DAVID JOLIVET Applicant v. TREASURY BOARD (CORRECTIONAL SERVICE OF CANADA), 2014 FCA 1

Date: 20140107 Docket: A-192-13 Citation: 2014 FCA 1 CORAM: SHARLOW J.A. MAINVILLE J.A. NEAR J.A. BETWEEN: DAVID JOLIVET Applicant and TREASURY BOARD (CORRECTIONAL SERVICE OF CANADA) Respondent Heard at Ottawa, on January 7, 2014. Judgment delivered from the Bench at Ottawa, Ontario, on January 7, 2014. REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A. Date: 20140107 Docket: A-192-13 Citation: 2014 FCA 1 CORAM: SHARLOW J.A. MAINVILLE J.A. NEAR J.A. BETWEEN: DAVID JOLIVET Applicant and TREASURY BOARD (CORRECTIONAL SERVICE OF CANADA) Respondent

REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on January 7, 2014) SHARLOW J.A. [1] The applicant Mr. Jolivet is a member of the Canadian Prisoners’ Labour Confederation (CPLC), an organization of inmates offederal correctional institutions. The objective of the CPLC is to compel the Correctional Service of Canada to engage in collectivebargaining with respect to the terms and conditions under which inmates participate in institutional work programs. [2] When officials of the Correctional Service of Canada denied Mr.

Jolivet and other organizers of the CPLC the right to sign upmembers at Kent Institution, Mr. Jolivet submitted a complaint to the Public Service Labour Relations Board under

section 190 of thePublic Service Labour Relations Act, S.C. 2003, c. 22, alleging a contravention of subsection 186(1) of the Act, which reads as follows: 186.

(1) Neither the employer nor aperson who occupies a managerial orconfidential position, whether or not theperson is acting on behalf of theemployer, shall (

a) participate in or interfere with theformation or administration of anemployee organization or therepresentation of employees by anemployee organization; or (

b) discriminate against an employeeorganization. 186.

(1) Il est interdit à l’employeur et autitulaire d’un poste de direction ou deconfiance, qu’il agisse ou non pour lecompte de l’employeur :

a) de participer à la formation ou àl’administration d’une organisationsyndicale ou d’intervenir dans l’une oul’autre ou dans la représentation desfonctionnaires par celle-ci;

b) de faire des distinctions illicites àl’égard de toute organisation syndicale. [3] The Board dismissed the complaint without considering it on the merits. Mr. Jolivet now seeks judicial review of that decision.Having carefully reviewed the record and considered Mr.

Jolivet’s written and oral submissions, we have concluded for the followingreasons that this application for judicial review must be dismissed. [4] The Board concluded that it has no jurisdiction to entertain the complaint because inmates of a federal correctional institutionwho participate in an institutional work program are not, by virtue of that participation, “employees” as defined in subsection 2(1) of theAct because they are not appointed by the Public Service Commission to a position created by the Treasury Board.

In reaching thatconclusion, the Board followed a consistent line of jurisprudence, including the leading case of Canada (Attorney General) v. PublicService Alliance of Canada, (SCC), [1991] 1 S.C.R. 614 (referred to as the “Econosult” case). [5] Mr. Jolivet has raised numerous arguments in support of his application for judicial review, but essentially his position istwofold. First, he argues that the Econosult case is no longer good law.

Second, he argues that the Board’s dismissal of his complaintwithout considering the merits is inconsistent with many important legal and constitutional principles, including his rights under theCanadian Charter of Rights and Freedoms to freedom of association and freedom of expression. [6] The Act defines the legal authority of the Board. It is axiomatic that the Board has the legal authority to consider Mr. Jolivet’scomplaint on the merits only if it falls within the Board’s statutory mandate. [7] Mr.

Jolivet’s complaint is based necessarily on the premise that he and other inmates who participate in institutional employmentprograms are within the scope of the Act. The Board found that premise to be incorrect, based on the

definitions of “employee” and“employee organization” in subsection 2(1) the Act. Based on that finding, the Board was compelled to conclude that it does not have thelegal authority to consider the complaint on its merits, or to address Mr. Jolivet’s constitutional arguments. That conclusion must standunless this Court has a legal basis for setting it aside.

[ 8 ] The parties do not agree on the standard of review to be applied in this case. In our view, we do not need to determine this point because the outcome is the same under either the correctness or reasonableness standard. [ 9 ] We agree with the Board’s decision and its reasons. Specifically, we find that the Board’s understanding of the facts was open to it on the evidence before it, and the Board’s analysis of the jurisprudence and the relevant statutory provisions is well explained and soundly reasoned.

We find specifically that the principles from the Econosult case upon which the Board relied are binding on the Board and this Court. [ 10 ] Although the legislation relating to employment in the public service has evolved since the Econosult case was decided, the fundamental principle that employment in the public service is subject to specific legislated formalities remains valid. Inmates participating in work programs organized by the Correctional Service of Canada have not been appointed to a position in the federal public service.

As a result, they are not “employees” within the meaning of the Act. [ 11 ] The Crown has not asked for costs. However, Mr. Jolivet has asked for costs in any event of the outcome. In this Court, costs are awarded to an unsuccessful party only in exceptional cases. We are not persuaded that this is such a case. [ 12 ] The application for judicial review will be dismissed without costs. “K. Sharlow” J.A.

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-192-13 (APPEAL FROM DECISION NO. 2013 PSLRB 1 OF KATE ROGERS, A PANEL OF THE PUBLIC SERVICE LABOUR RELATIONS BOARD, DATED JANUARY 3, 2013, DOCKET NO. 561-02-539.) STYLE OF CAUSE: DAVID JOLIVET v. TREASURY BOARD (CORRECTIONAL SERVICE OF CANADA) PLACE OF HEARING: Ottawa DATE OF HEARING: January 7, 2014 REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A. MAINVILLE J.A. NEAR J.A.

DELIVERED FROM THE BENCH BY: SHARLOW J.A. APPEARANCES : Jeff Ewert For The Applicant Richard E. Fader For The Respondent SOLICITORS OF RECORD : N/A For The Applicant William F. Pentney Deputy Attorney General of Canada For The Respondent