FPSLREB Decisions

I. Request for a provisional execution

1 Sylvain Marchand (“the grievor”) held a director of information technology position at the Canada School of Public Service (“the employer”). On December 10, 2012, the employer suspended him without pay, against which he filed a grievance.

2 The grievor was later terminated on March 26, 2014. He filed a second grievance, against the termination. Both grievances are currently the subject of a hearing that began on March 2, 2015, and that will continue in September 2015.

3 On November 10, 2014, the employer’s counsel informed the grievor’s counsel that the employer would not challenge the termination grievance and that it acknowledged that it should compensate the grievor for the direct losses caused by the termination. However, the employer specified that his claims did not represent direct losses caused by the termination, with the exception of those directly related to his loss of salary and benefits. It also specified that it would ask me to not order the grievor reinstated and that compensation in lieu of reinstatement would be the subject of a specific debate during the hearing. The employer made no concession with respect to the suspension grievance, and it maintained that the Board did not have the jurisdiction to hear such a grievance since it was purely administrative.

4 On April 22, 2015, the grievor submitted a request for a provisional execution. In that request, he asked for an order directing the employer to pay him all the amounts owed him as salary and other benefits arising from the suspension and termination from the date on which the request was decided to the date of the final decision on these grievances.

5 The employer challenged the grievor’s request on the ground that the Board did not have the power to grant the requested provisional execution. It added that even if the Board had that power, the circumstances would not justify exercising it.

6 On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the new Board”) to replace the former Public Service Labour Relations Board (“the former Board”) as well as the former Public Service Staffing Tribunal.  On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84).  Pursuant to section 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) as that Act read immediately before that day.

II. Summary of the evidence

7 The grievor testified that he was without a salary for more than two years and that despite sending hundreds of resumés, none of his job applications was fruitful. However, during cross-examination, he admitted that he sent at most 23 resumés to potential employers, that most of his job applications were made between April and July 2014, and that he has not submitted any job applications since September 2014. He also admitted to receiving approximately $800 in monthly pension benefits.

8 The grievor also testified that the employer’s actions affected his state of health to the point that he was unable to find a job and that his eligibility for employment insurance benefits ended more than six months ago. It should be noted that no medical report or proof of employment insurance benefits was adduced in evidence to support that testimony.

9 During his testimony, the grievor added that he was unable to perform any activity. In cross-examination, he confirmed that he never checked with the Régie des rentes du Québec to find out whether he was eligible for a disability pension. He also confirmed that he was the president of a snowmobile club and that he was actively involved in that organization’s activities during the last winter. Notably, he contributed to opening trails, to the club’s finances, to applications for grants and to buying a groomer. In addition, he admitted to being the director of three numbered companies, none of which has so far been dissolved.

10 The grievor also acknowledged that he received his full salary for a period of approximately 14 weeks, between December 2013 and March 2014, and that that amount would be deducted from any order for a salary payment on my part when I issue my final decision.

III. Summary of the arguments

A. For the grievor

11 Since the employer did not challenge the wrongfulness of the termination, and given that it acknowledged that it owed him certain amounts, the grievor maintained that he is clearly entitled to compensation for salary lost during his suspension and for the time that has elapsed since the termination, in the form of a provisional execution.

12 In support of that argument, the grievor referred me to Savard v. Les Entreprises Cam Construction Inc., 2011 QCCQ 1986, and Centre Commercial Plaza Centennial (2001) Inc. v. 9146-8934 Québec Inc., 2009 QCCS 792. In Savard, the Court of Québec granted a safeguard order requiring the respondent to deposit $34 712.50 to the Court’s registry because it admitted to owing that sum to the applicant and because it had entered into an agreement about it. In Plaza Centennial, before the final decision was rendered, the Quebec Superior Court ordered the respondent to file with the Court the exact amounts, which were mainly the monthly rents that the respondent admitted that it owed to the applicant, as it occupied the premises belonging to the latter.

13 The grievor pointed out that I should not allow the employer to refuse to pay an amount that it admitted it owes him, particularly considering his precarious financial position. He also maintained that I should force the employer to give effect to its commitments. Once again, he referred me to Savard and to Lévesque v. Caisse populaire Desjardins du Village huron, 2008 QCCQ 668.

14 According to the grievor, the requested order would not cause the employer any prejudice. However, he asserted that the parties’ financial means were not balanced and that he suffered real and serious prejudice because of the financial repercussions that he faced. Therefore, the requested order would restore the procedural balance between the parties.

15 The grievor also maintained that the requested order was not injunctive but procedural as it was a case-management device. According to him, an adjudicator must be able to use case-management power to order the payment of a sum that is no longer being contested.

16 The grievor acknowledged that subsection 228(2) of the Public Service Labour Relations Act (“the Act”) gives an adjudicator the power to issue any order after considering a grievance. However, he asserted that because the termination grievance was not being challenged, it was no longer being considered, and that therefore I could make the requested order. According to him, the debate on the merits of the termination grievance is over.

17 Finally, the grievor asserted that the Board has the inherent power to make any order deemed appropriate, to give full effect to its decision-maker role in this case.

B. For the employer

18 The employer asserted that first, a Board adjudicator does not have the power to grant the grievor’s requested provisional execution. It also asserted that even if a Board adjudicator had that power, the circumstances of this case would not justify exercising it.

19 According to the employer, the powers of an administrative tribunal must be set out in its enabling statute, particularly when a legislator has clearly established a comprehensive scheme for resolving labour relations disputes. In support of that argument, the employer referred me to paragraph 39 of Vaughan v. Canada, 2005 SCC 11.

20 The employer asserted that the Act does not provide for interim relief and that an adjudicator may exercise only the jurisdiction assigned to him or her through the enabling statute. The legislator must explicitly express the intention to assign such a power; otherwise, no interim power can be recognized. In support of that argument, it referred me to paragraph 46 of Ordon Estate v. Grail, [1998] 3 S.C.R. 437.

21 According to the employer, the legislator assigns that type of power when it is deemed appropriate and has not done so within the framework of the Act. It referred me to section 18.2 of the Federal Courts Act (R.S.C., 1985, c. F-7), and to paragraph 60(1)(a.2) of the Canada Labour Code (R.S.C., 1985, c. L-2). In both cases, the legislator expressly assigned the power to make interim orders.

22 The employer asserted that that type of interim power is not found in any provision of the Act and that Parliament’s silence is intentional and should be considered. In addition, according to it, although an adjudicator can decide a grievance using the order that he or she judges appropriate, it can be done only after considering the grievance (see subsection 228(2) of the Act). According to the employer, a Board adjudicator does not have the power to grant the grievor’s requested provisional execution.

23 The employer also asserted that the circumstances of this case did not justify exercising that power. It referred me to page 334 of RJR - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R 311, specifically to the three-step analysis that the courts must apply when examining an application for an interim injunction. According to the employer, the grievor did not discharge his burden of establishing a serious issue to be decided, that he would suffer irreparable harm were his application dismissed, and that he would suffer the greatest harm depending on whether the remedy was granted or denied, pending a decision on the merits.

24 The employer reminded me that the grievor’s request was not at all related to the suspension grievance; i.e., a serious issue to be debated in this dispute. In addition, it is impossible to know the extent of the compensation requested because the grievor did not specify the amounts claimed or the applicable period. According to the employer, the fact that the parties did not agree with respect to any of the many claims that he made in his grievances is an indication that the right to a provisional execution is neither clear nor apparent.

25 The employer raised several substantial discrepancies between the content of the grievor’s affidavit and the evidence obtained during cross-examination, including the fact that he was receiving pension benefits, that he was able to perform certain activities, particularly that he was president of a snowmobile club, and that he was still the director of three numbered companies, without specifying whether they generated income. According to the employer, he did not establish that he would suffer irreparable harm or greater harm were his provisional execution request rejected.

IV. Reasons

26 My view is that the following two questions must be addressed:

1. Does a Board adjudicator have the power to grant the requested provisional execution?
2. If so, do the circumstances of this case justify exercising that power?

27 With respect to the first question, I agree with the employer’s position that a Board adjudicator does not have the power to grant the grievor’s requested provisional execution. The Board’s powers are listed in section 36 of the Act. Those of an adjudicator are listed in section 226 of the Act. The legislative provision that applies, section 226, does not refer to an interim power or to granting interim relief. In my opinion, a Board adjudicator must exercise only the powers assigned to him or her through the enabling statute, not more (Ordon Estate).

28 I cannot ignore the fact that in the Act, the legislator did not explicitly express the intention to assign such a power to the Board or to one of its adjudicators. In my opinion, it is reasonable to deduce that that silence was intentional as the legislator assigned that power when it was deemed appropriate (see section 18.2 of the Federal Courts Act and paragraph 60(1)(a.2) of the Canada Labour Code).

29 With respect to the second question, I also agree with the employer’s position that the circumstances of this case do not justify that I grant the grievor’s requested provisional execution.

30 It is evident that the circumstance of this case are in no way similar to those that applied in Savard and Plaza Centennial, two civil cases in which the Court’s authority to issue such an order was not questioned. In fact, the cases that the grievor cited are of little use in the determination that I must make. In most of the cases he cited, the parties agreed to the sum owing or one party made a clear and precise admission about the sum owing, which was not so in this case.

31 I cannot ignore the fact that the employer acknowledged neither the accuracy of the grievor’s calculation nor that the losses claimed in his grievances were direct consequences of his suspension. In fact, he did not submit any precise calculations.

32 I also considered the fact that since the employer is opposed to reinstating the grievor, he should not be compensated for the loss of wages and benefits related to his termination before I decide on the remedy that I deem appropriate in the circumstances, either reinstatement or compensation in lieu of it. It goes without saying that the nature and amount of the compensation could vary considerably, depending on the remedy that I deem appropriate in the circumstances. On that point, I cannot ignore the fact that several times the employer indicated that it would ask me to allow a short notice period that, according to it, will lead to a modest amount for a notice period.

33 My view is that several parameters of this case remain to be determined. As the employer proposed, if I decide to not reinstate the grievor, I will have to determine, based on a number of factors, an appropriate compensation to order in the circumstances. If he is reinstated, I will undoubtedly order the payment of the salary and benefits to which he is entitled from the time he was terminated. However, in both cases, the amount could be deducted from any amount earned or received during the relevant period or from any other amount deemed relevant. Since each parameter will have to be determined, it would not be appropriate to order paying compensation at this stage of the process, as I must first determine the entitlement to compensation as well as its nature and amount, which I cannot do until I have heard all the facts and arguments from the parties.

34 I am not simply faced with a case in which the parties have agreed on the compensation that is owed to the grievor. On the contrary, the parties’ positions are diametrically opposed, and I must analyze them in depth, after considering the grievances.

35 For all of the above reasons, I make the following order:

V. Order

36 The grievor’s provisional execution request is dismissed.

July 20, 2015.

PSLRB Translation

Stéphan J. Bertrand,
adjudicator