THE PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA v. STÉPHANE AUBRY, 2016 FCA 163

Date: 20160531 Docket: A-420-15 Citation: 2016 FCA 163 CORAM: NOËL C.J. TRUDEL J.A. GLEASON J.A. BETWEEN: THE PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA AND STÉPHANE AUBRY Appellants and ATTORNEY GENERAL OF CANADA Respondent Heard at Ottawa, Ontario, on May 31, 2016. Judgment delivered from the Bench at Ottawa, Ontario, on May 31, 2016. REASONS FOR JUDGMENT BY THE COURT Date: 20160531 Docket: A-420-15 Citation: 2016 FCA 163 CORAM: NOËL C.J. TRUDEL J.A. GLEASON J.A.

BETWEEN: THE PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA AND STÉPHANE AUBRY Appellants and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT BY THE COURT (Delivered from the Bench at Ottawa, Ontario, on May 31, 2016). THE COURT [ 1 ] This appeal arises in the context of an Application for Judicial Review commenced in the Federal Court by the appellants with respect to the 2014 Standard on Security Screening, adopted by the Treasury Board of Canada on October 20, 2014. Pursuant to the Financial Administration Act , R.S.C. 1985, c.

F-11, the 2014 Standard applies to all federal departments and agencies. [ 2 ] Pending the determination of their application for judicial review, the appellants sought an interlocutory injunction to prevent the Treasury Board from implementing particular screening measures in the 2014 Standard as they apply more particularly to employees and others requiring “reliability status” . Reliability status underpins all other security levels discussed in the 2014 Standard. [ 3 ] The Federal Court dismissed the motion for interlocutory injunction without costs.

We sit on the appeal of the Federal Court’s Order, dated September 22, 2015 ( 2015 FC 1101 ).

[4] Referring to the three part test known as RJR-MacDonald test (RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385), the Federal Court found that the appellants had established one or moreserious issues (reasons at paragraphs 97-119).

However, the appellants were found to have failed on the second and third branch of thetest, i.e. the irreparable harm and the balance of convenience. [5] It is trite law that to be successful, the appellants must persuade us that the Federal Court committed reviewable errors in itsapplication of these parts of the test. [6] The appellants have conceded that the Federal Court had no evidence before it to demonstrate that the 2014 Standard wouldimpact any member of the bargaining unit before the Application for Judicial review was heard on the merits.

Thus, even if a breach of aprivacy right equates to irreparable harm, the appellants have failed to show the likelihood of any such breach. The claim for irreparableharm is therefore entirely speculative. It thus follows that the Federal Court did not err in dismissing the motion for the injunction asproof of irreparable harm is a necessary pre-condition for the grant of an injunction. [7] As a result, the appeal will be dismissed with costs. “Marc Noël” Chief Justice “Johanne Trudel” J.A. “Mary J.L. Gleason” J.A.

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-420-15STYLE OF CAUSE: THE PROFESSIONAL INSTITUTE OF THE PUBLICSERVICE OF CANADA AND STÉPHANE AUBRY v.ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Ottawa, OntarioDATE OF HEARING: May 31, 2016REASONS FOR JUDGMENT BY THE COURT BY: NOËL C.J. TRUDEL J.A. GLEASON J.A. DELIVERED FROM THE BENCH BY: THE COURT APPEARANCES: Stephen Welchner For The Appellants Anne M. Turley Youri Tessier-Stall For The Respondent SOLICITORS OF RECORD: Welchner Law Office Ottawa, Ontario For The Appellants

William F. Pentney Deputy Attorney General of Canada Ottawa, Ontario For The Respondent