FPSLREB Decisions

Complaint before the Board

[1]   The complainant, Réal Lamarche, filed a complaint before the Public Service Staff Relations Board (former Board) on September 10, 2002. The complainant alleges that:

[Translation]

Mr. Yvan Marceau, team leader, Appeals Division, TSO Quebec, appointed Danielle Rouleau on an acting basis as team leader, ITA Appeals, Sherbrooke without considering me as a candidate solely on the ground that I hold a union position.

[2]   At the request of the former Board, the complainant provided additional information on October 4, 2002. He explains therein that his complaint is filed under paragraphs 23(1)(a) and 8(2)(a) of the Public Service Staff Relations Act, R.S.C. (1985), c. P-35 (the “former Act”). He also states: [translation] “The managers involved in the appointment process did not qualify me as a candidate on the sole pretext that ‘I was not available because I occupied a national position with the union’”.

[3]   Paragraph 2 of the Board’s decision, dated April 26, 2004 (2004 PSSRB 29) states that, in fact, two complaints were made, one dated September 10, 2002 and the other dated October 4, 2002, but that after preliminary discussions the parties agreed to proceed with only the complaint of September 10, 2002.

[4]   A hearing was held on January 19 and 20, 2004 before the former Board and a decision was rendered on April 26, 2004, dismissing the complaint (2004 PSSRB 29).

[5]   The complainant filed an application for judicial review before the Federal Court of Appeal (file no. A-281-04). A decision granting the application was rendered on March 8, 2005 (2005 CAF 92). The Court issued the following order:

[Translation]

The application for judicial review will therefore be granted with costs, the Board’s decision shall be set aside and the matter will be referred back to it for a new hearing before a newly constituted tribunal.

[6]   On March 31, 2005, the former Public Service Staff Relations Act (R.S.C. (1895), c. P-35) was repealed (SI/2005-21). On April 1, 2005, the Public Service Labour Relations Act (the new “Act”), enacted by section 2 of the Public Service Modernization Act (PSMA), (S.C. 2003, c. 22), was proclaimed in force (SI/2005-22 to 24). Subsection 39(1) of Part 5 (Transitional Provisions) of the PSMA provides as follows:

Subject to this Division, any proceeding that the former Board was seized of immediately before the day on which section 12 of the new Act comes into force is transferred to the new Board to be disposed of in accordance with the new Act.

[7]   The new Board informed the parties on May 13, 2005 that the complaint would proceed under the new Act as PSLRB file no. 561-34-29. The Board invited the parties to submit their written arguments on the effects of the coming into force of the transitional provisions in sections 36 to 66 of the PSMA and, more specifically, the effect of section 39. The parties were also invited to comment on subsections 190(2) and 191(3) and paragraph 186(2)(b) of the new Act, as well as on the decision of the new Board in file 2005 PSLRB 50.

[8]   The parties were able to submit comments on these questions prior to the date set for the hearing (May 30, 2005).

[9]   The complainant responded to the Board’s questions as follows:

[Translation]

(1)       What is the impact of the coming into force of paragraph 186(2)( b ) of the new Act on this case?

Paragraph 186(2)( b ) of the new Act reiterates the key elements of paragraph 8(2)( b ) of the former Act. The slight changes to the wording of this paragraph do not alter the meaning in any way. Consequently, the provision of the new Act has no effect on the validity of the complainant’s exercising this remedy in this case. The same comment applies to paragraph 186(2)( a ), on which Réal Lamarche’s complaint is based.

(2)       What is the effect of the coming into force of subsection 190(2) of the new Act on any applicable time period for the filing of the above complaint, given the transitional provisions in sections 36 to 66 of the PSMA and, more specifically, those of section 39?

Subsection 190(2) of the new Act stipulates that a complaint must be made not later than 90 days after the date on which the complainant knew of the action or circumstances giving rise to the complaint. The former Act did not set out a time period.

If we assume that the 90-day period applies retroactively, it is our view that Mr. Lamarche respected this time limit. Mr. Lamarche’s first complaint was filed on July 18, 2002 (see Appendix 1). You will note that this initial complaint was sent to the Public Service Commission of Canada, although the address shown was that of the Public Service Staff Relations Board. The PSSRB did not keep the complaint but forwarded it to the PSC. On July 31, 2002, the PSC declined jurisdiction (see Appendix 2).

Mr. Lamarche sent the complaint back to the Staff Relations Board on September 10, 2002 (see Appendix 3). Since it was incomplete, the Board asked Mr. Lamarche for further details in a letter sent to him on September 23, 2002 (see Appendix 4). The Board received the additional information on October 4, 2002 (see Appendix 5), the date that was retained by the Board.

The purpose of the complaint was to denounce the fact that Mr. Lamarche was not considered for a position because of his union activities. Danielle Rouleau was appointed to the position on June 6, 2002 by Yvan Marceau, the manager identified in the complaint. Accordingly, it is our view that the 90-day period was respected should the Board conclude that this period applies.

However, since this is a new provision and no similar provision existed in the former Act, we believe that this subsection may not be applied to this case since the complaint was filed long before the new Act came into force. If the new provision were to apply, the complainant would risk losing this remedy should it be determined that the complaint was filed more than 90 days after he knew of the action or circumstances giving rise to it. Let us reiterate that the former Act did not contain any specific time limit.

It is also our opinion that finding that subsection 190(2) applies to this matter would have the result of giving retroactive effect to this provision when Parliament itself did not stipulate any such effect.

(3)       What is the effect of the coming into force of subsection 191(3) of the new Act with respect to the burden of proof that the parties must meet regarding the above complaint, given the transitional provisions set out in sections 36 to 66 of the PSMA and, more specifically, those of section 39?

As for subsection 191(3), we conclude that this provision should apply to this matter, since the complaint filed by the complainant is specifically covered by paragraph 190(1)( g ) of the new Act. This paragraph contains the same words and meaning as paragraph 23(1)( a ) of the former Act. Moreover, section 39 of the PSMA clearly provides that the new Board shall dispose of this matter in accordance with the new Act.

[10]   For its part, the respondent submitted the following comments:

[Translation]

Further to your letter of May 13, 2005, please find below the respondent’s arguments regarding the questions raised by the Board concerning the application of provisions of the “new” Public Service Labour Relations Act .

This case involves a complaint made in 2002 under paragraph 23(1)( a ) of the former Act alleging failure to comply with paragraph 8(2)( a ) of that Act. The former Board heard the case and rendered a decision in April 2004. That decision was set aside on March 8, 2005 by the Federal Court of Appeal, which ordered a hearing de novo before a new member of the Board.

The Public Service Modernization Act does not contain any specific transitional provision relating to complaints made under paragraph 23(1)( a ) of the former Act, contrary to what Parliament took care to specify in the case of complaints filed under paragraph 23(1)( b ) (see section 59 PSMA). A statute is presumed not to have retroactive effect on substantive law. However, new “procedural” provisions apply from the time they come into force (see Driedger on the Construction of Statutes , 3 rd ed., pp. 508-549, and section 43 of the Interpretation Act , R.S., c. I-23, s. 1).

Section 39 PSMA simply states that any proceeding that the former Board was seized of “ is transferred to the new Board to be disposed of in accordance with the new Act”. This provision does not change the substantive legislative scheme at the time that the former Board was seized of the case. It simply gives jurisdiction to the new Board to dispose of the matter.

Sections 12 and 13 of the new Act establish a new legislative scheme with respect to unfair labour practices and the hearing of complaints alleging, among other things, such practices. Thus, in keeping with the principles of interpretation referred to earlier, these new provisions of substantive law do not apply to proceedings that were before the former Board, in this instance, an allegation of the contravention of paragraph 8(2)( a ) of the former Act, which is continuing before the new Board.

Furthermore, reading the wording of paragraph 190(1)( g ) of the new Act reveals that the new Board hears complaints alleging that a person was involved in an unfair labour practice within the meaning of section 185. Since no transitional provision recognizes de jure a complaint filed under paragraphs 23(1)( a ) and 8(2)( a ) of the former Act as being deemed an unfair labour practice within the meaning of sections 185 et seq . of the new Act, a complaint that is transferred to the new Board cannot be a complaint within the meaning of paragraph 190(1)( g ) and section 185. Rather, the complaint relates to the provisions applicable at the time of the events in question, that is, paragraphs 23(1)( a ) and 8(2) of the former Act.

Subject to the oral arguments that the Board will allow at the hearing, the respondent submits that paragraph 186(2)( b ) and subsections 190(2) and 191(3) of the new Act, which provide among other things for a reversal of the burden of proof, are provisions of substantive law and do not apply to this matter.

[11]   A hearing was held on May 30, 2005 and the parties had the opportunity to present oral arguments on the questions relating to the transitional provisions and to respond to the arguments of the other party.

Summary of the arguments

[12]   For the complainant, the basis for the complaint filed by Mr. Lamarche in September 2002 was set out in subsection 23(1) of the former Act and appears in paragraph 190(1)(g) of the new Act. Unfair labour practices, prohibited under subsection 8(1) of the former Act, are defined in greater detail in section 186 of the new Act, although they are fundamentally the same prohibitions.

[13]   With respect to the issue of the time limit set out in subsection 190(2), the complainant argued that this element is a matter of procedure that may be applied only when the statutes are compatible. In the complainant’s opinion, the addition in the new Act of a 90-day time period is not compatible with the fact that there was no time limit set out in the former Act. In this case, paragraph 44(c) of the Interpretation Act stipulates that this new element may not be applied. In the event that the time period were a substantive element, it still could not be applied to Mr. Lamarche’s complaint, given paragraph 43(c) of the Interpretation Act, which guarantees the acquired rights of the parties.

[14]   As for the reversal of the burden of proof set out in subsection 191(3) of the new Act, the complainant argues that this is a matter of procedure only and can apply in this case. The question of the burden of proof affects only the manner in which the evidence is presented at the hearing and does not affect the substance of the issues presented. It is merely a criterion for assessing the evidence that the adjudicator uses when deciding the question before him, and this element is essentially procedural. The decision of the Supreme Court of Canada in R. v. Ali, [1980] 1 S.C.R. 221, sets out the principle whereby a new procedure shall not apply retroactively to matters that occurred prior to the coming into force of new rules of evidence when such new rules are not compatible with or adaptable to the former ones. In that case, the matter involved a new evidentiary rule requiring “samples” of breath rather than a single sample. Since the reversal of the burden of proof is a procedural provision, the principle set out in R. v. Ali (supra) must be applied to this case.

[15]   For his part, the respondent argues that the principle of non-retroactivity of statutes is recognized in common law, as pointed out by professor Ruth Sullivan in Driedger on the Construction of Statutes (Third Edition, Butterworths) at page 513. Professor Sullivan states, at page 526, that in the absence of specific transitional provisions the general rules set out in the Interpretation Act (R.S. 1985, c. I-21) must be applied.

[16]   It is the respondent’s position that the new provisions regarding the presumption of the respondent’s guilt and the burden of proof, as well as the new time limit, are substantive matters and not procedural ones. Under the former Act, the complainant had to demonstrate that the respondent had contravened the prohibitions set out in the legislation, while under the new Act the respondent is presumed guilty as soon as the complaint is made. This creates a new obligation for the respondent. The same holds true for the burden of proving otherwise that is imposed on the respondent under subsection 191(3) of the new Act.

[17]   Section 39, which provides that the new Board is seized of all of the matters dealt with by the former Board, makes no specific provision for a complaint heard under paragraph 23(1)(a) of the former Act. In sections 59 and 60 of the transitional provisions, Parliament provided for a specific way of handling complaints made under paragraphs 23(1)(b) and 23(1)(c) of the former Act.

[18]   The common law principle of the non-retroactivity of statutes is recognized and affirmed in The Interpretation of Legislation in Canada (3 rd Edition), by Pierre-André Côté. According to this principle, statutes cannot be applied retroactively in the absence of specific provisions to that effect in the legislation. There can be no retroactive application of provisions altering the rights of the parties with respect to the presumption of guilt, the burden of proof or time limits. The parties acquired their rights at the time that Mr. Lamarche’s complaint was filed with the former Board in September 2002. Even if the new Board is deemed to be seized “anew” of the complaint as of the date of the Federal Court of Appeal’s decision of March 8, 2005, the former Act must apply since the new Act may not be applied prior to April 1, 2005.

[19]   In reply, the complainant argues that section 39 is clear and states that the new Board must dispose of matters that the former Board was seized of in accordance with the new Act. The obligation set out in the former Act is that which prohibits the respondent from exercising unfair labour practices toward an employee. This obligation has been retained in the new Act, although the manner of presenting evidence has changed.

[20]   The new Board must dispose of Mr. Lamarche’s complaint like any other complaint of which it is seized. The new evidentiary rules must be applied because the hearing began after the new Act came into force.

[21]   Since both parties requested an opportunity to supplement in writing their arguments on the application of the new Act, they were directed to do so. Because it is not possible to administer a hearing and the handling of evidence when the parties submit irreconcilable positions to the Board, I decided to render an interlocutory decision following the submission of the supplementary arguments on the matters in issue.

[22]   On June 13, 2005, the complainant submitted his additional arguments on the preliminary question to the new Board and provided a copy to the other party. The arguments are as follows:

[Translation]

This case relates to a complaint filed under section 23 of the Public Service Staff Relations Act (former Act) by which the complainant, Mr. Lamarche, criticizes the employer and/or its representative for failure to comply with the Act by adopting practices prohibited under section 8 thereof, namely, by refusing to consider him as a candidate for a position solely on the ground that he holds a national position with his union. The Public Service Staff Relations Board (PSSRB) ultimately received the complaint on September 10, 2002.

The PSSRB summoned the parties for an investigation and hearing for the first time on October 30, 2003 before adjudicator J. P. Tessier. After the complainant’s first witness was heard, the adjudicator declared that he knew the respondent personally and therefore felt obliged to recuse himself. The case was then sent back to the Registrar of the PSSRB so that a new adjudicator could be appointed. On January 19 and 20, 2004, the case was heard again before the PSSRB Vice-Chairperson, Sylvie Matteau, who dismissed the complaint in a written decision rendered on April 26, 2004. Given that the rules of natural justice had not been respected, the complainant applied to the Federal Court of Appeal for judicial review of the decision.

In a decision rendered immediately, the Federal Court of Appeal granted Mr. Lamarche’s application, set aside the PSSRB’s decision rendered on April 26, 2004 and ordered that the case be referred back to the Board for a new hearing before a newly constituted tribunal. The parties were then summoned by the PSSRB to a new hearing of the entire case on May 30 and 31 and June 1, 2005.

Accordingly, the parties appeared before the Public Service Labour Relations Board on May 30, 2005 to have this case heard. At the outset, the Board raised a preliminary question regarding the application of certain provisions of the new Public Service Labour Relations Act, which came into force on April 1, 2005 (hereafter the “new Act”). Although the parties had the opportunity to present their arguments briefly, the Board agreed to allow them to adduce additional written notes.

Initially, the questions raised concerned whether the Board should apply sections 186, 190 and 191 of the new Act at the hearing originally scheduled for May 30, 31 and June 1, 2005. Given the nature of these provisions, the Board decided that a preliminary decision on the application of these provisions was needed prior to proceeding with an investigation of the merits, especially in light of subsection 191(3), which shifts the burden of proof in the case of complaints made under subsection 190(1) of the new Act. As shown during the hearing on May 30, 2005, section 190 is the counterpart of section 23 of the former Act. The purpose of the complainant’s complaint is to denounce the respondent’s failure to comply with a prohibition set out in section 8 of the former Act. Section 186 of the new Act protects the same rights, although Parliament henceforth defines them as unfair labour practices. While the designation has changed, the essential elements remain the same. For this reason, is it necessary to restrict the application of the provisions of the new Act with respect to this case?

The arguments presented by the parties at the hearing resulted in additional questions being raised. These questions could be summarized as follows:

• Are the provisions relating to burden of proof and to the time limit for the filing of a complaint questions of law or of procedure?
• Since the complaint was made prior to the coming into force of the new provision in subsection 191(3), can it be concluded that at the time the complaint was filed respondent Marceau had a vested right with respect to the burden of proof?
• Should the order of the Federal Court of Appeal referring this case back to the PSSRB for a new hearing be interpreted as if this were an entirely new case for the PSSRB or as a continuation of a proceeding of which it was already seized?

Application of the new Act

Although the complaint made to the Board was filed prior to the coming into force of the new Act, it is our opinion that it is the Board’s duty to apply these new provisions. Parliament clearly expressed its desire to apply the new Act to proceedings pending at the time the Act came into force on April 1, 2005. Section 39 of the transitional provisions is clear in this regard. Since this case was not being heard at the time the new Act came into force, only subsection 39(1) may be applied:

39. (1) Subject to this Division, any proceeding that the former Board was seized of immediately before the day on which section 12 of the new Act comes into force is transferred to the new Board to be disposed of in accordance with the new Act.

At the hearing on May 30, 2005, the respondent pointed out that Parliament had chosen not to include a specific transitional provision regarding the hearing of complaints of the same nature as that made by the complainant in this matter. We are therefore of the opinion that subsection 39(1) must apply in light of the general rules of interpretation. In this regard, it is necessary to refer to sections 43 and 44 of the Interpretation Act , R.S.C. 1985, c. I-21. Section 43 provides that the repeal of an enactment does not affect any acquired right or privilege, while section 44 clearly states that a procedure established by the new enactment shall be followed as far as it can be adapted thereto. These rules quickly led to the debate around whether the question of the burden of proof is to be considered a matter of procedure or a substantive right and, in the latter instance, if it is a right assigned to the respondent, whether it is an acquired right.

Retroactive application of statutes

The need to determine whether the reversal of the burden of proof in subsection 191(3) and the question of the time limit provided for in subsection 190(2) are questions of law or of procedure arises essentially from the principle that a statute cannot be applied retroactively unless it is expressly decreed therein or implicitly requires such an interpretation. In the case before the Board, Parliament did not provide any rule of this nature with respect to the application of sections 190 and 191 of the new Act. Accordingly, the Act shall apply upon its coming into force and it falls to the Board to determine whether it is a matter of substantive rights acquired by the parties prior to the coming into force of the new Act or whether it is a matter of procedure. In the latter instance, these provisions must be applied fully from the moment they come into effect. (In this regard, see Gustavson Drilling (1964) Ltd. v. Canada (Minister of National Revenue, M.N.R.), [1977] 1 S.C.R. 271 and A.G. ( Quebec) v. Expropriation Tribunal , [1986] 1 S.C.R. 732).

Author Pierre-André Côté comments as follows on the immediate or retroactive effect of statutes in his work, The Interpretation of Legislation in Canada , 3^rd Edition, Carswell Thomson Professional Publishing, pp. 178, 179 and 180.

. . . for there is no retroactive effect associated with the immediate application of procedural enactments. The rule, simply stated, is that there are no vested rights in procedural matters. There is consequently no survival of the earlier act, and the new one is, from the moment of its commencement, applicable to the regulation of future procedural steps.

. . .

Because procedural provisions apply to pending cases, the term “retroactivity” has been used by analogy with the effect of statutes affecting substantive rights. But procedural enactments do not govern the law that the judge declares to have existed: they only deal with the procedures used to assert a right, and with the rules for the conduct of the hearing. It is normal that a statute dealing with trial procedure will govern the future conduct of all trials carried out under its authority. This is not retroactivity but simply immediate and prospective application.

Limitation period in subsection 190(2) of the new Act

At the hearing on May 30, 2005, the complainant argued that subsection 190(2) was a procedural matter and therefore could not be applied retroactively because of incompatibility with the previous statute, which did not impose any specific time limit on the complainant for filing such a complaint. Assuming that the complainant filed his complaint within a period greater than 90 days, which we deny, the application of subsection 190(2) would enable the respondent to invoke prescription of the remedy as a defence, a defence that was not available to him at the time the complaint was made. Not only would this give the respondent an additional defence but it would also retroactively deprive the complainant of a right that he had acquired, that is, the right to make a complaint.

The judgment of the Supreme Court of Canada in Martin v. Perrie , [1986] 1 S.C.R. 41, clearly defines the approach to be used by the courts when a repealed enactment affects a limitation period. The facts of the case related to an action in damages for medical malpractice. Over 10 years after surgery that took place in 1969, the appellant learned of the negligence that she had been the victim of and that had been committed by the surgeon who had operated on her. At the time of the surgery, the statute in effect provided a limitation period of one year after the end of treatment for initiating action of this nature. However, at the time that she learned of the negligence, the statute, repealed in the meantime, now provided a period of one year from the date that she learned of or ought to have known the facts giving rise to her action. At paragraph 17 of its judgment, the Supreme Court adopts as its own the words of the High Court of Australia in a similar matter:

[17] At pages 277-78, Williams J. said:

Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of case can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights.

Contrary to the facts in Martin v. Perrie , Mr. Lamarche’s complaint was made well before the new Act came into force. In this instance, since application of the time limit might lead to dismissal of the complaint because of a newly created defence, we find that, consistent with the comments of the Supreme Court and the general rules of interpretation, this is a procedural matter, the application of which at this time is incompatible with the facts of the case.

Moreover, in his work, The Interpretation of Legislation in Canada , 3^rd Edition, Carswell Thomson Professional Publishing, p. 185, author Pierre-André Côté notes that the case law is divided on how to characterize statutes modifying time limits. He states in particular:

Tentatively, it would seem that statutes which change time limits will be characterized as purely procedural if their application to a specific case only serves to shorten or prolong the period. But if application of the new statute retroactively repeals a previously existing right, or revives a right which had ceased to exist, the courts tend to consider that the statute is not purely procedural. In each case it is important to examine the practical effect of application of the new rule.

Since Mr. Lamarche’s complaint was filed within the 90-day period included in the new Act, we find that there is no need to examine this question further.

Reversal of the burden of proof

As indicated at the hearing on May 30, 2005, we believe that the reversal of the burden of proof is a procedural matter and must therefore be applied to this case. The burden of proof has no effect whatsoever on the rights of the parties giving rise to the remedy taken by the complainant. Nor does it limit or affect in any way the defence that the parties will bring forward during the investigation of the merits of this case.

In this regard, author Pierre-André Côté states at pages 186-187 of The Interpretation of Legislation in Canada :

Statutes dealing with rules of evidence are not directly related to the existence of a substantive right. They deal, rather, with the various elements which may influence the judge in ruling on the right’s existence; that is, with the legal means of asserting a right rather than with its existence. As these rules regulate the actions of the judge and the parties during a trial, it would seem normal that the applicable rules of evidence be those in force at the time of administration of the evidence.

In Angus v. Sun Alliance Insurance Company , [1988] 2 S.C.R. 256, the Supreme Court of Canada had to rule on whether a statute repealed prior to action being commenced applied despite the fact that the facts giving rise to the action occurred prior to the repeal. The victim of an accident while she was a passenger in a car driven by her husband, Ms. Angus brought an action against him to recover damages due to his negligence. At the time of the accident, the law prevented spouses from suing each other for damages. Between the time of the accident and the time that Ms. Angus filed her suit, the provisions with respect to immunity between spouses were repealed. To determine whether the applicant could initiate an action in accordance with the repealed statute, the Court first had to determine whether it was a procedural matter or one of substantive rights. At paragraphs 19 et seq ., the Court states:

(19) . . . A provision is substantive or procedural for the purposes of retrospective application not according to whether or not it is based upon a legal fiction, but according to whether or not it affects substantive rights. P.-A. Côté, in The Interpretation of Legislation in Canada (1984), has this to say at p. 137:

In dealing with questions of temporal application of statutes, the term “procedural” has an important connotation: to determine if the provision will be applied immediately [i.e. to pending cases], . . . “the question to be considered is not simply whether the enactment is one affecting procedure but whether it affects procedure only and does not affect substantial rights of the parties.” [Quoting DeRoussy v. Nesbitt (1920), 53 D.L.R. 514, 516]

(20) In the present case, it is difficult to see how procedure is being affected at all. The provision in question provides a complete defence to an action. Whatever may be the reasons for this, and whether one agrees or disagrees with them, the provision of a complete defence to an action, just as much as the creation of a cause of action itself, is a substantive matter.

(21) Even if one assumes that the provision in question is procedural in some sense, the judicially created presumptions regarding the retrospective effect of procedural rules were not devised with this sort of distinction in mind. Normally, rules of procedure do not affect the content or existence of an action or defence (or right, obligation, or whatever else is the subject of the legislation), but only the manner of its enforcement or use. P. St. J. Langan, Maxwell on Statutory Interpretation (12^th ed. 1969), at p. 222, puts the matter this way:

The presumption against retrospective construction has no application to enactments which affect only the procedure and practice of the courts. No person has a vested right in any course of procedure, but only the right of prosecution or defence in the manner prescribed for the time being, by or for the court in which he sues, and if an Act of Parliament alters that mode of procedure, he can only proceed according to that altered mode.

Alteration of a “mode” of procedure in the conduct of a defence is a very different thing from the removal of the defence entirely. The latter is in essence an interference with a vested right.

(22) This is the reason for the judicially-created exception for limitations statutes. Although in some sense “procedural”, they will not be presumed to have retrospective effect since they may deprive a plaintiff of a right of action which he had at the time of the passage of the legislation; . . .

This opinion of the Supreme Court fits perfectly with this case. The reversal of the burden of proof has no effect whatsoever on the defences that could be presented by the respondent Marceau during the investigation of the merits. The only difference will be in the way that the evidence is adduced and analysed by the Board. It must be remembered that the only consequence of shifting the burden of proof is to change the “mode” of procedure in the conduct of the defence.

Since this is a matter of procedure, it would be wrong to claim that respondent Marceau has a vested right regarding the burden of proof. Even if the Board were to find that this is a substantive right, which we contest, it could not be claimed that such a right was vested in the respondent. Case law of the Supreme Court on this topic could not be any clearer. A right is considered vested only when its holder can truly assert it in a clear way and it does not affect future events. In the instant case, assignment of the burden of proof occurs only at the time that the case is heard before a court, that is, at the time that the investigation of the merits begins. The fact that respondent Marceau did not carry the burden of proof under the former Act cannot be considered a right that was vested in him. If the Board were to determine that this is a substantive right, which we contest, it could at most be considered a simple expectation. (Gustavson Drilling (1964) Ltd. v. Canada (Minister of National Revenue M.N.R.), [1977] 1 S.C.R. 271, A.G. (Quebec) v. Expropriation Tribunal, [1986] 1 S.C.R. 732, R. v. Puskas, [1998] 1 S.C.R. 1207).

Precedents

Although the reverse burden of proof in subsection 191(3) is a new right under the new Act, a provision of this type is not foreign to labour law in Canada. Indeed, the Canada Labour Code has similar provisions relating to onus of proof. Questions similar to those raised in this instance have previously been examined when provisions of the same kind came into force.

On July 6, 1979, the Canada Labour Relations Board (hereafter the “CLRB”) rendered a decision in Union Nationale des employés de commerce et Banque Canadienne Nationale , 35 di 39; [1980] 1 Can LRBR 470 with respect to complaints of unfair labour practice filed by the union. In its decision, the CLRB responded to the question of the applicability of a provision that introduced a reverse burden of proof in cases involving complaints of unfair labour practice. As in the present case, the provision setting out a reverse burden of proof came into force after the events giving rise to the complaints and before the commencement of the hearing of the case before the CLRB.

In its decision, the CLRB clearly stated that the change reversing the burden of proof was a procedural change and had the effect of applying to all cases heard after the provision came into force. The CLRB’s decision on this preliminary question was based on a decision rendered a few years earlier by the Ontario Labour Relations Board in Barrie Typographical Union Number 873 and The Barrie Examiner , [1976] 1 Can LRBR 291. The facts in that case are also similar to the present case with respect to the coming into force of a provision that reverses the onus of proof.

In its decision, the CLRB states:

On the first point raised, namely the applicability of the new section 188(3) to the complaints before us, we made a determination at the start of the hearing to the effect that the change contemplated in section 188(3) was a procedural one which applied to all cases coming before the Board for a hearing after June 1, 1978. In reaching our decision, we relied on the decision rendered by the Ontario Labour Relations Board in Barrie Typographical Union Number 873 and the Barrie Examiner, [1976] 1 Can LRBR 291, in which the Ontario Board had considered a similar situation. That Board had the following to say at pages 295 and 296 of that decision:

“Rules relating to the location of the onus of proof are unquestionably rules of procedure. The onus of proof only comes into play after the trier-of-fact has found the evidence to be so evenly balanced that no clear conclusion can be drawn. See Robins v. National Trust Co. Ltd. [1927] 2 D.L.R. 98 (J.C.P.C.). In this situation, the trier-of-fact must then fall back upon the rule relating to the location of the onus of proof, and make an evidential finding against the party upon whom the burden rests. Rules as to onus, therefore, are rules of evidence, establishing a procedure to follow where the evidence of two opposing parties is evenly balanced. Support for this conclusion can be found in R. v. Krimps, [1931] 3 D.L.R. 767 (Man. C.A.); dicta to the same effect can be found in Attorney General v. Halliday [1866-67] U.C.Q.B. 397 and Sanders v. Malisbury (1882), 1 O.R. 178. In view of this authority, there is no doubt in our minds that the amendment to s. 79 of the Labour Relations Act , reversing the onus of proof, is a rule of procedure.

The reverse onus, because it is a matter of procedure, can be construed as applying to all hearings held subsequent to its enactment. This construction does not give retroactive effect to the rule. Since the rule is one directed to the assessment of evidence at the hearing, the critical point of time is the hearing, and not when the events which are the subject of the evidence occurred. So long as the hearing is held after the rules come into force, the rule cannot be said to operate retroactively. At this point, a distinction should be made between the commencement of proceedings and the holding of the hearing. Because the reverse onus does not come into play until after the evidence has been heard at the hearing, the mere fact that the proceedings in this case were commenced prior to when the amendment came into force does not add an element of retrospectivity. As was pointed out in Wicks v. Armstrong (1928), 61 O.L.R. 667, at p. 669, amendments to rules of evidence apply immediately, regardless of when proceedings are commenced.”

Order of the Federal Court of Appeal

With respect to the decision of the Federal Court of Appeal, it is our view that it has no effect on the application of the provisions of the new Act. By ordering that the matter be referred back for a new hearing, the Court seeks to have the PSLRB seized as though it were an entirely new case. When it rendered its decision on April 6, 2004, the PSSRB was definitively no longer seized of this case and only the Federal Court of Appeal had the authority to refer it back to it.

However, the findings might have been different if the Court had ordered a simple reopening of the investigation to allow for the submission of further evidence. In that situation, the issue of the applicability of the new Act would have to have been considered since the hearing of the case commenced before the new provisions came into force. In the case before us, because the hearing of the matter has not yet commenced, it can only be concluded that the new provisions apply, in keeping with the above-mentioned arguments and authorities.

International Association of Machinist and Aerospace Workers and District Lodge 147, National Association of Federal Correctional Workers, complainants

AND

Correctional Service Canada, Treasury Board and Don Graham, respondents,

P.S.L.R.B., 561-2-49, June 6, 2005.

On June 9, 2005, the PSLRB sent the parties a decision rendered on June 6, 2005 by the new Public Service Labour Relations Board, and asked them to comment on the passage dealing with the transitional provisions relating to the coming into force of the new Act on April 1, 2005.

That decision also deals with a complaint made under section 23 of the former Act and criticizes the employer for failure to comply with the prohibitions set out in sections 8, 9 and 10. The hearing was held on February 21 and 22, 2005, a few weeks before the new Act came into force. Since the decision had not been rendered at the time that the Act came into force, the PSLRB considered the question of the applicability of the provisions of the new Act. After giving the parties an opportunity to express their points of view, the PSLRB ruled that the new provisions could not apply for the following reasons:

[81] This complaint, however, was filed under the PSSRA. Once the complaint has been filed, the parties’ rights, including who may be a party and who bears the onus, crystallized. Absent a clear indication from Parliament, such rights should not be interfered with. (See Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes , 4^th ed., at page 568, and see section 43 of the Interpretation Act ).

We agree with the PSLRB’s decision not to apply the provisions of the new Act, although we do not agree with the reasons given in support of its decision. First of all, we respectfully submit that the PSLRB erred in deciding that the burden of proof constituted a right. As mentioned earlier, we argue that the assignment of the onus of proof is a matter of procedure. However, we believe that it would be incorrect to apply such a provision given that all of the evidence was heard prior to the coming into force of the Act. To apply a reversal of the onus of proof when a case has already been taken under consideration would simply be incompatible and consequently contrary to the rules of interpretation.

In light of the above arguments and the fact that Mr. Lamarche’s complaint will be heard before the new Board after the new Act has come into force, this aspect of the decision cannot be applied to this case.

Given all of the above, we ask that the Public Service Labour Relations Board accept the complainant’s arguments and apply the provisions of the new Act in the hearing of the merits of this case.

 

[23]   The respondent submitted his additional arguments to the new Board on June 13, 2005 and sent a copy to the other party. His arguments read as follows:

[Translation]

RE:	Complaint pursuant to section 23 of the Public
	Service Staff Relations Act
	Complainant: Réal Lamarche 561-34-29

Further to your letter of June 1, 2005, please find below the additional arguments of the respondent with respect to the questions raised by the Board regarding the applicability of the provisions of the “new” Public Service Labour Relations Act in light of the transitional provisions and, more specifically, section 39 PSMA. The respondent has already taken the position that subsection 191(3) of the new Act, which introduces the presumption of the respondent’s guilt and imposing on the respondent the burden to prove otherwise, does not apply in this instance.

As for the protection of vested rights, the respondent submits that the filing of the complaint in October 2002, under paragraph 23(1)(a) of the Act applicable at the time, crystallized the legal situation between the parties so that the provisions of substantive law in effect at the time shall apply (see paragraph 81 of the recent decision in IAMAW and Correctional Service, 2005 PSLRB 50), unless otherwise indicated by Parliament.

The very wording of subsection 191(3) of the new Act shows Parliament’s intent to protect the legal situation applicable at the time the complaint was made.

191(3)

If a complaint is made in writing under subsection 190(1) in respect of an alleged failure by the employer or any person acting on behalf of the employer to comply with subsection 186(2), the written complaint is itself evidence that the failure actually occurred and, if any party to the complaint proceedings alleges that the failure did not occur, the burden of proving that it did not is on that party. [Emphasis added]

Therefore, the presumption of the respondent’s guilt and the reverse burden of proof take effect when a complaint is made in writing under subsection 190(1) [of the new Act].

Consequently, as the respondent argues, subsection 191(3) of the new Act cannot apply to the complaint at issue because said complaint was filed under paragraph 23(1)( a ) of the former Act.

[24]   The complainant’s response to the respondent’s argument, which was submitted to the new Board and sent to the other party on June 23, 2005, reads as follows:

[Translation]

In his arguments, the respondent claims that the onus of proof is a matter of rights and that the right in question was vested to the respondent at the moment that the complaint was filed, that is, before the new Act came into force. For the reasons invoked in our written arguments, we contest this interpretation, which moreover is not supported by any authority other than the recent decision by the Public Service Labour Relations Board (PSLRB) in IAMAW and Correctional Service, 2005 PSLRB 50. With respect to that decision, we respectfully submit that to characterize the onus of proof as a substantive right is an incorrect conclusion contrary to doctrine and to abundant case law, as demonstrated in the arguments adduced by the complainant.

In support of its decision in IAMAW and Correctional Service , 2005, the PSLRB relies on a passage from the work of Ruth Sullivan, (Sullivan and Driedger on the Construction of Statutes, 4^th ed., p. 568), which deals solely with the concept of substantive rights and vested rights. In this regard, it is not possible to deny the validity of the explanations provided by the author. However, the fact is that they are cited in a completely different context. Indeed, as in the present case, the PSLRB was dealing with a matter of procedure and not of substantive law. At page 187 of The Interpretation of Legislation in Canada , Pierre-André Côté comments as follows regarding evidentiary statutes:

The authorities provide numerous examples of statutes dealing with rules of evidence being held to be purely procedural and hence of prospective application: admission of evidence that was previously inadmissible, a statute changing the rules respecting compellability of witnesses, reversal of the onus of proof, attribution of weight to a document or an event, modification of rules relating to the necessity of corroboration, protection of witnesses.

Since there is no concept of vested right with respect to matters of procedure, it is therefore wrong to argue that it was vested to the respondent at the time that the written complaint was filed and that the onus was not on him. The assignment of the burden of proof acquires its meaning at the time that the evidence is filed with the court, which itself is charged with administering the rules of evidence within the context of the cases that it is called upon to determine.

For these reasons and for those adduced with the submission of the written arguments, we ask that the Board reject the claimant’s arguments and order that subsection 191(3) of the new Act be applied to the hearing on the merits.

[25]   The respondent’s response to the arguments presented by the complainant were submitted to the new Board and sent to the other party on June 28, 2005. The response is as follows:

[Translation]

This is a response to the arguments submitted by the complainant on June 13, 2005.

The complainant’s arguments deal mainly with the distinction between the concepts of substantive law and procedural law. The respondent reiterates his position that the change in the new Act with respect to the presumption of the respondent’s guilt set out in subsection 191(3) is a matter of substantive and not procedural law. The respondent stands by his initial arguments but wishes to make the following clarification.

The right to make a complaint of unfair labour practice and to obtain remedy is substantive in nature. This right exists only because it is provided for in a legislative mechanism. Under the scheme of the former Act, the mechanism for making a complaint was set out in section 23. As for the mechanism in the new Act, it is found in sections 190 et seq . Among other elements, these sections set out a limitation period as well as a presumption of the respondent’s guilt (190(2) and 191(3)), two elements that were not in the former Act. This presumption can be made only when a complaint is instituted under section 190, as attested by the wording of subsection 191(3). It is therefore incorrect to argue that it is a simple matter of procedure related to the assessment of the evidence.

Furthermore, contrary to the complainant’s claims, the establishment of evidence against the respondent through the filing of a complaint does not require any assessment on the part of the tribunal at the time of the hearing. It is a legal presumption established by the effect of the Act at the time the complaint is filed and is not subject to assessment of the evidence by the tribunal at the hearing. Mr. Lamarche’s complaint was filed under the terms of section 23 of the former Act, thereby preventing the commencement of the legal presumption of guilt against the respondent as set out under the scheme of the new Act.

Reasons

[26]   Subsection 39(1) of the transitional provisions set out in Part 5 of the Public Service Modernization Act states that any proceeding that the former Board was seized of on March 31, 2005 is transferred to the new Board. This element does not create a problem of interpretation, in contrast with the provision in the last part of the subsection that the new Board shall dispose of such proceedings in accordance with the new Act.

[27]   The complaint before us is based on paragraph 23(1)(a) of the former Act and denounces a failure to comply with the prohibitions set out in paragraph 8(2)(a). It alleges that the respondent discriminated against the complainant in an appointment process because of his participation in union activities.

[28]   In the new Act, complaints of this nature are considered “unfair labour practices”, defined in section 185 of Division 12 of the new Act. A complaint can be made against unfair labour practices by a respondent under paragraph 190(1)(g) of the new Act. The prohibition against making illegal distinctions in employment or other conditions of employment toward an employee because he is a member, officer or representative of an employee organization is stipulated in paragraph 186(2)(a)(i). The imposition, at the time of appointment, of any conditions that seek to restrain an employee from becoming a member of an employee organization or from asserting any right under the Act is prohibited under paragraph 186(2)(b) of the new Act.

[29]   A complaint made under section 190 of the new Act must be made within 90 days of the date on which the complainant knew (or ought to have known) of the action or circumstances giving rise to it, as set out in subsection 190(2). This time limit did not exist in the former Act.

[30]   In addition, subsection 191(3) of the new Act states:

191(3) If a complaint is made in writing under subsection 190(1) in respect of an alleged failure by the employer or any person acting on behalf of the employer to comply with subsection 186(2), the written complaint is itself evidence that the failure actually occurred and, if any party to the complaint proceedings alleges that the failure did not occur, the burden of proving that it did not is on that party.

[31]   These provisions imply that the respondent is presumed guilty of unfair labour practices once   a complaint in writing making such an allegation is filed. The onus is on the respondent to prove that the failure did not occur. These are new rights created by the new Act.

[32]   Thus, the new Act sets out new elements associated with a complaint of unfair labour practice, specifically, a 90-day limitation period and a presumption that the respondent failed to comply and that the onus is on the respondent to show otherwise. The question to be determined is therefore whether these new provisions are to be applied to this complaint and whether the scheme of the new Act has a retroactive effect on the complaint at issue.

Transitional provisions

[33]   None of the stipulations in the transitional provisions specifically states how complaints made under paragraph 23(1)(a) of the former Act are to be dealt with, except in the general statement that appears in subsection 39(1), which indicates that proceedings transferred to the new Board are to be disposed of in accordance with the new Act. In sections 59 and 60 of the transitional provisions, Parliament clearly set out how complaints under paragraph 23(1)(b) of the former Act are deemed to be policy grievances and those made under paragraph 23(1)(c) are deemed to have been withdrawn as at April 1, 2005. These elements show that the will of Parliament is clearly to apply to complaints made under paragraphs 23(1)(b) and 23(1)(c) of the former Act the new scheme of parties’ rights and obligations as of April 1, 2005. I do not believe that the general statement in subsection 39(1) of the transitional provisions (in accordance with which proceedings that the former Board was seized of as at March 31, 2005 must be disposed of in accordance with the new Act) indicates Parliament’s intent to alter retroactively the rights and obligations of parties with respect to complaints made to the former Board under paragraph 23(1)(a) of the former Act.

[34]   Since Parliament did not specifically state how the new scheme of rights and obligations relating to complaints of unfair labour practices could be applied to complaints that the former Board was seized of under paragraph 23(1)(a), it is necessary to determine whether Parliament’s intent was to alter parties’ rights and obligations retroactively. In these circumstances, I must therefore determine whether the principle of the non-retroactivity of statutes can be applied to the reverse onus of proof and the limitation period set out in the new Act in the context of this case.

[35]   The principle of the non-retroactivity of statutes is defined in AnAct respecting the interpretation of statutes and regulations, R.S., c. I-21 (Interpretation Act), which provides as follows in cases where an enactment has been repealed:

REPEAL AND AMENDMENT

42. (1) Every Act shall be so construed as to reserve to Parliament the power of repealing or amending it, and of revoking, restricting or modifying any power, privilege or advantage thereby vested in or granted to any person.

43. Where an enactment is repealed in whole or in part, the repeal does not

(a) revive any enactment or anything not in force or existing at the time when the repeal takes effect,

(b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder,

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,

(d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed, or

(e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d ),

and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.

***

Regarding the burden of proof

[36]   In this complaint, it appears that it was made under the previous statute (paragraph 23(1)(a) and that the parties assumed the obligations and responsibilities arising from it at the time of the hearing held before the former Board. A decision was rendered by the former Board on April 26, 2004 (2004 PSSRB 29). That decision was the subject of an application for judicial review before the Federal Court of Appeal, which was granted on March 8, 2005 (2005 CAF 92).   The Court set aside the decision of the former Board and referred the case back to it for a new hearing before a newly constituted tribunal. The question is to determine whether, in these circumstances, the new Board must apply the new scheme of rights and obligations to this complaint at the hearing that is held after the date of the coming into force of the new Act or whether the parties can rely on the principle of the non-retroactivity of statutes and obtain a decision from the new Board on the basis of the repealed statute.

[37]   Doctrine and case law have established certain criteria that can be used to distinguish between accrued rights and simple expectations. Pierre-André Côté’s The Interpretation of Legislation in Canada, 3 rd edition, published by Carswell Thomson Professional Publishing, makes two points that are particularly important with respect to the recognition of vested rights (page 161):

. . .

The courts require the individual to establish that his legal situation is tangible and concrete, rather than general and abstract, and that this situation was sufficiently constituted at the time of the new statute’s commencement.

. . .

[38]   At page 166 of the same document, referring to the decision of the Federal Court of Appeal in Picard v. Public Service Staff Relations Board, [1978] 2 F.C. 296 (C.A.), he explains:

. . .

In labour law, the referral of a dispute to an arbitrator and the laying of a complaint regarding discrimination in employment have justified survival of the earlier statute.

. . .

[39]   Since the complaint before us was made to the former Board and a Board member conducted the hearing prior to April 1, 2005, this means that the parties’ situation was constituted prior to the new Act coming into force, according to the rule established in Picard (supra). It seems clear that the legal situation of the parties in this complaint was tangible and concrete owing to their status as a party following the filing of the complaint and during the hearing before the former Board.

[40]   The fact that the decision of the former Board was subject to judicial review before the Federal Court of Appeal further concretized the rights, obligations and responsibilities of the parties with respect to the complaint made by Mr. Lamarche under paragraph 23(1)(a) of the former Act. Both entities considered the questions submitted to them by the parties within the context of the rights, obligations and responsibilities arising from the provisions of the former Act, thereby defining the legal situation between the parties. These facts meet the first criterion for recognizing vested rights as identified by Pierre-André Côté.

[41]   This legal situation was constituted, at the latest, on the date of the decision rendered by the Federal Court of Appeal under judicial review, that is March 8, 2005, prior to the date that the new Act came into force. This element meets the second criterion specified in doctrine that can be used to distinguish between genuinely vested rights and simple expectations, specifically, that the legal situation between the parties was constituted at the time that the new Act came into force.

[42]   It is especially interesting to note that the Federal Court of Appeal granted the application for judicial review on the basis of an error in law related to the refusal to accept certain facts in evidence. The Court states that the refusal of the former Board to consider the evidence of past events for the purpose of possibly showing an anti-union animus on the part of the respondent toward the complainant constituted a denial of natural justice. The Court noted that, [translation] “it is clear that this evidence is highly relevant, if not essential, to the question that the Board was required to decide, that is, an anti-union animus toward the applicant”.

[43]   Thus, the above-mentioned facts establish that the legal situation of the parties relative to the applicable evidentiary regime constitutes a vested right at the time that the new Act came into force, and especially with respect to the question of the evidence of events that may show an anti-union animus that is deemed to be essential by the Federal Court of Appeal. This burden of proof had to be assumed by the complainant under the former Act and must clearly be considered for the parties as rights, privileges, obligations or responsibilities acquired, accrued, accruing or incurred under the former Act and as set out in subsection 43(c) of the Interpretation Act.

[44]   The new Board must proceed with a hearing de novo of Mr. Lamarche’s complaint to allow him to adduce evidence of past events in order to possibly show an anti-union animus on the part of the respondent toward him. The consequence of the Federal Court of Appeal’s order is to return the parties to the state they were in prior to the hearing before the former Board on January 19, 2004. The Court’s order to proceed with a new hearing does not have as a consequence the creation of a new complaint before the new Board on different legal bases than those of the initial complaint of September 10, 2002.

[45]   Subsection 191(3) of the new Act introduces two new elements of law that were not part of the former Act. The first element creates a presumption of the respondent’s guilt by stipulating that a complaint made in writing alleging that the respondent has failed to   comply constitutes evidence of such failure. The second element is that the party that denies the failure is required to prove that the failure did not occur, which constitutes a shift in the onus of proof to the respondent. According to the provisions of the new Act, the complainant enjoys a presumption that the respondent took action that was prohibited and the complainant no longer has to prove said action. Thus, the new Act also alters the obligations imposed on the complainant by the former Act with respect to the evidentiary regime.

[46]   The inclusion of the presumption of the respondent’s guilt in the new Act fundamentally alters the rights, obligations and responsibilities of the parties when a failure to comply is alleged.   This element, set out in paragraph 191(3), establishes a complete defence, which is considered by case law to be a substantive element and not a simple procedure, the purpose of which is to determine the manner in which the defence (or the application) is to be presented. The Supreme Court of Canada explained the distinction between a substantive and a procedural provision in its ruling in Angus (supra). The Court comments as follows:

19.

. . .

A provision is substantive or procedural for the purposes of retrospective application not according to whether or not it is based upon a legal fiction, but according to whether or not it affects substantive rights. P.-A. Côté, in The Interpretation of Legislation in Canada (1984), has this to say at p. 137:

In dealing with questions of temporal application of statutes, the term “procedural” has an important connotation: to determine if the provision will be applied immediately [i.e. to pending cases], . . . “the question to be considered is not simply whether the enactment is one affecting procedure but whether it affects procedure only and does not affect substantial rights of the parties.” [Quoting DeRoussy v. Nesbitt (1920), 53 D.L.R. 514, 516]

20. In the present case, it is difficult to see how procedure is being affected at all. The provision in question provides a complete defence to an action. Whatever may be the reasons for this, and whether one agrees or disagrees with them, the provision of a complete defence to an action, just as much as the creation of a cause of action itself, is a substantive matter.

21. Even if one assumes that the provision in question is procedural in some sense, the judicially created presumptions regarding the retrospective effect of procedural rules were not devised with this sort of distinction in mind. Normally, rules of procedure do not affect the content or existence of an action or defence (or right, obligation, or whatever else is the subject of the legislation), but only the manner of its enforcement or use. P. St. J. Langan, Maxwell on Statutory Interpretation (12 th ed. 1969), at p. 222, puts the matter this way:

The presumption against retrospective construction has no application to enactments which affect only the procedure and practice of the courts. No person has a vested right in any course of procedure, but only the right of prosecution or defence in the manner prescribed for the time being, by or for the court in which he sues, and if an Act of Parliament alters that mode of procedure, he can only proceed according to that altered mode.

Alteration of a “mode” of procedure in the conduct of a defence is a very different thing from the removal of the defence entirely. The latter is in essence an interference with a vested right.

22.      This is the reason for the judicially-created exception for limitations statutes. Although in some sense “procedural”, they will not be presumed to have retrospective effect since they may deprive a plaintiff of a right of action which he had at the time of the passage of the legislation; . . .

[47]   Subsection 191(3) of the new Act establishes a presumption of the respondent’s guilt that did not previously exist. This new element fundamentally alters the rights, obligations and responsibilities of the parties that were set out in the former Act and in case law. This question does not pertain to how a hearing is conducted but assigns a legal presumption to the respondent that affects the latter’s defence.

[48]   The precedents of the Canada Labour Relations Board cited by the respondent cannot be applied to this case, and the June 1, 1978 amendment to subsection 188(3) of the Canada Labour Code does not alter in any way the presumption of guilt that was already set out in the 1972 Act. The former and new legislation reads as follows:

In the 1972 Act

188.(3) A complaint in writing made pursuant to section 187 in respect of an alleged failure by an employer or any person acting on behalf of an employer to comply with paragraph 184(3)( a ) is evidence that the employer or person failed to comply with that paragraph.

In the June 1978 Act

188.(3) Where a complaint is made in writing pursuant to section 187 in respect of an alleged failure by an employer or any person acting on behalf of an employer to comply with subsection 184(3), the written complaint is itself evidence that such failure actually occurred and, if any party to the complaint proceedings alleges that such failure did not occur, the burden of proof thereof is on that party.

[49]   The presumption of the respondent’s guilt is present in both subsections cited. Although the wording is different in the 1978 statute, the presumption of guilt set out in the 1972 statute is maintained. The addition that the burden of proof is borne by the party that denies the failure occurred merely clarifies what was implicit in the earlier statute, because the onus is on the person presumed guilty to rebut that presumption in order to exonerate himself. Both statutes make it clear that the complainant does not have to prove that his allegations are founded.

[50]   This situation differs from the present case in that the presumption of guilt is a new element in the Public Service Labour Relations Act that came into force on April 1, 2005.

The time period in subsection 190(2) of the new Act

[51]   The 90-day limitation period set out in subsection 190(2) is new law, since the former Act did not stipulate any period for the filing of a complaint of unfair labour practice. Case law had established that complaints must be filed within a reasonable period, which, depending on the circumstances, is around six months from the date of knowledge of the events giving rise to the complaint.

[52]   Both doctrine and case law have established that the effect of the application of a new rule on the case at issue must be evaluated to determine whether it is a simple question of procedure or if it affects the rights of the parties. The principle developed by the Supreme Court of Canada in Martin (supra), which was reiterated in The Interpretation of Legislation in Canada by author Pierre-André Côté (supra), is to the effect that if the application of the new time period results in the loss of a right that existed under the former Act or revives a right that no longer existed at that time, it is not a simple matter of procedure. Applying this principle to complaints made under the former Act means that the 90-day period must be deemed to affect the rights of the parties if it results in the loss of the vested right to make a complaint or it revives a right to make a complaint that was prohibited.

[53]   Thus, the principle of the non-retroactivity of statutes must be applied when the new time period alters the vested rights of the parties to make a complaint at the time that the new Act came into force. In practice, the 90-day period could be considered purely procedural, and therefore of immediate application, only if its effect were solely to extend or reduce the length of the period within which a complaint could be filed, without that right being removed or restored.

[54]   In the case before us, the new 90-day period cannot be applied if it has the effect of removing Mr. Lamarche’s vested right to make his complaint. That right has been vested in him since September 10, 2002 and it has not been contested at any stage of the proceedings to date.

[55]   The March 8, 2005 decision by the Federal Court of Appeal “referred the case back” to the former Board for a new hearing before a newly constituted tribunal. That decision places the parties back in the situation they were in prior to the hearing held by the former Board in January 2004 and does not have the effect of creating a new complaint as of the date of the ruling. Even if such were the case, the “new complaint” would be dated March 8, 2005. The ruling of the Federal Court of Appeal therefore does not create a new complaint, which would be based on the Act in force as at April 1, 2005, but merely refers the complaint instituted under the former Act back to the former Board for a new hearing, since the former Board was still in place on March 8, 2005.

[56]   To apply the new statute, and the provisions of subsections 190(2) and 191(3) in particular, to this case would be contrary to the principle of interpretation that states that statutes do not have retroactive effect, unless clearly stipulated by Parliament. If Parliament had wanted to retroactively alter the rights and obligations of the parties with respect to complaints made under paragraph 23(1)(a) of the former Act, it would have clearly stated so, as it has done for complaints made under paragraphs 23(1)(b) and 23(1)(c).

[57]   Furthermore, the rule for the interpretation of statutes clearly stipulates that the repeal of a statute does not have an effect on investigations, legal proceedings or remedy related to rights, privileges, obligations or liability acquired, accrued, accruing   or incurred by the parties (subsection 43(e)). Section 43 of the Interpretation Act clearly states that any investigation, legal proceeding or remedy may be instituted and continued as if the enactment had not been repealed.

[58]   Section 39 of the transitional provisions leaves some doubt as to its scope, as mentioned earlier. In these circumstances, it must be interpreted restrictively. This principle is stated as follows in The Interpretation of Legislation in Canada (supra):

It should be no surprise that the courts, having traditionally resisted legislative change, apply a rule of strict interpretation to amendments which operate retroactively. The general principle calls for restrictive interpretation of retroactive legislation. When in doubt, the meaning which most limits a statute’s retroactive effect should be preferred: “…you ought not to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the legislature meant”.

The courts have applied this principle on a number of occasions. In Kent v. The King, concerning a retroactive fiscal statute, Justice Duff stated:

…where an enactment, admittedly retrospective, is expressed in language which leaves the scope of it open to doubt, and according to one construction it imposes retrospectively a new liability, while upon another at least, equally admissible, it imposes no such burden, the latter construction is that which ought to be preferred.

[59]   In these circumstances, the limitation period and the presumption of the respondent’s guilt are substantive rules creating rights and obligations of a substantive nature and may not be applied to this complaint. Accordingly, this complaint will be decided on the basis of the rights and obligations arising from the wording of the former Act (R.S.C. (1985), c. P-35), as though it had not been repealed.

[60]   For all of the above reasons, the Board makes the following order:

Order

[61]   The complaint made by Mr. Lamarche will be decided on the basis of the rights and obligations arising under the Public Service Staff Relations Act, R.S.C. (1985), c. P-35, as though it had not been repealed.

[62]   The Board shall set a hearing date for the continuation of this matter before me as soon as possible.

October 28, 2005.

P.S.L.R.B. Translation

Léo-Paul Guindon,
Board Member