FPSLREB Decisions

I. Application before the Board

1 This is the third decision issued by the Public Service Labour Relations Board (“the Board”) under subsection 123(1) of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“the Act”) on matters that may be included in an essential services agreement (ESA) covering positions in the Computer Systems (CS) Group. It arises from an application by the Treasury Board (“the applicant”) filed on August 12, 2008. The respondent is the Professional Institute of the Public Service of Canada, the certified bargaining agent for the CS Group.

2 Previously, the Board considered whether, and how, it should define the essential services performed by positions in the CS Group at Elections Canada and at the Canada Border Services Agency (CBSA). My former colleague, Board Member John Mooney, rendered decisions respectively in Treasury Board v. Professional Institute of the Public Service of Canada, 2009 PSLRB 120, and Treasury Board v. Professional Institute of the Public Service of Canada, 2009 PSLRB 128 (“the CBSA decision”). The respondent filed an application for judicial review of the latter decision (FCA File No. A-462-09). That application remains pending.

3 Board Member Mooney has left the Board to take up the duties of Vice-Chairperson of the Public Service Staffing Tribunal. The Chairperson of the Board has appointed me as a panel of the Board to continue to hear and determine matters arising from the application.

4 The subject matter of this decision is the definition of the essential services, if any, that are performed by CS Group positions at the Department of Public Safety and Emergency Preparedness (“Public Safety Canada”). Specifically, the applicant proposes that the Board identify as essential for public safety or security certain services or activities performed by CS positions in the Government Operations Centre (“the GOC”) of Public Safety Canada, including the Canadian Cyber Incident Response Centre (CCIRC), a division of the GOC.

II. Summary of the evidence

5 The applicant led evidence through the following two witnesses from Public Safety Canada: Daniel Lavoie, Associate Assistant Deputy Minister for Emergency Management and National Security, and Craig Oldham, Acting Associate Director General, Operations Directorate (GOC).

6 The respondent did not call any witnesses.

7 I accepted the redaction of several brief references in the 22 exhibits filed during the hearing. The information redacted consisted of sensitive contact details for the GOC, which are not generally available to the public. The redacted information has no evidentiary value for determining the issues examined in this decision.

8 Mr. Lavoie addressed the policy and organizational framework within which incumbents of CS positions in the GOC perform services that the applicant claims are essential. The GOC is situated within the Operations Directorate of the Emergency Management and National Security Branch of Public Safety Canada. The department itself was created in December 2003 to address the need for a more cohesive, government-wide capacity to plan for, and respond to, emergencies in the wake of events such as the “9/11” terrorist attacks and the August 2003 black out. Its creation reflected many of the same considerations that led the United States government to establish the Department of Homeland Security during the same period.

9 The Emergency Management Act, S.C. 2007, c. 15, outlines the lead responsibility of the Minister of Public Safety and Emergency Preparedness for “emergency management” — defined in section 2 as “… the prevention and mitigation of, preparedness for, response to and recovery from emergencies.” Mr. Lavoie described the GOC as the department’s key organization for accomplishing the following mandates assigned to the Minister under the Emergency Management Act:

…

4.(1) The Minister’s responsibilities under section 3 include

…

(d) monitoring potential, imminent and actual emergencies and advising other ministers accordingly;

(e) coordinating the Government of Canada’s response to an emergency;

…

(h) coordinating the provision of assistance to a province in respect of a provincial emergency, other than the provision of financial assistance and the calling out of the Canadian Forces for service in aid of the civil power under Part VI of the National Defence Act;

(i) providing assistance other than financial assistance to a province if the province requests it;

…

(k) participating, in accordance with Canada’s foreign relations policies, in international emergency management activities;

…

(n) conducting exercises and providing education and training related to emergency management;

…

(r) facilitating the authorized sharing of information in order to enhance emergency management.

…

10 Public Safety Canada’s Performance Report for the period ending March 31, 2009 (Exhibit E-3), summarizes at page 20 the department’s “Emergency Management Program Activity” as follows:

…

[It] addresses all hazards (natural, technological and human-induced) through the development of an integrated emergency system supported by relevant legislation and strategies, and by targeted training and safety standards designed to protect Canada and Canadians. This program activity aims to achieve effective policy and program coordination and delivery across the four pillars of emergency management — prevention/mitigation, preparedness, response and recovery. It does so through close collaboration with international counterparts, federal departments, provincial and territorial governments, the first responder community and industry.

…

In Mr. Lavoie’s words, the GOC is the one organization that supports most of the emergency management activities necessary for achieving the single strategic outcome of a safe and resilient Canada.

11 Mr. Lavoie described the Federal Emergency Response Plan (FERP) (Exhibit E-4) as the all-hazards plan for coordinating the federal response to emergencies where an integrated Government of Canada response is required. The Director General of the Operations Directorate has the authority to initiate such a response. An integrated response may also occur under any of the following circumstances listed at page 4 of the FERP:

…

• a province/territory requests federal support to deal with an emergency;
• an emergency is of such a magnitude that it impacts multiple jurisdictions and/or departments, and coordination of the response is required;
• an emergency directly involves federal assets, services, employees, statutory authority or responsibilities or impacts confidence in government; or
• aspects of the national interest are affected by an emergency.

…

12 The strategic objectives of the FERP are to save lives, protect property and the environment, maintain law, order and national security, maintain public confidence, and reduce economic and social losses. Among those objectives, saving lives is the first priority, according to Mr. Lavoie. Several types of emergencies can directly result in a loss of lives, as can disruptions to critical infrastructures (Exhibit E-2). Mr. Lavoie stated that there is a very strong expectation among Canadians that the government “will be there” when emergencies occur and that it will minimize the human misery associated with such emergencies. The FERP states as follows at page 3:

…

Canada’s risk environment includes the traditional spectrum of natural and human-induced hazards (i.e. wildland and urban interface fires, floods, oil spills, hazardous material releases, transportation accidents, earthquakes, hurricanes, tornadoes, disease outbreaks or pandemics, major power outages, and cyber incidents) as well as the risk of terrorism.

…

… emergencies have the potential to affect the lives, critical infrastructure, property, environment, economy and national security of Canada and its citizens, its allies and the international community. Within this context, it is the expectation of every Canadian that the federal government, in cooperation with provinces/territories, non-governmental organizations, and the private sector, is prepared to respond to emergencies that can escalate from the local and/or provincial/territorial level to the national level.

…

According to the FERP at page 7, the GOC is the “… principal location where subject matter experts and liaison officers from government departments, non-governmental organizations and the private sector …” interact to provide the required integrated Government of Canada response.

13 In cross-examination, Mr. Lavoie described the mandates of the Deputy Minsters’ National Security Committee and the Assistant Deputy Ministers’ Emergency Management Committee (ADMEMC). The former committee is a sounding board for ideas about streamlining and better coordinating national security activities, including emergency management. It may be active during an emergency if there is a need for government-wide decisions or a need to involve ministers. The ADMEMC meets monthly, provides operational input and direction for the work performed by the GOC, and may establish smaller groups to address particular situations or problems (such as security for the 2010 Olympic Winter Games).

14 Mr. Lavoie also described the financial management role performed by the GOC. During an emergency, the GOC tracks the costs of providing a federal government response — to account later for “who pays what.” Emergency expenditures may be borne by departments and then recovered through a Treasury Board submission or, in some cases, may fall directly to the GOC. The GOC also plays a key role in purchasing goods and services during an emergency.

15 Mr. Lavoie testified that the GOC has an authorized FTE (full-time equivalent) personnel complement of 120, with 75 to 85 positions currently staffed. Occupants of those positions work on shifts in 5 teams. Another 45 to 50 people work “outside the room” in planning and risk assessment roles.

16 Mr. Oldham reviewed organization charts covering CS positions in the GOC (Exhibit E-6). He stated that there were 136 CS positions in Public Safety Canada as of November 2009 and that the applicant proposed to designate 29 of those positions as required to provide essential services in the GOC and its CCIRC division. The GOC became operational on May 1, 2004. Previously, no department or agency had the mandate or skills to coordinate emergency responses effectively on a government-wide basis. Decision-making processes were of an ad hoc nature. According to Mr. Oldham, the GOC now gives Canada a “huge advantage.” Few other countries have the same type of single point of contact for coordinating emergency management activities for both public and private entities, domestic and international.

17 The different divisions of the GOC, including the CCIRC, are “enmeshed” in a single large workspace with staff interacting in flexible teams. The CCIRC also has a separate, adjacent laboratory for certain activities. The work environment is fully secured, with redundant communications capacities connecting the GOC to federal government departments and agencies, provincial government ministries, other international governments, and non-governmental organizations. Increasingly, communications are conducted using live chat networks. The GOC operates with the same level of staff on a “24/7” basis, backed up by further employees on call. It receives support both from CSs in the corporate component of the department as well as from CSs who work directly within the GOC maintaining, running and activating pieces of equipment.

18 Mr. Oldham depicted the activities of the GOC by referring to the following “statistics” (Exhibit E-7):

• the GOC monitors and assesses an average of 3500 incidents a year to determine their potential to require national-level coordination;
• in 2007, 2008 and 2009 (through November 24), it exercised national-level coordination of events 56, 68 and 73 times respectively (Exhibit E-8);
• separately, the CCIRC issued over 145 products in 2008 related to situational awareness in the cyber environment; and
• the CCIRC handled and coordinated 167 incidents in 2008 related to cyber infrastructure in the public and private sectors.

19 GOC staff have the direct responsibility to determine, based on established criteria, when “an incident” (a piece of information flagged as something that could potentially “go badly” and affect the national interest) requires the federal government to assume a coordinating national role (“an event”). The GOC rarely operates with only one active event. Events may be managed for periods varying from a few minutes to months.

20 As the “… single no-fail centre on which everyone else depends,” the GOC accomplishes all seven primary emergency-management functions listed in the FERP at page 13 — management, operations, situational awareness, risk assessment, planning, logistics, and finance and administration. The internal divisions within the GOC are aligned with those functions. When an event involves or includes a cyber component, the CCIRC is integrated into the process.

21 Mr. Oldham illustrated the nature of the risks faced by Canadians and the GOC’s role coordinating the federal government’s response to those risks with the following examples: (1) the evacuation of Canadians from Lebanon during the conflict with Israel in the summer of 2006 (Exhibit E-9); (2) the aviation security situation that led to restrictions on carry-on liquids and gels (Exhibit E-10); (3) a propane explosion in Toronto in August 2008 (Exhibit E-8); (4) flooding in the St. John River valley in 2008 (Exhibit E-14); (5) an earthquake in British Columbia on November 17, 2009 (Exhibit E-15); and (6) the re-entry of an SL-4 rocket body on November 13, 2009 (Exhibit E-16). Mr. Oldham also described a selection of terrorist events affecting Canada or Canadians as disclosed in unclassified information generally available to the public (Exhibits E-11 and 12). He also reviewed a recent “Bi-annual Update on the Threat from Terrorists and Extremists” prepared by the federal government’s Integrated Threat Assessment Centre and distributed by the GOC to federal departments and agencies, the provinces/territories and municipal law enforcement agencies (Exhibit E-13).

22 For several of the described events, Mr. Oldham outlined the contributions of the incumbents of CS positions within the GOC and the CCIRC. For example, in the case of the St. John River flood, CSs were heavily involved in the production and communication of geomatics and satellite information products that assessed the extent and nature of the threat to life and property. Some of the products were developed and disseminated using unique computers, computer applications and communications facilities within the GOC supported by CSs. In the rocket body re-entry situation, CSs supported the equipment that was used to estimate and map its probable point of surface impact as well as the equipment for communicating that information digitally to affected partners. In Mr. Oldham’s view, the federal government could not manage an integrated response to those and other events without the GOC that, in turn, cannot do its job without the equipment and capabilities supported by CS staff.

23 Mr. Oldham turned to discussing CS positions in the CCIRC, which was formed in February 2005 to provide a centralized focus for developing awareness of, and the ability to respond to, the increasing incident of cyber threats. The CCIRC is staffed principally by CSs hired because of their knowledge of how to identify cyber threats and how to respond to them. The CSs in the CCIRC are users of equipment rather than equipment supporters. Private and para-public organizations report cyber threats to the CCIRC. CS staff analyze those threats and develop and distribute information products advising partners how to respond. The products may provide “patches” for particular types of software or other mitigation strategies. Exhibit E-17 summarized the general function as follows:

…

… CCIRC monitors, analyzes and coordinates the Government of Canada’s response to cyber attacks and threats that affect Canada’s critical information infrastructure. This is accomplished through the sharing of a common situational awareness of the cyber environment with federal departments/agencies, international counterparts, provincial and territorial partners, non-government organizations and the Canadian critical infrastructure community.

While the GOC is focused on strategic level (whole of government) response to all-hazards events; CCIRC is focused on operational level, cyber-only whole of government response. Significant cyber events may grow to become strategic in which case the GOC will assist CCIRC (and other partners) with managing the national response.

…

24 The CCIRC operates at the secret level, with top-secret capabilities as required. It uses unique equipment to monitor, analyze and triage “threat vectors” on the Internet. While hackers comprise a significant component of the threat, it also includes criminal and terrorist-driven attacks that aim to bring harm to the country and its people. According to Mr. Oldham, cyber attacks can be precursors to a physical attack, and the threats bear the potential of causing loss of life. He noted that the CCIRC is not involved in intelligence gathering but focuses instead on the technical aspects of cyber threats. It works closely with analogous organizations in the United Kingdom, the United States, Australia and New Zealand.

25 Mr. Oldham described two cyber threat events to illustrate the role played by the CCIRC and its CS staff. In the first example, staff produced a series of technical products for technical users in Canada designed to counter the “Conficker Worm” package — a virus which, when activated, could stop important computer functions, principally in the defence and health sectors (Exhibit E-18). While no effects of the threat were ultimately felt in Canada, in several other countries defence services were grounded by the virus and MRI (magnetic resonance imaging) machines were taken off-line in hospitals. In a second example, the cyber threat focused principally on a particular type of SCADA (supervisory control and data acquisition) device, used primarily in the oil, gas and nuclear power sectors (Exhibit E-19). Here too, CSs developed technical documents on responding to the threat that were distributed through the GOC to infrastructure partners in the affected sectors.

26 Mr. Oldham completed his examination-in-chief by discussing a document produced by the applicant listing the equipment used by CSs in the GOC and the CCIRC (Exhibit E-20). Counsel for the applicant explained that his client takes the position that it should not have to lead such evidence because the applicant has the exclusive right to choose equipment, and the Board has no jurisdiction to limit that choice. Nonetheless, the applicant proffered the list because the Board has previously required production of such evidence.

27 Mr. Oldham described the list as a “current snapshot in time.” The equipment used by CSs is constantly evolving and changing, and the list may not be accurate even in one month’s time. Mr. Oldham cited several of the listed items (items 9, 13, 33 and 36) as examples of equipment that have either just been newly introduced or that will shortly be changed or replaced.

28 The respondent cross-examined Mr. Oldham at considerable length. Its cross-examination included a series of questions about a number of “Position Proposal and Analysis Forms” for CS positions identified by the applicant at some earlier stage in its pre-hearing discussions with the respondent as performing essential services. Other than to establish the general fact that there are linkages between the duties described in the different position forms and items found on the list of equipment discussed above (Exhibit E-20), I viewed the evidence as providing only limited assistance to my decision. I am not at this stage examining which specific CS positions at Public Safety Canada perform essential duties. That is a determination to be made by the parties or by the Board at a later date. Until the essential services performed by CSs (if any) are defined as a first-order matter, it remains possible that all, some or none of the positions discussed by the respondent will eventually be identified in an ESA. Once I issue my decision in this case, a number of other determinations will follow, consistent with the analytical path outlined in Public Service Alliance of Canada v. Parks Canada Agency, 2008 PSLRB 97 (“the Parks decision”). It may be that my first-order ruling in this decision will lead the parties to look at other positions or to examine the 29 positions in a different light.

29 Among the other areas canvassed in the cross-examination, I found that the following points aided my understanding of the situation:

• The corporate service functions performed by CSs include testing software and hardware, installing and maintaining software, repairing devices, identifying, investigating and resolving compatibility issues, and directing technical support. Corporate service CSs provide support to the entire department for all mandates, including the GOC.
• Each type of equipment (Exhibit E-20) has a different maintenance schedule, and some maintenance activities are dictated by the threat environment. There cannot be downtime. Maintenance or repairs cannot be delayed if there is a risk that the equipment will fail. There is, in Mr. Oldham’s words, “zero tolerance for failure.”
• Mr. Oldham reconfirmed that CSs at the CCIRC monitor, analyze and assess cyber security risks, support processes for cyber emergency reporting, respond to cyber threats and attacks, review and develop incident and technical reports, and deliver (pre-emptively and reactively) security programs for organizations that encounter security threats.
• Not everything that CSs do is essential. Otherwise, the applicant would propose that all CS positions perform essential services.
• With the possible exception of items such as internal gateway and Internet wiring support and printer queue support, all the equipment associated with the essential services performed by CS positions appears in Exhibit E-20.
• CSs use other equipment not listed in Exhibit E-20, such as microphones and projectors, but such equipment is not linked to essential services.
• Each piece of equipment listed in Exhibit E-20 experiences changes or evolves.
• Some items in the list of equipment change less often, such as items 14 (cable television), 16 (email and Blackberry services), 21 (Translation Bureau Portal) and 23 (Microsoft Office Suite).
• Other new items are being planned or deployed such as the “SCIP,” a new classified information system for government-wide use.
• SAP is a tool used by the GOC to manage the financing of its essential activities when there is an event of national interest.

III. Summary of the arguments

30 The applicant proposes that the Board declare as follows:

All services delivered by or activities performed by certain CS Group positions at the Department of Public Safety and Emergency Preparedness in support of managing the integrated Government of Canada response to emergencies are necessary for the safety or security of the Canadian public.

31 The respondent proposes the following definition:

Essential services and activities are:

1. With regard to the CCIRC and the GOC and its branches, support services (namely (a) the installation, testing and maintenance, (b) identifying, investigating and resolving compatibility issues and malfunctions, and (c) direct technical assistance) for 34 of the 35 functions performed by the software, systems, applications and devices presented by the employer (Exhibit E-20) to the extent that such work is already performed by the CS’s. Any services and activities related to the SAP applications are not essential.
2. In association with the CCIRC, analysis and risk assessment, planning for cyber response, processing cyber emergency reporting, responding to cyber threats and attacks, reviewing and developing incident and technical reports, and delivering security programs for cyber threats.

A. For the applicant

32 The applicant argues that it does not need to lead empirical evidence to prove the existence of threats to Canada and Canadians. The Board may accept the existence of those threats by applying common sense and judgment: Tobin v. Canada (Attorney General), 2009 FCA 254, at paragraphs 60 and 62. Nonetheless, the witnesses provided concrete examples of recent emergencies and threats. In the applicant’s submission, the evidence is uncontradicted that Canada is subject to a number of natural, technological and human-induced hazards or disasters. They include wild land and urban-interface fires, floods, oil spills, hazardous releases, transportation accidents, earthquakes, hurricanes, tornadoes, disease outbreaks or pandemics, major power outages, cyber attacks, and terrorist attacks.

33 The Government of Canada manages its integrated response to those hazards and disasters through the GOC and the CCIRC.

34 On an ongoing “24/7” basis, the GOC proactively monitors, validates, assesses, analyzes, plans for and reports on risks and emergencies. On behalf of the government, it coordinates responses to events of national interest, both in Canada and abroad, allowing the government to bring into play all its assets and capabilities. The GOC is the single point of contact — the government’s “911” and “411” — that cannot fail.

35 The CCIRC is also responsible on a “24/7” basis for the proactive monitoring of, the validating of, the assessing of, the analyzing of, planning for, reporting on, issuing alerts, advisories and information about, and managing an integrated response to various cyber threats, attacks and vulnerabilities affecting Canada and Canadians.

36 Positions in the CS Group play a paramount role in the government’s integrated management of emergencies. Occupants of those positions are directly responsible for delivering the services provided by the CCIRC, as described above. In addition, they are responsible for supporting the critical equipment that allows both the GOC and the CCIRC to function. If that equipment does not work, the GOC and the CCIRC cannot operate to fulfill their essential mandates.

37 In the event of an emergency, there would be significant potential risks to the health and safety of Canadians should the GOC and the CCIRC be non-operational due to the absence of CSs. Such circumstances could potentially result in avoidable injuries to Canadians and avoidable loss of Canadian lives. They could also result in avoidable disruptions or damage to Canada’s critical infrastructure, which could, in turn, cause injuries and loss of life.

38 The applicant’s burden is to prove that, on a balance of probabilities, the services and activities performed by the CS positions that it has identified are essential to the safety or security of the public. As confirmed by the Supreme Court of Canada, the “balance of probabilities” standard is the only applicable standard: F.H. v. McDougall, 2008 SCC 53, at paragraph 49. The Board’s previous ESA decisions have explicitly embraced that standard: see, for example, in the Parks decision, at paragraph 180, and Public Service Alliance of Canada v. Treasury Board (Program and Administrative Services Group), 2009 PSLRB 55 (“the Service Canada decision”), at paragraph 70.

39 The Parks decision — the Board’s first case under subsection 123(1) of the Act — also established two fundamental principles. First, the protection of the public interest is the Board’s paramount concern in deciding matters to be included in an ESA: at paragraph 176. Second, the Board must err on the side of caution when it determines essential services: at paragraph 179.

40 The Board adhered to the requirement to err on the side of caution when it stated as follows in the Service Canada decision, at paragraph 102:

102 Even though this Board is unable to quantify the extent or immediacy of the potential risk to the economic security of the public based on the evidence before it, it cannot safely conclude that there is no such risk or that the risk is too minor to justify a ruling in favour of the respondent. Although limited and largely indirect, the respondent has offered evidence that is sufficient to establish the reasonable possibility that the assistance provided by CSOs to at least some members of the public who visit SCCs is necessary for their economic security…

The applicant submits that the same type of approach should be taken in this case.

41 The applicant also refers the Board to the CBSA decision, at paragraph 167, where the Board found “ample uncontradicted testimonial evidence” of risks to the safety and security of the public. The applicant asserts that the evidence led in this case as proof of risks to public safety or security should be viewed as analogous to what was accepted by the Board in the CBSA decision.

42 In Federal Government Dockyards Trades and Labour Council (Esquimalt, B.C.) v. Treasury Board (Ship Repair Group - West Coast), PSSRB File No. 181-02-182 (19850109), the (then) Public Service Staff Relations Board recognized that employees who support equipment can be designated as essential for public safety or security. The requirement that the GOC and the CCIRC remain operational in this case reflects the same need “[t]o maintain … a state of readiness…” on which the previous Board based its decision: at paragraph 43.

43 The CBSA decision also confirms the proposition that positions that support equipment can be found to encompass essential services or activities.

44 The applicant contends that the parties agree that the work performed by some of the CSs at Public Safety Canada is essential. The applicant has met its burden of proof. The parties disagree only on how to define the essential services or activities.

45 The applicant argues that the definition should be based on the actual services supported by the equipment that CS employees use, as opposed to the equipment itself. It takes that position for the following reasons.

46 First, the Board does not have jurisdiction to interfere with the applicant’s exclusive statutory authority to determine the equipment that it uses in its operations when it defines essential services. The Board’s powers are specifically limited under the Act. Paragraphs 121(2)(b) and 123(6)(b), for example, read as follows:

          121.(2) For the purposes of subsection (1), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined

…

(b) on the basis that the employer is not required to change, in order to provide the essential service during a strike, the manner in which the employer operates normally, including the normal hours of work, the extent of the employer's use of overtime and the equipment used in the employer's operations.

…

          123.(6) For the purposes of subsection (5), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined

…

(b) on the basis that the employer is not required to change, in order to provide the essential service during a strike, the manner in which the employer operates normally, including the normal hours of work, the extent of the employer's use of overtime and the equipment used in the employer's operations.

47 As a matter of law, the applicant disagrees with the Board’s finding in the Parks decision and in the CBSA decision that the Board is not constrained by provisions such as paragraphs 121(2)(b) and 123(6)(b) of the Act when it defines essential services. In the applicant’s view, an equipment-based definition of essential services is contrary to the scheme of the Act, the object of the Act and the intention of Parliament. Were the Board to tie the definition of essential services to equipment, contrary to the statutory scheme, its decision would have the effect of tainting subsequent determinations of the types of positions, number of positions and specific positions required to perform the identified essential services.

48 Second, equipment is not a “service, facility or activity” within the meaning of subsection 4(1) of the Act. In the CBSA decision, the Board concluded that items on a list equivalent to the list of equipment found in Exhibit E-20 in this case were not services or activities. The Board wrote as follows at paragraph 158:

158    Nor do I believe that the 38 items listed in Exhibit E-9 are services or activities within the meaning of subsection 4(1) of the PSLRA. They are computer systems or applications or equipment. ACROSS, item 1 in Exhibit E-9, for example, is a computer information system that gathers and processes information from several databases about people and goods that enter Canada. CANPASS (the system component, item 6 in Exhibit E-9) is a computer information system that uses iris-recognition biometric technology to verify the identities of people in airports. The IMS, item 10 in Exhibit E-9, is an intelligence sharing and risk management computer system that shares and analyzes data on the movement of people and goods across the border. The same is true of the “General IT Network Support,” item 34 on Exhibit E-9, which, as described in Exhibit B-5, is basically referring to a server, as contented by the applicant.

49 Third, the service-based approach advocated by the applicant is consistent with the Board’s previous determinations in the Parks decision, the Service Canada decision, and the “Border Service Officer” decision (Public Service Alliance of Canada v. Treasury Board, 2009 PSLRB 155). The definition proposed by the applicant reflects the “simplified approach” outlined by the Board in the Service Canada decision, in particular, as follows:

…

106    An ESA, however, need not be cast at the same level of detail as is appropriate for a job description… The description of an essential service in an ESA exists for a quite different purpose. It needs to be sufficiently specific to identify what major functions should continue in the event of a strike as well as to facilitate determinations about other required content elements in an ESA — mainly, the final number of positions that will be necessary to provide the essential service should strike action occur. To that end, the Board does not expect that ESAs will necessarily look like a collection of excerpts from classification documents.

…

The same simplified approach is apparent in the CBSA decision, at paragraph 170, and the Border Service Officer decision, at paragraph 51. The respondent’s equipment-based definition does not conform to that approach.

50 Fourth, the applicant’s approach is practical. It is based on the services that are supported by the equipment, not the equipment itself. The evidence is clear that the equipment used in the GOC and the CCIRC constantly evolves, even on a monthly basis. The list found in Exhibit E-20 is only a “snapshot in time.” Mr. Oldham testified conclusively that many of the component items in Exhibit E-20 either have been changed recently or have recently provided new functions and capabilities (see items 13 to 16, 22, 24, 25, 27 and 33 to 36). Other new equipment, such as the SCIP, will be coming soon. A definition of essential services that depends on a “snapshot” list of equipment is simply impractical, as recognized in the CBSA decision, as follows:

…

160    The respondent argues that the essential services are the activities performed by CS employees to support the computer systems listed in Exhibit E-9. Specifically, the provision of support to each of the 38 computer systems by CS employees is a distinct essential service or activity. In my view, that approach is not reasonable. An essential service should not be tied so narrowly to a piece of equipment or system that is only part of a vast network of computers that manage information. To do so would force the parties to amend the ESA each time they replace one of those 38 computer systems or add a new one. An ESA must be able to sustain changes in components of an information network composed of different computer systems without having the parties amend the ESA each time a new computer system is introduced.

…

165    I believe that it is possible to define the essential services in a manner that reflects the fact that both the applicant and the respondent agree that it is necessary to protect Canadians against persons and goods that pose a risk to the safety and security of the public, that would only capture services or activities that are related to those purposes, that would not be tied narrowly to equipment, and that would enable the parties to identify the other elements of the ESA. Defining essential services in the following manner would attain those goals:

The provision of computer systems and services related to securing the border by managing the access of people and goods (including food, plants and animals) to and from Canada for the purpose of protecting the safety or security of the public.

… The above wording would also allow the applicant to change computer systems or equipment when required since the definition is not narrowly tied to equipment or systems…

…

51 Fifth, the facts in evidence do not support an equipment-based definition of essential services. The CS positions identified as performing essential services do not just support equipment. In the CCIRC, CS positions are directly responsible for delivering services. An equipment-based definition neglects that reality.

52 For those reasons, the applicant argues that the Board must base its definition of essential services on the actual services provided by the equipment as opposed to the equipment itself. It urges the Board to accept the applicant’s proposed definition.

B. For the respondent

53 The respondent does not contest the evidence led by the applicant about the types of risks to which the GOC and the CCIRC respond. It argues instead that that evidence is not helpful for determining what CSs should do in the event of a strike.

54 The evidence shows that, within Public Safety Canada, only the emergency management work delivered through the GOC and the CCIRC comprises an essential service. There are other aspects of the “Emergency Management” program, identified in Public Safety Canada’s Performance Report (Exhibit E-3, page 9) that are not essential. Among those non-essential elements are the day-to-day activities of the Deputy Ministers’ National Security Committee and the ADMEMC and the financial management activities involved in tracking costs and allocating financial responsibilities after an event. All CSs perform some non-essential work more broadly in support of the GOC, the CCIRC and Public Safety Canada.

55 As to the work performed by CSs that is essential, the respondent contends that it can be divided into two types. The first category involves more traditional CS duties supporting the software, systems, applications and devices listed in Exhibit E-20 (other than SAP) as performed by CS positions in corporate IT services and within the GOC. Those support services involve a finite list of activities: installing, testing, maintaining and repairing software, systems, applications and devices; identifying, investigating and resolving compatibility issues; and direct technical support.

56 The evidence provided by Mr. Oldham on the first category of essential work established that the functions performed by the “equipment” listed in Exhibit E-20 are the only functions that can be linked to essential services. The evidence further established that the items listed as 5 through 35 in Exhibit E-20 are subject only to mild change. Other than item 13, which is a recently introduced new function, the respondent contended that other items were either stable or had incorporated expanded capabilities while maintaining stable core functions.

57 The second type of essential service is the work performed by CSs in the CCIRC. For that work, the respondent’s definition of essential services is similar to the applicant’s description. CSs in the CCIRC perform unique work. The evidence demonstrates that they are involved in the following activities: analyzing and assessing risks; planning for cyber responses; cyber emergency process reporting; responding to cyber threats and attacks; reviewing and developing incident and technical reports; and delivering security programs for cyber threats.

58 Fundamentally, the respondent agrees with the applicant about the details of both categories of essential activities performed in the GOC and the CCIRC. The problem is that the applicant will not commit to those details by ensuring that they are included in the definition of essential services. The applicant’s approach is broad. The respondent’s approach is much more specific.

59 Defining essential services specifically is necessary to achieve the main purpose of the Act — to identify which workers are essential and what they will be doing in the event of a strike. As reflected in the Parks decision, a delicate balance must be struck between protecting the safety and security of the public and preserving the right of employees to strike: at paragraph 179. The definition of an essential service must be sufficiently precise to give effect to that balance and, in particular, to avoid the unnecessary removal of the right to strike. It must facilitate identifying the types of positions, the number of positions and the specific positions required to perform an essential service: the Service Canada decision at paragraph 106. It must allow for the “bundling” of essential activities consistent with subsection 121(1) of the Act, which reads as follows:

          121. (1) For the purpose of identifying the number of positions that are necessary for the employer to provide an essential service, the employer and the bargaining agent may agree that some employees in the bargaining unit will be required by the employer to perform their duties that relate to the provision of the essential service in a greater proportion during a strike than they do normally.

A precise definition of essential services also serves the purpose of ensuring that managers and other employees do not perform the essential services, as contemplated by paragraph 121(2)(a) which reads as follows:

          121. (2) For the purposes of subsection (1), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined

(a) without regard to the availability of other persons to provide the essential service during a strike; and…

60 The CBSA decision also emphasized that the definition of essential services must facilitate the other required steps in deciding the content of an ESA: at paragraph 155.

61 In the Service Canada decision, the Board found that it was inappropriate to define a broad program as essential, which the applicant seeks to do in its submission. It stated as follows, at paragraph 76:

76 This Board finds on balance that it cannot declare the EI, CPP and OAS/GIS programs in their entirety — or the delivery of those programs in its entirety — as an essential service. Besides the fact that it does not have before it detailed evidence about all aspects of the three programs, the Board believes that such a declaration would be too broad in scope to facilitate the other determinations that will be required to complete the ESA, including the “level of service,” the types and numbers of positions and the specific positions needed to deliver essential service(s) at the level of service set by the respondent. Moreover, in the Board’s view, a broad declaration that the EI, CPP and OAS/GIS programs are essential would risk denying more employees the right to strike than is reasonably necessary to protect public safety and security in the event of lawful strike action. The Board believes that the “balancing act” envisaged in Parks Canada Agency requires a more precise definition of essential services in this case. While still preferring to err on the side of caution to safeguard the public interest, the Board must decide what specific services or activities are necessary for public safety or security within the broader context of the EI, CPP and OAS/GIS programs — in this decision addressing the role played by CSOs in SCCs.

[Emphasis in the original]

The Board determined that it must define essential services specifically to meet the purposes of the Act, stating as follows at paragraph 106:

106 … The description of an essential service in an ESA exists for a quite different purpose. It needs to be sufficiently specific to identify what major functions should continue in the event of a strike as well as to facilitate determinations about other required content elements in an ESA — mainly, the final number of positions that will be necessary to provide the essential service should strike action occur…

62 The respondent disagrees with the applicant’s contention that an equipment-based approach would require amending the ESA whenever there are changes in the equipment used by CSs in the GOC and the CCIRC. In the respondent’s view, there would be no need to amend the ESA for every update, but if the applicant introduces a new function, the respondent would need to know. As necessary, such a change in functions could lead to a change in the ESA. The Act itself clearly contemplates that an ESA will change and provides a specific process for amendments and for the involvement of the Board where there is disagreement: at sections 126 to 128.

63 Unlike in this case, the applicant committed in the CBSA decision to a list of computer equipment: at paragraph 104. On the agreement of the parties, the Board appended that list to its decision. For that reason, the Board did not specifically reference the listed equipment in its definition of the essential services performed by CSs at the CBSA. The CBSA decision is thus factually distinct. It cannot be cited to support the proposition that the Board supports the applicant’s approach rather than the respondent’s approach.

64 There are ample reasons for the Board not to accept the applicant’s definition of essential services. The definition does not provide sufficient guidance to employees on the duties that they would be expected to perform during a strike. It includes non-essential activities. It does not even clearly articulate what is meant by “emergency management.” It also does not allow the parties to proceed to the next steps in defining the detailed content of their ESA.

65 The respondent’s proposal reflects the reality of the IT service world, in which activities are inevitably linked to software, systems, applications and devices. There is no good reason not to articulate the essential activities that CSs perform in the GOC by referring to the functions that the software, systems, applications and devices provide. Mr. Oldham did exactly that in his testimony. The reality is that the CSs —other than those who work at the CCIRC — support equipment. The definition of essential services must reflect what they actually do.

66 Concerning the applicant’s argument that the Board has no jurisdiction to interfere in the applicant’s use of equipment, the respondent asserts that it is not asking the Board in any way to require changes in how equipment is used or what equipment is used. It is asking only that the definition of essential services refer specifically to the functions performed by the equipment that the applicant chooses to employ.

C. Applicant’s rebuttal

67 The applicant maintains that the phrase “… to the extent that such work is already performed by the CS’s [sic]” in the respondent’s proposal is inappropriate. The uncontradicted evidence remains that CSs do perform the work.

68 The respondent excluded SAP from the list of equipment in Exhibit E-20. Mr. Oldham testified that SAP is the only tool available to the GOC to manage finances for essential activities for an event of national interest.

69 The respondent’s allegation that the list of equipment in Exhibit E-20 has only “mildly changed” is inaccurate. Mr. Oldham clearly outlined in significant detail fundamental changes that have occurred and testified that changes will continue to occur.

70 Concerning the applicant’s alleged refusal to commit to the details, the CBSA decision established that the definition of essential services does not need to mention specific equipment. Equally, the Board determined in the Parks and Service Canada decisions that it need not provide all the details in a definition. The respondent, in effect, is trying to argue an issue — the required level of detail — that the Board has already resolved.

71 The applicant’s proposal is not overly broad. It is not arguing than an entire program be defined as essential. Its approach is not about “emergency management” in the broad program sense but rather about specific activities within that program.

IV. Reasons

72 Following the analytical path first outlined by the Board in the Parks decision, my task in this decision is limited but fundamental, and involves answering the following question: What are the essential services, if any, that CS Group positions perform at Public Safety Canada?

73 Subsection 4(1) of the Act defines an “essential service” as follows:

"essential service" means a service, facility or activity of the Government of Canada that is or will be, at any time, necessary for the safety or security of the public or a segment of the public.

74 There is apparently no disagreement between the parties that some CS positions at Public Safety Canada within the GOC and the CCIRC perform essential services within the meaning of the Act. I accept without reservation the evidence tendered that significant threats to public safety and security do exist that require a coordinated emergency response capability and that the absence of such a functional capability could jeopardize the health and lives of Canadians, the security of their property and the integrity of critical infrastructures. The government has chosen to address the range of existing and potential threats by establishing and operating the GOC, housed within Public Safety Canada, as a single centre for managing a “whole-of-government” response. That policy decision is not one that the Board may or should question.

75 Against that background, I also believe that the parties share broadly similar views about the underlying nature of most of the essential services that are performed by CSs at the GOC. They disagree over exactly how to define those essential services. That disagreement, in turn, relates mostly to two main issues: Can the definition be expressed in relatively general terms, as proposed by the applicant, or is greater specificity required, as argued by the respondent? Layered on that difference of views is the dispute between the parties about linking the definition of essential services directly to a list of equipment (Exhibit E-20). The applicant rejects that linkage as both a legal and practical matter. The respondent urges that an equipment-linked definition of essential services provides the level of certainty necessary to establish the duties that the incumbents of CS positions must continue to perform in the event of a strike.

76 The required level of detail for an essential service definition is an issue that the Board broaches, explicitly or implicitly, in virtually all ESA cases. While some of the Board’s previous decisions provide general guidance on the point, determining the appropriate level of detail will always remain dependent to some extent on the specific facts and organizational context of the case. This case is not an exception.

77 The CBSA decision has already canvassed the second of the two issues — the question of linking the definition of essential services to specific equipment — albeit in a different organizational context. The parties clearly remain apart on its findings and on whether they apply here. While I am not bound by the CBSA decision or, for that matter, by the findings of any of the other previous ESA decisions argued by the parties, I take the view that there must be very good reason to depart from the rulings already made by the Board in this area. On balance, for the reasons cited below, I find it both appropriate in the factual circumstances of this case and consistent with the requirements of the Act to follow much the same general direction taken by the Board in the CBSA decision.

78 Doing so, I cannot endorse either of the competing essential service definitions advocated by the parties for Public Safety Canada. In my view, aspects of both proposals invite criticism.

79 The applicant proposes the following definition:

All services delivered by or activities performed by certain CS Group positions at the Department of Public Safety and Emergency Preparedness in support of managing the integrated Government of Canada response to emergencies are necessary for the safety or security of the Canadian public.

80 For at least three reasons, I find that the applicant’s proposal falls short. First, the definition proposed by the applicant holds that all services performed by the positions in question are essential. In my view, there is no proven basis in the evidence for so sweeping a proposition. The more persuasive interpretation of the evidence before me is that there may be some activities or services performed by CSs in the GOC and the CCIRC that are not essential. A simple example suffices to illustrate the point. Mr. Oldham acknowledged in his testimony that there are some limited types of equipment used by CSs in the GOC and the CCIRC that are not associated with the performance of essential services. That means that, at the very least, CSs may be involved in non-essential duties when they use or support those types of equipment. General experience suggests that almost all positions include some routine or periodic duties that are non-essential, regardless of the type of work or the organizational context. To be sure, the architecture of the Act reflects the reality that positions normally involve both essential and non-essential components. For example, subsection 123(5) — identified by some parties as the “bundling” provision — foresees that the non-essential duties of certain positions can be displaced by “bundling” more essential duties in those positions, freeing other incumbents to participate in lawful strike activity. Subsection 123(5) reads as follows:

          123. (5) The Board may, for the purpose of identifying the number of positions that are necessary for the employer to provide an essential service, take into account that some employees in the bargaining unit may be required by the employer to perform those of their duties that relate to the provision of the essential service in a greater proportion during a strike than they do normally.

To find in this case that all services performed in support of managing the integrated Government of Canada response to emergencies are essential requires proof on the balance of probabilities — proof that, in effect, all substantive duties fall within the definition of “essential services” under the Act. I am not satisfied that the applicant has met that burden of proof nor that the evidence before me comprehensively depicts all the duties that CSs perform. To be sure, the applicant’s use of the phrase all services may well have the effect of imposing on it an onerous burden of proof that can seldom be met. Realistically, it strikes me that the term all services should usually be avoided.

81 Second, the practical application of the applicant’s definition presumes knowledge of the certain positions to which it refers. Those certain positions may be known to the parties based on their previous discussions but they are certainly not formally identified for the purpose of this hearing. At this stage, the reference to certain positions in the definition essentially has no concrete meaning for the Board. Viewed against the logic of the analytical path outlined in the Parks decision, it puts the proverbial cart before the horse. The Board cannot be bound to any specific positions — much less unidentified certain positions — when it defines essential services because its first-order definition is what then sets the parameters for identifying the types and numbers of positions and the specific positions that perform the determined essential services. Evidence of the functions performed by specific positions at the front end of the process may assist the Board understanding the nature of the underlying essential services, but other types of evidence may also play an important role. The question of which are the certain positions necessarily remains open.

82 Third, and most importantly, the applicant’s proposal suffers, in my view, from the same problem identified in the Service Canada decision, as referenced by the respondent at paragraph 61 of this decision. “[M]anaging the integrated Government of Canada response to emergencies…” states the essential service at what I find to be an overly broad program level. The Service Canada decision described the problems associated with a program-based definition as follows:

74 … If a program is to be declared essential in its entirety, then the onus of proof that falls to the employer must be to establish comprehensively that all services, activities or facilities that make up the program are necessary for public safety or security. Depending on the nature of the program under scrutiny, the evidence required to satisfy that burden might be very extensive and/or highly detailed, leading to protracted hearings and to complex decisions. Beyond the obvious challenge that that might entail for managing essential service applications efficiently, there are more substantive concerns. Programs typically include diverse elements that arguably bear more or less directly — or more or less immediately — on program objectives. Virtually every program contains ancillary activities that may or may not be vital to achieving the desired program outcomes.

[Emphasis in the original]

The applicant contends that its approach is not about emergency management in the broad program sense but rather about specific activities within that program. Perhaps so, but that is not how the proposed definition reads. While the applicant may in good faith intend that the reference to emergency management stand for a series of specific activities, it is important that those specific activities be identified within the definition in some greater level of detail. Precision is important, to the extent possible, to give effect to the required balance between protecting the public interest on the one hand and preserving the right to strike under the Act on the other hand. I believe that the point made in the Service Canada decision, as follows, generally applies to this case:

…

76 … in the Board’s view, a broad declaration that the … programs are essential would risk denying more employees the right to strike than is reasonably necessary to protect public safety and security in the event of lawful strike action. The Board believes that the “balancing act” envisaged in Parks Canada Agency requires a more precise definition of essential services in this case. While still preferring to err on the side of caution to safeguard the public interest, the Board must decide what specific services or activities are necessary for public safety or security within the broader context of the … programs …

…

[Emphasis in the original]

83 As argued by the respondent, and supported by previous decisions of the Board, there is also an important requirement to try to cast the definition of essential services with sufficient precision to facilitate decisions about the other elements required in an ESA. I refer, in particular, to the Board’s statement at paragraph 106 of the Service Canada decision cited earlier by the respondent, as follows:

106 … The description of an essential service in an ESA exists for a quite different purpose. It needs to be sufficiently specific to identify what major functions should continue in the event of a strike as well as to facilitate determinations about other required content elements in an ESA — mainly, the final number of positions that will be necessary to provide the essential service should strike action occur…

84 For its part, the respondent proposes a definition of essential services that distinguishes between the situations at the GOC and the CCIRC, as follows:

Essential services and activities are:

1. With regard to the CCIRC and the GOC and its branches, support services (namely (a) the installation, testing and maintenance, (b) identifying, investigating and resolving compatibility issues and malfunctions, and (c) direct technical assistance) for 34 of the 35 functions performed by the software, systems, applications and devices presented by the employer (Exhibit E-20) to the extent that such work is already performed by the CS’s. Any services and activities related to the SAP applications are not essential.
2. In association with the CCIRC, analysis and risk assessment, planning for cyber response, processing cyber emergency reporting, responding to cyber threats and attacks, reviewing and developing incident and technical reports, and delivering security programs for cyber threats.

85 Based on the evidence, distinguishing between the GOC and the CCIRC in the definition makes good sense. As summarized by Mr. Oldham, the CSs in the CCIRC are users of equipment while the CSs in the GOC are equipment supporters. It follows that the definition of essential services should reflect that basic difference, as the respondent has attempted to accomplish. The important caveat is that what I identify in this decision as essential services for the “GOC component” involving equipment support applies equally to activities supporting equipment within the CCIRC division of the GOC. When I refer to the “CCIRC component,” I am addressing the essential activities performed in that division by CSs as the users of the equipment.

86 The respondent’s approach to the GOC component obviously reopens the disputed issue of linking essential services to specific equipment. As indicated earlier, the Board addressed that dispute in the CBSA decision. In the CBSA decision, the respondent identified the support provided by CS employees to specific computer systems (listed there as Exhibit E-9 — analogous to Exhibit E-20 in this case) as the essential service. The following excerpts from the CBSA decision summarize the Board’s views:

…

158    [I do not] believe that the 38 items listed in Exhibit E-9 are services or activities within the meaning of subsection 4(1) of the PSLRA. They are computer systems or applications or equipment…

159    I am also of the view that the items listed in Exhibit E-9 are not “facilities” as contemplated by the definition of “essential service” in subsection 4(1) of the PSLRA. A “facility” is more than a system or equipment. In my view, it connotes the idea of a building or an area. The Canadian Oxford Dictionary defines “facility” as “a building designated for a specific purpose.” In my view, an airport or a hospital is a facility, but a computer system or equipment is not.

160    The respondent argues that the essential services are the activities performed by CS employees to support the computer systems listed in Exhibit E-9. Specifically, the provision of support to each of the 38 computer systems by CS employees is a distinct essential service or activity. In my view, that approach is not reasonable. An essential service should not be tied so narrowly to a piece of equipment or system that is only part of a vast network of computers that manage information. To do so would force the parties to amend the ESA each time they replace one of those 38 computer systems or add a new one. An ESA must be able to sustain changes in components of an information network composed of different computer systems without having the parties amend the ESA each time a new computer system is introduced.

…

163.   Although I believe that the definition of an essential service in this application should not be tied to equipment or systems, it is not because the PSLRA prevents me from doing so, as the applicant contends. Paragraph 123(6)(b) of the PSLRA provides that the number of employees required to provide an essential service is to be determined on the basis that the employer is not required to change its equipment. In my view, that section does not apply to this application since I am not determining the number of employees necessary to provide an essential services [sic], I am determining the essential services. Those two determinations come at different stages in establishing an ESA.

87 First, as a matter of evidence, I am satisfied that Mr. Oldham’s testimony establishes on balance that some, if not most, of the systems or applications listed in Exhibit E-20 are prone to change. For the sake of brevity, I did not report in the summary of evidence his comments in cross-examination on each Exhibit E-20 item. Suffice it to say that those comments left no doubt in my mind that the technological environment in which CSs work constantly evolves and sometimes changes quite substantially. The example of the pending introduction of the SCIP is one of several that clearly illustrate the reality that a list such as Exhibit E-20 inevitably becomes dated, sometimes very quickly. While the respondent attempted to challenge Mr. Oldham on the nature and extent of the changes that actually do occur, the witness never wavered in insisting that Exhibit E-20 could not be more than a “snapshot in time.” I found his testimony — which the respondent did not try to contradict by calling any witness of its own — very credible.

88 Arguing nevertheless to maintain the link to Exhibit E-20, the respondent contends that changes in equipment can be addressed by using the ESA-amending processes provided in sections 126 to 128 of the Act. I cannot encourage that approach. In my view, the Board should try wherever possible to make decisions, particularly first-order decisions about the definition of essential services, that will have some hope of continued relevance beyond current circumstances. To fashion a definition that would virtually guarantee a requirement to amend in every round of future negotiations surely does not serve effective labour-management relations. We have no experience to date that helps us predict how often sections 126 to 128 will need to be invoked in the future and under what circumstances. Nevertheless, beginning with the expectation that they will be routinely used to recast the definition of essential services to accommodate specific equipment changes does not seem entirely reasonable.

89 I thus associate myself with the conclusions expressed in the CBSA decision on the problems of linking the definition of essential services to a list of equipment such as Exhibit E-20. In my view, the shortfall in that approach is sufficient to prefer a different approach on the merits.

90 With respect to the applicant’s argument that I may not legally define essential services in a manner that limits the applicant’s exclusive right to determine the equipment used to perform essential services, I do not propose to do so. Nonetheless, I am in full agreement with the ruling in the CBSA decision that provisions such as paragraph 123(6)(b) of the Act do not constrain the Board’s authority to define essential services. On that aspect, the CBSA decision echoed the Board’s earlier ruling in the Service Canada decision to the following effect:

…

96 The Board notes that there are specific limits imposed by the Act on its authority to identify the number of employees who are necessary to provide an essential service. Those limits may operate at a later stage to constrain the Board’s freedom to consider the possibility that the clients served in person by CSOs at SCCs could rely on alternate means of accessing the services they require. Subsections 123(5) and (6) read as follows:

          (5) The Board may, for the purpose of identifying the number of positions that are necessary for the employer to provide an essential service, take into account that some employees in the bargaining unit may be required by the employer to perform those of their duties that relate to the provision of the essential service in a greater proportion during a strike than they do normally.

          (6) For the purposes of subsection (5), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined

(a) without regard to the availability of other persons to provide the essential service during a strike; and

(b) on the basis that the employer is not required to change, in order to provide the essential service during a strike, the manner in which the employer operates normally, including the normal hours of work, the extent of the employer's use of overtime and the equipment used in the employer's operations.

However, the Board finds that the Act does not state that the Board is similarly constrained when it determines essential services as a first-order matter.

…

91 The CBSA decision also found that items analogous to those listed in Exhibit E-20 do not comprise “services,” “facilities” or “activities” within the meaning of subsection 4(1) of the Act. Nothing in the evidence presented in this case, or in the authorities argued, leads me to a different view. While I might remain open to the possibility that a computer system or installation could be a “facility” for the purpose of subsection 4(1) given the appropriate evidence, I join in the understanding expressed in the CBSA decision that the types of items listed here in Exhibit E-20 are essentially physical and intellectual assets that allow certain activities to be performed. Those activities, rather than the equipment, are what must be captured in the definition of essential services.

92 For the GOC component, the respondent’s proposal tries to accomplish that objective by identifying the following support activities performed by CSs for the software, systems, applications and devices used in the GOC: installing, testing and maintaining, identifying, investigating and resolving compatibility issues and malfunctions, and providing direct technical assistance. On the evidence before me, confirmed during the respondent’s cross-examination of Mr. Oldham, that list of activities is generally sound. The challenge is to determine how to delimit the essential circumstances where those activities are performed without referring to a specific list of equipment and, at the same time, to avoid the problems associated with the applicant’s proposal.

93 The ruling in the CBSA decision answered the challenge by defining essential services as follows:

…

The provision of computer systems and services related to securing the border by managing the access of people and goods (including food, plants and animals) to and from Canada for the purpose of protecting the safety or security of the public.

…

The respondent has attacked the ruling for several reasons in its judicial review application. It is certainly not for me to comment in any way on the arguments that it advances in that context. Unless and until the Federal Court decides otherwise, the CBSA decision stands.

94 Nevertheless, in the circumstances of this case, I judge that it is appropriate to take a somewhat different tack while adhering to the main findings of the CBSA decision. I believe that the evidence allows me to be somewhat more specific about the context in which identified essential services are performed. Still, by the very nature of dealing with a mandate about emergencies, erring on the side of caution remains an overarching imperative. The zone for caution must be substantial.

95 Drawing from documents such as Public Safety Canada’s Performance Report (Exhibit E-3) and the FERP (Exhibit E-4) and from the oral testimony, I have modified the respondent’s proposal regarding the GOC component as follows:

For the Government Operations Centre, including the Canadian Cyber Incident Response Centre, the following services are essential:

(a)      installing, testing, maintaining and repairing,

(b)      identifying, investigating and resolving compatibility issues and malfunctions for, and

(c)      providing direct technical assistance for

the software, systems, applications and devices used directly to identify and analyze risks or threats that may require a response coordinated by the GOC, to communicate information to partners about those risks and threats, and to take actions and provide for the immediate expenditure of emergency funds to prevent, mitigate, prepare for, respond to and recover from those risks and threats.

96 I have included the reference to “provide for the immediate expenditure of emergency funds” in the definition despite the respondent’s position that the “SAP” software is not essential. While I did not receive detailed evidence about the SAP software or about the processes used to facilitate and account for expenditures, it is clear that the responses that the GOC is required to coordinate in the types of situations detailed in Mr. Oldham’s evidence entail spending, sometimes within the shortest of timeframes. To the extent that software systems are used to facilitate that spending, those systems support an essential service. However, I have not been convinced by the limited evidence placed before me on the point that it would necessarily be essential during a strike to support activities that account for spending after an emergency or that support resulting Treasury Board submissions or other approval processes. To be sure, that distinction may not be meaningful if all expenditure management activities are supported by the same software — something that I cannot determine from the evidence.

97 I recognize immediately that a very liberal interpretation of this definition might support more expansive limitations on the right of CS employees in the GOC to withdraw services in the event of a strike than may be strictly necessary. In the specific context of emergency management, taking that risk is not inappropriate. A balanced application of the definition will nonetheless require that the management of the GOC understand and accept that the intent of the definition is to restrict the identified support services in (a), (b) and (c) to circumstances where there is a clear, direct linkage to the emergency management functions listed after (c). Should the Board be involved in resolving downstream disputes about the type of positions, the number of positions or the specific positions that perform the essential services, as defined above, I believe that it will need to be appropriately vigilant that the intent of the definition is respected.

98 Turning to the CCIRC component, I believe that the evidence, substantially agreed to by both parties, supports the respondent’s proposal, modified editorially as follows:

For the Canadian Cyber Incident Response Centre, the following services are essential: analyzing and assessing cyber risks and threats, planning responses for and responding to cyber risks and threats, including developing and processing reports related to cyber emergencies, reviewing and developing incident and technical reports, and delivering security programs for cyber threats.

99 Under section 120 of the Act, it is the applicant’s responsibility to determine the level at which the essential services described above will be delivered to the public during a strike. Determining the “level of service” is the next step in the analytical path that the Board described in the Parks decision for deciding the content of an ESA.

100 For all of the above reasons, the Board makes the following order:

V. Order

101 For Public Safety Canada, the essential services performed by members of the Computer Systems Group are as follows:

For the Government Operations Centre, including the Canadian Cyber Incident Response Centre, the following services are essential:

(a)      installing, testing, maintaining and repairing,

(b)      identifying, investigating and resolving compatibility issues and malfunctions for, and

(c)      providing direct technical assistance for

the software, systems, applications and devices used directly to identify and analyze risks or threats that may require a response coordinated by the GOC, to communicate information to partners about those risks and threats, and to take actions and provide for the immediate expenditure of emergency funds to prevent, mitigate, prepare for, respond to and recover from those risks and threats.

For the Canadian Cyber Incident Response Centre, the following services are essential: analyzing and assessing cyber risks and threats, planning responses for and responding to cyber risks and threats, including developing and processing reports related to cyber emergencies, reviewing and developing incident and technical reports, and delivering security programs for cyber threats.

102 The Board directs the applicant to determine the level at which the foregoing essential services will be delivered to the public in the event of a strike in accordance with section 120 of the Act and to so inform the respondent and the Board within 30 days of the date on which this decision is issued.

103 The Board further directs the parties to resume negotiations and to make every reasonable effort to negotiate the remaining content of the ESA for CS positions at Public Safety Canada.

104 The Board remains seized of all other matters relating to CS positions at Public Safety Canada that may be included in the ESA and that are not resolved by the parties.

105 The Board remains seized of all outstanding matters for positions in the CS Group in other departments and agencies.

January 28, 2010.

Dan Butler,
Board Member