and their appointment, as the case may be, is made by the Board:

(1) A party who refers a grievance to adjudication must, in accordance with the regulations, give notice of the reference to the Board and specify in the notice whether an adjudicator is named in any applicable collective agreement or has otherwise been selected by the parties and, if no adjudicator is so named or has been selected, whether the party requests the establishment of a board of adjudication.

(2) On receipt of the notice by the Board, the Chairperson must (

a) if the grievance is one arising out of a collective agreement and an adjudicator is named in the agreement, refer the matter to the adjudicator; (

b) if the parties have selected an adjudicator, refer the matter to the adjudicator; (

c) if a board of adjudication has been requested and the other party has not objected in the time provided for in the regulations, establish the board and refer the matter to it; and (

d) in any other case, refer the matter to an adjudicator designated by the Chairperson from amongst the members of the Board . 223.

(1) La

partie qui a renvoyé un grief à l’arbitrage en avise la Commission en conformité avec les règlements. Elle précise dans son avis si un arbitre de grief particulier est déjà désigné dans la convention collective applicable ou a été autrement choisi par les parties, ou, à défaut, si elle demande l’établissement d’un conseil d’arbitrage de grief.

(2) Sur réception de l’avis par la Commission, le président :

a) soit renvoie l’affaire à l’arbitre de grief désigné dans la convention collective au

titre de laquelle le grief est présenté;

b) soit, dans le cas où les parties ont choisi un arbitre de grief, renvoie l’affaire à celui-ci;

c) soit institue, sur demande d’une

partie et à condition que l’autre ne s’y oppose pas dans le délai éventuellement fixé par règlement, un conseil d’arbitrage de grief auquel il renvoie le grief;

d) soit, dans tout autre cas, renvoie le grief à un arbitre de grief qu’il choisit parmi les membres de la Commission . [Emphasis added ] [ 68 ] Paragraph 226(1) (

g) of the PSLRA specifically provides that an adjudicator may, in relation to any matter referred to adjudication, interpret and apply the CHRA , and any other Act of Parliament relating to employment matters , other than the provisions of the CHRA related to the right to equal pay for work of equal value, whether or not there is a conflict between the Act being interpreted and applied and the collective agreement [Emphasis added].

Moreover, a s provided by subsection 228(2) of the PSLRA , after considering the grievance, the adjudicator must render a decision and make the order that he or she considers appropriate in the circumstances. [ 69 ] That said, the decision rendered by the adjudicator is protected by a privative clause. In effect,

section 233 of the PSLRA reads as follows:

(1) Every decision of an adjudicator is final and may not be questioned or reviewed in any court.

(2) No order may be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari , prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any of the adjudicator’s proceedings under this Part. 233.

(1) La décision de l’arbitre de grief est définitive et ne peut être ni contestée ni révisée par voie judiciaire.

(2) Il n’est admis aucun recours ni aucune décision judiciaire — notamment par voie d’injonction, de certiorari , de prohibition ou de quo warranto — visant à contester, réviser, empêcher ou limiter l’action de l’arbitre de grief exercée dans le cadre de la présente partie. [ 70 ] The distinction, if any, between the privative clauses protecting the adjudicator (section 233) on one hand and the Board (section 51) on the other hand, would be that in the case of the Board, it purportedly includes “the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction”. [ 71 ] As explained below, the parties do not agree on the applicable standard of review in this case.

They have both made thorough supplementary written submissions and oral submissions on this delicate issue. Applicant’s position [ 72 ] The applicant contends that this case does not squarely fall either under the realm of the well-established jurisprudence that recognizes that deference is owned on judicial review to the adjudicator’s

interpretation and application of the collective agreement and the adjudicator’s regard for the material before him ( Nitschmann v Canada (Treasury Board) , 2008 FC 1194 at paras 8-10 , [2008] FCJ 1511 ; Burden v Canada (Attorney General) , 2011 FC 251 at para 14 , [2011] FCJ 365 ), or with respect to other matters generally referred to adjudication in application of

section 209 of the PSLRA ( Boudreau v Canada (Attorney General) , 2011 FC 868 at para 15 , [2011] FCJ 1245 ). [ 73 ] The applicant acknowledges that a measure of deference is owed to adjudicators confronting questions of mixed fact and law that fall within the purview of their specific expertise. However, the applicant takes issue with the adjudicator’s

interpretation and application of subsection 194(1) of the PSLRA and submits that the present case is not a simple grievance relating exclusively to the

interpretation and application of the collective agreement, but a grievance against the termination of the applicant for conduct in the course of his activities as a full-time union representative for an alleged violation of subsection 194(1) of the PSLRA , a quasi-criminal unlawful strike provision under

Part I of the PSLRA . [ 74 ] Essentially, the applicant submits that this case engages issues going beyond the adjudicator’s “home statute” and particular expertise, as it calls upon broader labour relations principles addressed in

Part I of the PSLRA , including the quasi-criminal provisions in sections 194 , 196 and 203 of the PSLRA , as well as the scope of freedoms recognized by the Charter and the PSLRA (e.g. the non- interference provision). In the applicant’s submission, the expertise of the adjudicator is limited to matters directly related to grievance adjudication under

Part II of the PSLRA – within the confines of which fall most grievance adjudications – and does not extend to the

interpretation of the quasi-criminal unlawful strike provisions of

Part I of the PSLRA . This view is purportedly in harmony with the scheme of the PSLRA which contemplates the existence distinct decisions makers i.e. the Board’s members sitting either in application of

Part II of the PSLRA (as adjudicators) or in respect of labour relations matters under

Part I of the PSLRA (as the Board). The applicant suggests that the adjudicator’s powers under

Part II of the PSLRA , as expressly set out in

section 226 of the PSLRA , differ from the Board’s broad powers under

section 40 of the PSLRA . Moreover, the applicant submits that the privative clause applicable to the Board as defined in

section 51 of the PSLRA is stronger than the one applicable to adjudicators under

section 223 of the PSLRA . [ 75 ] According to the applicant, the Supreme Court’s recent judgment in Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals , 2011 SCC 59 , [2011] ACS 59 [ Nor-Man Regional Health Authority ], in which it was decided that an arbitrator’s application of the common law principle imposing an estoppel on the union’s claim for redress warranted deference on judicial review, is distinguishable from the particular facts of this case. The applicant submits that, first, the powers and jurisdiction of arbitrators in the private labour relations context are larger than those of adjudicators under

Part II of the PSLRA , and second, the latitude accorded to labour arbitrators in adapting and applying general legal principles such as estoppel should not similarly apply in this case which engages specific provisions of criminal liability, equally applicable by courts.

[76] Thus, given the focus in the adjudicator’s ruling on a specific quasi-criminal provision which is outside the ordinary expertiseof adjudicators, the applicant submits that the jurisprudence following Dunsmuir points to a less deferential standard. The applicant notesthat in Smith v Alliance Pipeline Ltd, 2011 SCC 7, [2011] 1 SCR 160 [Smith], Justice Deschamps, in concurring reasons, rejected theview that a tribunal’s

interpretation of its enabling statute automatically calls for a deferential standard of review, suggesting instead thatdeference to an administrative tribunal should be shown “only when it is in some way more expert than the court and the question underconsideration is one that falls within the scope of its greater expertise” (para 99). [77] The applicant also refers to the concurring reasons of Justices Binnie and Deschamps in the Supreme Court’s even morerecent judgment in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at paras 82-83,[2011] SCJ 61 [Alberta Teachers’ Association], where Justice Binnie noted: It may be recalled that the willingness of the courts to defer to administrative tribunals on questions of the

interpretation of their "homestatutes" originated in the context of elaborate statutory schemes such as labour relations legislation. In such cases, the tribunal memberswere not only better versed in the practicalities of how the scheme could and did operate, but in many cases, the legislature tried to curbthe enthusiasm of the courts to intervene by inserting explicit privative clauses. Over the years, acceptance of judicial deference greweven on questions of law (see e.g. Pezim v.

British Columbia (Superintendent of Brokers), (SCC), [1994] 2 S.C.R. 557),but never to the point of presuming, as Rothstein J. does, that whenever the tribunal is interpreting its "home statute" or statutes, it isentitled to deference. It is not enough, it seems to me, to say that the tribunal has selected one from a number of

interpretations of aparticular provision that the provisions can reasonably bear, no matter how fundamentally the tribunal's legal opinion affects the rights ofthe parties who appear before it. On issues of procedural fairness or natural justice, for example, the courts should not defer to atribunal's view of the extent to which its "home statute" permits it to proceed in what the courts conclude is an unfair manner. The middle ground between Cromwell J. and Rothstein J., it seems to me, lies in the more nuanced approach recently adopted by theCourt in Canada (Canadian Human Rights Commission) v.

Canada (Attorney General), 2011 SCC 53 ("CHRC"), where it was said that"if the issue relates to the

interpretation and application of its own statute, is within its expertise and does not raise issues of general legalimportance, the standard of reasonableness will generally apply and the Tribunal will be entitled to deference" (para. 24 (emphasisadded)). Rothstein J. puts aside the limiting qualifications in this passage when he comes to formulating his presumption, which istriggered entirely by the location of the controversy in the "home statute". [Emphasis added] [78] In sum, the applicant submits that the adjudicator’s task in this case was to render a decision in respect of a grievance referredto adjudication in application of

section 209 of the PSLRA, in accordance with the powers conferred to him under

section 226 of thePSLRA. True, the circumstances of this case required the adjudicator to consider and interpret

section 194 of the PSLRA, but this was notthe end of the matter. The application of

section 194 of the PSLRA to a union representative addressing himself to the employees by wayof a posting on the union web site raises an issue of general importance, which calls for the correctness standard.

The applicant refersnotably to Ontario Flue-Cured Tobacco Growers' Marketing Board v Stetler, (ON SCDC), where the OntarioDivisional Court decided that a decision of the Ontario Agriculture, Food and Rural Affairs Tribunal was reviewable against the standardof correctness as it involved the adjudication of quasi-criminal allegations of breaches of a regulation with penal consequences whichexceeded the specialized nature of the decision-makers. Respondent’s position [79] The respondent submits that the issue of the

interpretation of subsection 194(1) of the PSLRA is inextricably tied to thefindings of fact made by the adjudicator and should thus be reviewed under the deferential standard of reasonableness. In therespondent’s submission, the adjudicator’s task in this case was not to forge new jurisprudence on the

interpretation of this provision butsimply to apply an already established jurisprudence in labour law to the facts before him. [80] In addressing the applicant’s allegation that the adjudicator’s particular expertise is limited to

Part II of the PSLRA, therespondent argues that the Federal Court of Appeal’s decision in Canada (Attorney General) v Amos, 2011 FCA 38 at para 30, [2011]FCJ 159 [Amos], implies that an adjudicator has the same level of expertise in labour matters and in the

interpretation of the PSLRA asdoes the Board. With this respect, the respondent notes Justice Trudel’s reference to the “specialized jurisdiction” of adjudicators underthe PSLRA: [T]he broader aim of the Act is to provide an expert regime for the determination of labour disputes, and to facilitate their resolutionexpeditiously, inexpensively, and with little formality (ibidem at paragraph 68):

68 The nature of the regime also favours the standard of reasonableness. This Court has often recognized the relative expertise of labourarbitrators in the

interpretation of collective agreements, and counselled that the review of their decisions should be approached withdeference: CUPE, at pp. 235-36; Canada Safeway Ltd. v. RWDSU, Local 454, (SCC), [1998] 1 S.C.R. 1079, at para.58; Voice Construction, 2004 SCC 23 , [2004] 1 S.C.R. 609, at para. 22. The adjudicator in this case was, in fact, interpretinghis enabling statute. Although the adjudicator was appointed on an ad hoc basis, he was selected by the mutual agreement of the partiesand, at an institutional level, adjudicators acting under the PSLRA can be presumed to hold relative expertise in the

interpretation of thelegislation that gives them their mandate, as well as related legislation that they might often encounter in the course of their functions.See Alberta Union of Provincial Employees v. Lethbridge Community College. This factor also suggests a reasonableness standard ofreview. [Emphasis added] [81] The respondent also submits that the majority’s reasons in Smith, above, at para 37, equally emphasizes that an administrativedecision-maker’s

interpretation of its home statute, absent the categories identified in Dunsmuir, will attract a standard ofreasonableness: [A] tribunal's

interpretation of its home statute, the issue here, normally attracts the standard of reasonableness (Dunsmuir, at para. 54),except where the question raised is constitutional, of central importance to the legal system, or where it demarcates the tribunal'sauthority from that of another specialized tribunal… [Emphasis added] [82] Moreover, the respondent maintains that in accordance with the Supreme Court’s recent ruling in Nor-Man Regional HealthAuthority, above, adjudicators dealing with disciplinary matters should be allowed to develop their corpus of jurisprudence dealing withsubsection 194(1) of the PSLRA.

In fact, at para 45, the Court held that : [L]abour arbitrators are authorized by their broad statutory and contractual mandates -- and well equipped by their expertise -- to adaptthe legal and equitable doctrines they find relevant within the contained sphere of arbitral creativity.

To this end, they may properlydevelop doctrines and fashion remedies appropriate in their field, drawing inspiration from general legal principles, the objectives andpurposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrixof the grievances of which they are seized. [83] In addition, the respondent argues that there is no basis for suggesting that an adjudicator interpreting and applying subsection194(1) of the PSLRA is interpreting anything other than his home statute.

The judicial response to the applicant’s suggestion can befound in Amos, above at para 32, where Federal Court of Appeal stated that “the adjudicator is an independent decision-maker withspecialized jurisdiction in labour relations within the federal public service” [Emphasis added]. The respondent also relies on an earlierdecision of this Court in Ryan v Canada (Attorney General), 2005 FC 65 at para 14, [2005] FCJ 110, in which Justice Von Finckensteinstated that the Public Service Staff Relations Board (predecessor of the Board) “has unquestioned expertise.

Its members sit either asadjudicators or as the Board, enjoying all the powers of the PSSRB. This institutional expertise militates strongly in favour of deference”. [84] Furthermore, in the respondent’s submission, the applicant’s reliance of unfair labour practice provisions of the PSLRA isunfounded because the concept of unfair labour practice is already included in the collective agreement, the

interpretation andapplication of which falls unquestionably under the adjudicator’s expertise. Moreover, the fact that subsection 194(1) of the PSLRA mayequally form the basis of a criminal prosecution pursuant to

section 205 of the PSLRA should not affect the judicial deference generallydue to adjudicators’ application and

interpretation of provisions from their home statute, and this for the following two reasons. [85] First, the respondent argues that this issue has previously been addressed in adjudicator’s Abott’s decision in Beaupré andOldale, above, at page 15, where he noted that either of the criminal or the disciplinary courses of action can be pursued against suchinfractions: As to the asserted obligation of the employer to prosecute the grievors under

section 104 of the Public Service Staff Relations Act, I canfind no support for such an obligation in the general law or in the pertinent collective agreement. The provisions of the Act reflect theduty owed by the individuals and employee organizations to the State and to the public; the determination of what cases of allegedinfractions are to be prosecuted is out of the hands of the employer acting as the employer; the same conduct may constitute a breach ofthe general law and well may justify a punitive reaction by the employer (theft from the employer is an example). The employer is notbound to pursue one course of action, prosecution, instead of the other…

[ 86 ] Second, the respondent submits, by way of analogy, that appeals officers reviewing health and safety officers’ directions under

Part II of the Canada Labour Code (occupational health and safety) are awarded deference although the legislation prescribes that a violation of

Part II can either result in a direction being issued by a health and safety officer, or be dealt with by way of criminal prosecution. The respondent submits that the Federal Court of Appeal in Martin v Canada (Attorney General) , 2005 FCA 156 at para 17 , [2005] FCJ 752 , recognized appeals officers’ ability to interpret new questions of law arising under their home statute in order to establish their own corpus of jurisprudence having precedential value for future decision-making.

The respondent maintains that a similar approach should apply to decisions of adjudicators dealing with disciplinary cases. [ 87 ] In sum, the respondent maintains that neither the issues of union expression and the broader labour relations principles in this case, nor the quasi-criminal nature of subsection 194(1) of the PSLRA should affect the jurisprudential characterization of adjudicators as experts in the labour relations within the federal public service. Determination [ 88 ] As a starting point, it must be remembered that pursuant to paragraphs 18.1(4) (

c) and (

d) of the FCA , the Federal Court may allow a judicial review application if it is satisfied that the federal board, commission or other tribunal has “erred in law…whether or not the error appears on the face of the record” or based its decision or order “on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it”. [ 89 ] As far as errors of fact are concerned, it is recognized that paragraph 18.1(4) (

d) of the FCA “does provide legislative guidance as to “the degree of deference” owed to the [board, commission or other tribunal] findings of fact”, as stated by Justice Binnie in the majority opinion of the Supreme Court of Canada in Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 , [2009] 1 SCR 339 at para 3 [ Khosa ] . In this respect, it is not challenged that a “perverse” or “capricious” finding of fact will render the whole decision of the reviewed tribunal “unreasonable” if it is determinative. [ 90 ] Since paragraph 18.1(4)(

c) does not use deferential language as in paragraph 18.1(4) (

d) of the FCA , it had been advocated with respect to an “error of law” that, “the necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context”. However, this minority view notably endorsed by Justice Rothstein has been dismissed by the majority of the Supreme Court in Khosa .

In sum, the nature of the question is not necessarily determinative, deference being generally given to issues of law coming within the ambit of the reviewed tribunal mandate and specialized expertise ( Dunsmuir and Khosa , above). [ 91 ] As a matter of principle, it would only be in case of an appeal that a person to whom the law applies or is susceptible to apply will know for sure whether the law in question prohibits or does not prohibit a certain behaviour.

If there is no appeal, the fact that the administrative tribunal has misinterpreted the law will not be determinative if the matter is to be reviewed on the reasonableness standard and the chosen legal

interpretation is one of the many reasonable options opened to the tribunal. [ 92 ] The legal explanation for allowing two deferring

interpretations of the law, if reasonable, to stand is simply that courts must respect the legislator’s intention that such types of administrative decisions, which are protected by a privative clause, be not reviewed unless the tribunal has acted without or beyond its jurisdiction.

This may sound strange to persons who are not familiar with judicial review and its subtleties, and I find it worthwhile to quote what late professor Chaïm Perelman (1912-1984) was writing in a text entitled “What the philosopher may learn from the study of law”, reproduced in annex to his work Justice , published in 1967 (Random House, New York) at page 94: The diversity of laws is proof of our ignorance of true justice. That which conforms to reason cannot be just here and unjust there, just today and unjust tomorrow, just for one and unjust for another.

That which is just in reason should, like that which is true, be so universally. Disagreement is a sign of imperfection, of a lack of rationality. If two

interpretations of the same text are reasonably possible, it is because the law is ambiguous, therefore imperfect. If the law is clear, then at least one of the two interpreters disputes in bad faith. In any case, disagreement is a scandal, due either to the imperfection of the legislator or to the deceptive subtlety of the lawyers. The innate sense of justice, which each equitable judge certainly possesses, should permit the rapid reestablishment of correct order. [ 93 ] That said, professor Perelman goes on at page 96 to provide a philosophical answer to such apparent injustice or human

imperfection by telling this short anecdote: The Jewish tradition, which never sought to conceive law on a scientific model, offers a significant story in this connection. In the Talmud two schools of biblical

interpretation are in constant opposition, the school of Hillel and that of Shammai. Rabbi Abba relates that, bothered by these contradictory

interpretations of the sacred texts, Rabbi Samuel addresses himself to heaven in order to know who speaks the truth. A voice from above answers him that these two theses both expressed the word of the Living God. The lesson of this story is clear: Two opposing

interpretations can be equally respectable, and it is not necessary to condemn as unreasonable at least one of the interpreters. In fact, we admit that two reasonable and honest men can disagree on a determined question and thus judge differently.

The situation is even considered so normal, both in legislative assemblies and in tribunals that have several judges, that decisions made unanimously are esteemed exceptional; and it is normal, moreover, to provide for procedures permitting the reaching of a decision even when opposing opinions persist. [ 94 ] Since I have to choose between one of two standards of review, correctness or reasonableness, knowing that in so choosing, if I erred, an appellate court will correct any such error of law, not without a certain hesitation, it appears to the Court today that the respondent’s position is more in line with the current case law and the views recently expressed by the Supreme Court of Canada (a majority of judges) and the Federal Court of Appeal.

It is sufficient to state here that I substantially endorse the respondent’s reasoning above, and that I feel bound by all these precedents ( Nor-Man Regional Health Authority , Smith , Alberta Teachers’ Association and Amos , above). That said, I will make below a number of supplementary observations. [ 95 ] As explained in Dunsmuir , above, at para 62 , the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.

Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [ 96 ] The Supreme Court has indicated in Dunsmuir , above, at paras 51 and 53 , that questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while two particular types of legal issues (jurisdictional and central to the legal system) attract a standard of correctness.

Other legal issues, however, will attract the more deferential standard of reasonableness in the majority of cases. This is generally the case where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context: Toronto (City) v CUPE, Local 79 , 2003 SCC 63 , at para 72 . Adjudication in labour law remains a good example of the relevance of this approach.

In this field, the reviewing courts have given great deference to an adjudicator’s decision to uphold or to set aside discipline which must be allowed to stand unless they are found to be unreasonable. [ 97 ] It is interesting to note that Dunsmuir comes from the labour relations sector. In the case of Dunsmuir , an adjudicator had been appointed to hear the grievance made by the appellant who was challenging his termination under the Public Service Labour Relations Act , RSNB 1973, c P-25. A preliminary issue of statutory

interpretation had arose as to whether, where dismissal was with notice or pay in lieu thereof, the adjudicator was authorized to determine the reasons underlying the province’s decision to terminate.

The adjudicator held that the referential incorporation of subsection 97(2.1) of the former Act into subsection 100.1(5) of that Act meant that he could determine whether the appellant had been discharged or otherwise disciplined for cause. [ 98 ] As mentioned by the Supreme Court in Dunsmuir , above, at para 55 , a consideration of the following factors will lead to the conclusion that the decision maker should be given deference and a standard of reasonableness should be applied: • A privative clause: t

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