FPSLREB Decisions

REASONS FOR DECISION

I. The application

1        The applicant, Elizabeth Bernard, applied to the Federal Public Sector Labour Relations and Employment Board under section s. 43 of the Federal Public Sector Labour Relations Act (“the Act”),requesting that it reconsider three decisions that its predecessor, the Public Service Labour Relations Board (PSLRB), issued in 2011, namely, Lampron v. Professional Institute of the Public Service of Canada,2011 PSLRB 29, Johnson v. Professional Institute of the Public Service of Canada,2011 PSLRB 85, and Johnson v. Professional Institute of the Public Service of Canada,2011 PSLRB 86 (“the decisions”). Note that in this decision, “the Board” also refers to the former Public Service Labour Relations and Employment Board and the former PSLRB.

2        In the decisions, the Board dismissed complaints alleging that the Professional Institute of the Public Service of Canada (PIPSC) had violated s. 190 of the Act by terminating the complainants’ union membership due to their involvement with another employee organization. The complaints were dismissed because they had been filed outside the mandatory 90-day time limit set out in s. 190(2) of the Act.

3        Ms. Bernard notes that the Board suspended and extended all regulatory time frames for complaints, grievances, and Board matters for the holiday period between December 23, 2017, and January 2, 2018. Because of that, she submits that the 90-day time limit is no longer a mandatory deadline. On that basis, she requests that the Board reconsider the decisions on their merits, more than six years after they were issued.

4        Ms. Bernard further submits that the Board failed to advise other members of the bargaining unit of the decisions, thus depriving others of the opportunity to be heard.

5        And finally, Ms. Bernard argues that given the Supreme Court’s 2015 determination that employee choice is a constitutional requirement for meaningful collective bargaining, the Board must determine whether bargaining agents can impose lifetime bans on union members who exercise freedom of association.

II. Standing

6        Ms. Bernard was not a party to any of the decisions. She is simply an employee who is part of the same very large bargaining unit as were the three complainants in the decisions. Her submission, dated January 16, 2018, states as follows: “I am an employee of the Canada Revenue Agency (CRA) and a member of the same bargaining unit as the three employees who were disciplined by PIPSC.”

7        This is not the first time the applicant has come before the Board seeking the reconsideration of a decision to which she was not a party.

A. Bernard v. Professional Institute of the Public Service of Canada, 2015 PSLREB 59

8        This case was a reconsideration request under s. 43 of the Act from Ms. Bernard of Professional Institute of the Public Service of Canada v. Treasury Board,2008 PSLREB 13 (“PIPSC 1”). She argued that employees who were directly affected by the Board’s decision (that the employer had to share employee home contact information with the PIPSC) were not given notice of the hearing or the opportunity to make submissions.

9        The Board found that Ms. Bernard lacked standing to seek that reconsideration.

10        In reaching its conclusion, the Board considered a previous decision of the Federal Court of Appeal that had granted Ms. Bernard standing. She had been partially successful in her judicial review of the Board’s decision in Professional Institute of the Public Service of Canada v. Canada Revenue Agency,2008 PSLRB 58 (“PIPSC 2”). As a result, she was given standing by the Federal Court of Appeal in Bernard v. Canada (Attorney General),2010 FCA 40, to be heard in the redetermination of that Board decision, which became known as “PIPSC 3”. The issue in those matters was Ms. Bernard’s objection to the employer being ordered to share her home contact information with the PIPSC.

11        The Board noted that although the Federal Court of Appeal had granted Ms. Bernard standing to participate in PIPSC 3, it was a limited standing granted as a direct result of her judicial review of PIPSC 2, not because she had an inherent right to standing.

12        I agree with this analysis and further note that the context of that case was also very different from the one before me. ln that case, Ms. Bernard had successfully judicially reviewed a decision that she argued had impinged on her privacy interests. It was not a situation like the one before me, in which Ms. Bernard asks the Board to reconsider a decision in which she has no legitimate interest.

13        Dealing with the s. 43 reconsideration request, the Board noted the importance of finality as follows at paragraph 69:

[69] ln my opinion, if the applicant is given standing to request a reconsideration of a decision to which she was not a party, she would effectively be circumventing the requirements of section 14 of the Regulations. That would put at risk the finality of the Board’s decisions, since it would open the door to any person to seek a reconsideration of a decision to which he or she was not a party. That is a strong reason to find that only the parties to a decision can request a reconsideration.

14        An application for judicial review of this decision was dismissed (see Bernard v. Canada (National Revenue), 2017 FCA 40). Leave to appeal to the Supreme Court of Canada was also dismissed (see Bernard v. CRA, 2017 CarswellNat 3982).

B. Bernard v. Close, 2017 FCA 52

15        Ms. Bernard applied for judicial review of the Board’s decision in Close v. Treasury Board (Department of Citizenship and Immigration),2016 PSLREB 18. The issue before the Board had been whether it was reasonable to deny paid leave to two employees whose post-vacation return to work had been delayed by a snowstorm.

16        In Bernard v. Close,2017 FCA 52, the Federal Court of Appeal found that Ms. Bernard was a stranger to the case. There was no evidence that she had been directly affected by the proceedings before the Board. The Court commented as follows:

...

[2] The applicant was not a party to the Board proceedings, is not a member or employee of the union involved in the Board proceedings, and has no relationship with the individual respondent grievors before the Board. The applicant has offered no evidence suggesting that the Board’s decision affected her legal rights, imposed legal obligations upon her, or prejudicially affected her in some way: League for Human Rights of B’Nai Brith Canada v. Odynsky, 2010 FCA 307, [2012] 2 F.C.R. 312; Rothmans of Pall Mall Canada Ltd. v. Canada (M.N.R.), [1976] 2 F.C. 500, 67 D.L.R. (3d) 505 (C.A.); Irving Shipbuilding Inc. v. Canada (A.G.), 2009 FCA 116, [2010] 2 F.C.R. 488. Thus, the applicant is not “directly affected” by the proceedings before the Board within the meaning of subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7.

[3] Nor does the applicant have public interest standing. ln considering this, we are to consider in a cumulative way whether a serious justiciable issue is raised, whether the applicant has a “real stake” or “genuine interest” in the matter, and whether in all the circumstances, this application is a reasonable and effective way to bring the issue before the courts: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524 at para. 37.

[4] ln applying these factors, we should keep front of mind the rationales underlying them: “properly allocating scarce judicial resources and screening out the mere busybody; ensuring that courts have the benefit of contending points of view of those most directly affected by the determination of the issues; and preserving the proper role of courts and their constitutional relationship to the other branches of government”: Downtown Eastside at para. 25.

...

[7] ln this case, any parties dissatisfied with the Board’s decision were represented and faced no impediments against applying for judicial review. But they did not so apply. Perhaps their union, thinking of the interests of all of its members, was satisfied with the outcome reached by the Board. This suggests a conscious choice by the parties or their union to accept the Board’s decision or at least a conscious unwillingness to contest it. Granting standing to the applicant would disrupt that choice....

[8] ln these circumstances, to permit the applicant to litigate this matter, the Court would have to have before it at least some evidence explaining the applicant’s interest in the matter. On this, the applicant has filed no evidence whatsoever except to show that her collective agreement contains a clause similar to the one in issue here. But if a dispute were to arise under the clause in her collective agreement, that can be litigated by persons directly affected.

[9] We do not consider it to be a wise use of judicial resources in a case like this to permit a litigant whose interest in the matter is at best only jurisprudential to judicially review a decision of relevance mainly to the particular private parties in that matter, in circumstances where the parties do not wish to litigate further. There are potentially tens of thousands similarly situated to the applicant who would also have standing if we were to grant standing to this applicant: see the concerns expressed by the Supreme Court in Downtown Eastside, above, at para. 26 and Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236 at p. 252. The issues said to be of concern in this case may well arise again and are not evasive of review.

...

17        Leave to appeal this decision to the Supreme Court was dismissed in Elizabeth Bernard v. Cecilia Close, CanLII 2017 54653 (SCC).

III. Reasons

18        Both the reasoning of the Board in 2015 PSLREB 59 and of the Federal Court of Appeal in 2017 FCA 52 apply equally in this case.

19        Ms. Bernard asks the Board to reconsider three decisions to which she was not a party and in respect of which she has no interest. Her only connection to the complainants in the decisions is that they are in the same bargaining unit, as are tens of thousands of other Canada Revenue Agency employees. Ms. Bernard is not even a member of the union whose membership decision she seeks to challenge.

20        The individuals who had a stake in the Board’s decision are the three complainants who lost their union membership and who had their complaints to the Board dismissed because they were filed outside the time limits. These complainants have not requested reconsideration of the decisions. As the Court said in 2017 FCA 52, it is not a wise use of judicial resources to permit a litigant whose interest is only jurisprudential, at best, to challenge a decision that is mainly relevant to the private parties involved, who do not wish to litigate further.

21        Ms. Bernard has already been advised several times by decisions of this Board and of the Federal Court of Appeal that she does not have standing to challenge decisions that do not directly affect her.

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

IV. Order

23        The applicant has no standing to bring this request for reconsideration to the Board, and the request is dismissed.

May 22, 2018.