PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA Applicant v. CANADIAN FOOD INSPECTION AGENCY, 2012 FCA 228

Date: 20120904 Docket: A-117-11 Citation: 2012 FCA 228 CORAM: NOËL J.A. SHARLOW J.A. STRATAS J.A. BETWEEN: PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA Applicant and CANADIAN FOOD INSPECTION AGENCY Respondent Heard at Ottawa, Ontario, on September 4, 2012. Judgment delivered from the Bench at Ottawa, Ontario, on September 4, 2012. REASONS FOR JUDGMENT OF THE COURT BY: STRATAS J.A. Date: 20120904 Docket: A-117-11 Citation: 2012 FCA 228 CORAM: NOËL J.A. SHARLOW J.A. STRATAS J.A. BETWEEN: PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA Applicant and CANADIAN FOOD INSPECTION AGENCY Respondent

REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on September 4, 2012) STRATAS J.A. [1] This is an application for judicial review of a decision of the Public Service Labour Relations Board dated February 8, 2011:2011 PSLRB 16.

In that decision, Vice-Chair Pineau determined what was to be included in an essential services agreement, pursuant tosubsection 123(1) of the Public Service Labour Relations Act, S.C. 2003, c. 22. [2] The applicant challenges the decision on procedural and substantive grounds. [3] First, the applicant submits that a site visit conducted by the Vice-Chair was done without jurisdiction. [4] We disagree. In our view, the Vice-Chair had the implicit jurisdiction to conduct a site visit, in light of the other functionsand powers given under the Act: Chrysler Canada Ltd. v.

Canada (Competition Tribunal), (SCC), [1992] 2 S.C.R. 394. [5] The applicant also alleges that the site visit was procedurally unfair in that counsel for the applicant (not counsel before us)could not attend. Further, the representatives of the applicant who did attend the site visit could not overhear the conversation of theVice-Chair during the site visit or understand the language she was using (French). The short answer to these is that it is incumbent on aparty to make timely objections to procedural defects.

Here, the applicant did not make any timely objections. [6] The applicant also submits that the Vice-Chair improperly used the results of the site visit as evidence in the proceedingrather than just to further her understanding of the evidence.

We have not been convinced that the Vice-Chair did anything other than usethe site visit as an opportunity to better understand the evidence. [7] The applicant also submits that the Vice-Chair’s decision cannot withstand scrutiny under the reasonableness standard ofreview because of the absence of evidence on certain key points, such as the nutritional indispensability of meat to the Canadian diet. [8] We consider the Vice-Chair’s decision to be reasonable. In paragraph 116 of its decision, the Vice-Chair cites the Board’sdecision in Canada (Treasury Board) v.

PSAC, PSLRB File No. 181-02-99, in which the relevant legal test is set out. Before us, theapplicant recognized this as the proper test. The test is whether the duties would be “reasonably…required to prevent or guard against theprobability or even the rational possibility of harm or injury to the health or physical well-being of individuals.” From there, the Vice-Chair makes a number of factual findings in paragraphs 117-135 of her decision.

Taken together, those findings support her conclusion, aconclusion that is defensible on the facts and the law, and, therefore, reasonable. [9] Finally, we do not accept that the order made by the Vice-Chair was overbroad in light of the terms of subsection 123(3) andthe factual context in which the order was made. [10] Therefore, despite the able submissions of Mr. Rootham, counsel for the applicant, we shall dismiss the application withcosts. "David Stratas" J.A.

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-117-11 APPLICATION FOR JUDICIAL REVIEW OF THE DECISION OF THE PUBLIC SERVICE LABOUR RELATIONS BOARD DATED FEBRUARY 8, 2011 STYLE OF CAUSE: Professional Institute of the Public Service of Canada v. Canadian Food Inspection Agency PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: September 4, 2012 REASONS FOR JUDGMENT OF THE COURT BY: Noël, Sharlow, Stratas JJ.A. DELIVERED FROM THE BENCH BY: Stratas J.A. APPEARANCES : Christopher Rootham FOR THE APPLICANT Caroline Engmann FOR THE RESPONDENT SOLICITORS OF RECORD : Nelligan O’Brien Payne LLP Ottawa , Ontario FOR THE APPLICANT

Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT