FPSLREB Decisions
Decision Information
Work Force Adjustment Directive (WFAD) - Separation benefit - Reserved jurisdiction to deal with matters arising out of the application of an earlier decision - Employer's failure to comply with an earlier decision - Whether the employer is entitled to raise new arguments at this stage - Theory of functus officio - Jurisdiction - Sections 23 and 97 of the Public Service Staff Relations Act (PSSRA) - in an earlier decision, the adjudicator had found that the grievor was entitled to the payment of a separation benefit pursuant to provision 7.3.1. of the WFAD: (1998) 34 PSSRB Decisions 22 - the adjudicator had reserved jurisdiction to deal with any issue arising out of the implementation of his decision - the employer refused the grievor the payment of the separation benefit and the grievor applied for relief on the basis of the adjudicator's reserved jurisdiction - the employer objected to the application on three grounds: 1) that the employer had no authority to make the payment because provision 7.3.1. of the WFAD had been suspended from application during the period the grievor had been a surplus employee; 2) that the adjudicator was without jurisdiction to hear the application, on the basis of the theory of functus officio; and 3) that the jurisdiction to order the employer to comply with the adjudicator's earlier decision was vested in the Board, not the adjudicator - in relation to the first ground raised by the employer, the adjudicator found that no submission had been made by the employer during the hearing leading to the earlier decision as to its inability to make a payment pursuant to provision 7.3.1. of the WFAD - the adjudicator concluded that the employer was not allowed to re-argue its case and that it should have filed a judicial review application had it wished to do so - on the second ground raised by the employer, the adjudicator found that he had no authority to re-consider his earlier decision as to the grievor's entitlement to a separation benefit, as the earlier decision contained a final determination of that issue - on the third ground raised by the employer, the adjudicator concluded that, pursuant to subsections 23(1) and 97(6) of the PSSRA, the Board, and not he, had jurisdiction to deal with an allegation that the employer has failed to give effect to the decision of an adjudicator. Application dismissed. Cases cited:Spinks (166-2-15249); Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; Re Wellington County Board of Education and Ontario Secondary School Teachers' Federation (1991), 21 L.A.C. (4th) 124; Chicorelli (166-2-23844).
Decision Content
File: 166228296 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN WILLIAM THOMAS VAUGHAN Grievor and TREASURY BOARD (Public Works and Government Services Canada)
Employer Before: Colin Taylor, Q.C., Board Member For the Grievor: Suzelle Brosseau, The Professional Institute of the Public Service of Canada
For the Employer: Richard Fader, Counsel
Written Submissions – December 14, 1998, January 8, 1999, January 28, 1999, and February 15, 1999 Oral Submissions – February 24, 1999
1 I By award 1 between these parties issued on August 12, 1998, I granted the following remedy:
“In the result, it is declared that: 1. The Employer’s layoff of the Grievor on February 23, 1996 was invalid.
2. The Grievor’s surplus period should have been extended to February 17, 1997, the date on which he was to report for duty.
3. The Grievor’s failure to report for duty on February 17, 1997 was a refusal of a reasonable job offer.
4. The Grievor was laid off as at February 17, 1997.
5. The Grievor is entitled to the separation benefit, pursuant to Article 6.3.1 of the WFAD.
I retain jurisdiction to deal with any issues arising out of the implementation of this Award.”
The Employer has not paid the separation benefit pursuant to point 5 of the award and the Grievor now applies for remedial relief pursuant to my reserved jurisdiction.
The Employer opposes the Grievor’s application on three grounds:
1 Vaughan v. Treasury Board (Public Works and Government Services Canada) [1998] PSSRB File No.: 166228296
2 1. That the Employer has no authority to make the payment which was awarded to the Grievor.
2. That I am functus officio and, therefore, without jurisdiction to entertain the Grievor’s application.
3. That the subject matter of the application is exclusively within the jurisdiction of the Board.
1. THE EMPLOYER HAS NO AUTHORITY TO MAKE THE PAYMENT AWARDED TO THE GRIEVOR
This submission was not made in the proceedings which led to the award of August 12, 1998.
The Employer submits that section 6.3 of the Work Force Adjustment Directive (WFAD) was statutorily suspended from operation during the period in which the Grievor was surplus and, therefore, the Grievor has no legal entitlement to the separation benefit.
The Employer asserts that section 6.3 of the WFAD was suspended by legislation effective July 15, 1995 pursuant to clause 7.3(3) of the Public Sector Compensation Act S.C. 1995, c.17 which reads as follows:
(3) The Governor in Council, on the recommendation of the Treasury Board, may amend the Work Force Adjustment Directive in relation to any of the following matters:
3 (a) the suspension of the separation benefit”
The Employer goes on to say that, effective July 15, 1995, the Governor in Council, on the recommendation of the Treasury Board, made an Order amending the WFAD. The relevant portion of the Order reads:
“6. During the period beginning on July 15, 1995 and ending on June 23, 1998, the application of section 6.3 of the Directive is suspended.”
The Employer asserts it has no authority to make the payment which was awarded to the Grievor.
The Employer is attempting to inquire into the basis or substance of the decision issued on August 12, 1998. The Employer now says that paragraph 5 of the declaratory section of the award is unenforceable because Article 6.3.1 of the WFAD was in suspense on February 17, 1997. That is an attempt to reargue the case which, if the Employer wished to do so, should have been taken on appeal. This is neither the time nor the place to make the argument that the award is wrong or that the remedy granted is unenforceable.
My jurisdiction, if any, is with respect to the implementation of the award. The decision cannot be revisited except on appeal.
4 The award declares that the Grievor is entitled to payment of the separation benefit under Article 6.3.1 of the WFAD. That decision has not been appealed and it is not open to me to revisit that decision. Unless and until that decision is set aside by a court of competent jurisdiction, it must stand.
2. FUNCTUS OFFICIO The Employer submits that I am functus officio and without jurisdiction to entertain the Grievor’s application. The Employer relies on Spinks v. Treasury Board (Transport Canada) [1987] 11 P.S.S.R.B. File No.: 166215249 in which, at p.4, the board said:
“I respectfully adopt the dictum of Marceau J. in Slaight Communications (supra) that ‘when a decision is rendered with nothing to be completed, as here, there is, in my mind, no doubt that the adjudicator is functus officio: any further action will be entirely without authority’. My power as an adjudicator ceases when I render a decision pursuant to subsection 96(2) of the Act. My purported retention of jurisdiction cannot give me authority which has not been vested in me by the Act and which moreover has been vested in the Board by section 20 of the Act.”
The doctrine of functus officio may be stated this way: Once a tribunal has reached a final decision, it cannot, afterwards, alter its award except to correct an accidental slip or omission or to correct an error in expressing the manifest intention of the tribunal.
5 The Grievor argues that I did not reach a final decision since I left it to the parties to calculate and arrange for payment of the money ordered to be paid to the Grievor and reserved jurisdiction should the parties have any difficulty in doing so. Until the award is fully and finally implemented, the Grievor says I am not functus and jurisdiction is not lost.
In Chandler v. Alberta Association of Architects [1989] 2 S.C.R. 848, the Supreme Court of Canada said:
“... there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra.
To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to
6 provide relief which would otherwise be available on appeal.
Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation. This was the situation in Grillas, supra.
Furthermore, if the tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task. If, however, the administrative entity is empowered to dispose of a matter by one or more specified remedies or by alternative remedies, the fact that one is selected does not entitle it to reopen proceedings to make another or further selection. Nor will reserving the right to do so preserve the continuing jurisdiction of the tribunal unless a power to make provisional or interim orders has been conferred on it by statute. See Huneault v. Central Mortgage and Housing Corp. (1981), 41 N.R. 214 (F.C.A.).”
When a decision is rendered with nothing more to be done, then it is clear that the tribunal is functus officio. The award of August 12, 1998 did not quantify the payment which was ordered to be made to the Grievor. That and the implementation of the award was left to the parties with a specific reservation of jurisdiction in the event of any difficulty in so doing.
This is not an uncommon occurrence in matters of this kind. The issue of liability is often divided
7 from the issue of remedy. The calculation and implementation of the remedy granted is often left to the parties to work out, it being understood that the award is not final until implementation has occurred.
I observe that the Supreme Court of Canada in Chandler suggested that the application of functus officio “must be more flexible and less formalistic” in respect of the decisions of administrative tribunals. Common sense and logic dictate that a party be able to return to the tribunal if a remedy, left to the parties to implement, fails to be so implemented in accordance with the clear intention of the award.
In Brown and Beatty, Canadian Labour Arbitration 3rd ed., para 2:4000, the authors comment:
“Some arbitrators, however, have expressed the view that the importation of the strict common law doctrine of functus officio into the labour relations realm may not be warranted. In grievance arbitration the question of whether a specific grant of power has been exhausted so as to render the arbitrator functus commonly arises where the issue of liability is divided from the issue of remedy. In that context one arbitrator has summarized the basis of the doctrine in these terms:
The determination this board must now make is not, we think doctrinal, but is rather a question of fact: whether the board can be said to have made its final award on the reinstatement aspect of the case. We agree of course with the general proposition stated by
Osler, J., in the St. Joseph’s
8 Hospital case, cited above. A final award cannot be altered except to correct a clerical mistake or error: Russell on Arbitration, 17th ed., p.276. But an award ‘must be final, certain, consistent and possible [the reference is no doubt to the award itself, exclusive of the reasons therefore] and must decide the matters submitted and no more than the matters submitted’: id. p.237. If an arbitrator omits to give the necessary directions to effectuate the objects for which he is appointed, the award is not final; id., p.242. While only one final award may be made (in the absence of special authority), an interim award may be made, which may be final as to some claims '‘although it is perhaps more usual for such awards merely to determine certain of the issues arising upon a claim – for instance, to determine the issue of liability while leaving questions of amount to be dealt with later’. id., p.239.
Thus, where an arbitrator has in his view issued a final and binding award he is functus unless he has failed to determine an issue which was specifically submitted to him. Moreover, in any subsequent decision an arbitrator may not reinterpret his prior award, nor may he expand the scope of a previous award. Rather, he is limited simply to completing it. Furthermore, if an award is not complete in that it is silent on an issue, a second arbitrator may be barred from completing it. However, where an arbitrator has retained a jurisdiction to deal with a
remedy, e.g. respecting the calculation of compensation, either with or without the parties’ agreement, the issuance of a subsequent award particularizing the remedy is within his jurisdiction ...”
In Re Wellington County Board of Education and Ontario Secondary School Teachers’ Federation, (1991) 21 L.A.C. (4th) 124 (Devlin), the board ordered the employer to reconsider certain applications and “remain[ed] seised for purposes of implementation of this award.”
The Federation subsequently complained that the employer had failed to implement the award and application for relief was made to the board. The employer argued functus officio. The board said:
“... we find that this board has authority to review the manner in which the board of education reconsidered the applications in question. In our view, this is not properly the subject of a new grievance as the board’s consideration of these applications is the very issue raised in the grievance with which this arbitration board is seised. (p.127)
. . . . . In this case, were we not to review the reconsideration undertaken by the board, we would be depriving the federation of a final determination of the matter raised in the grievance and in respect of which this arbitration board retained jurisdiction. (p.128)”
In Chicorelli and Treasury Board (National Defence), [1998], P.S.S.R.B. File No. 166223844, the board, at para.16, said:
10 “It is clear from the arbitral jurisprudence that an arbitrator is not functus officio unless and until the arbitrator has disposed of all of the issues in dispute, including, of course, any questions concerning quantum." (emphasis in original)
In this case, the parties have agreed that there is no difficulty with quantum. The calculation of the separation benefit payable to the Grievor by the clear terms of the award is not in dispute.
The Employer does not say that the award fails to give the necessary direction to give effect to the award. The award is a direction to the Employer to pay to the Grievor the separation benefit pursuant to Article 6.3.1 of the WFAD. The parties agree that benefit amounts to 1 weeks pay for each year of the Grievor’s service and there is agreement on quantum.
It follows that there has been a final determination of the matter raised by the grievance. The Employer has simply failed to make the payment which is directed by the decision and which is the clear intention of the award.
Thus, the real dispute between the parties is one of performance. The Employer has failed to do what the award directs – namely, to pay to the Grievor the separation benefit which the award directs be paid. That failure of performance, however, does not detract from the finality and certainty of the award. The
11 Grievor says pay me the separation benefit which I was awarded. The Employer refuses to do so.
I conclude that the award is a final determination of the matter raised in the grievance and I am functus.
3. JURISDICTION LIES WITH THE BOARD The Employer submitted that what is being asked of this tribunal is within the exclusive jurisdiction of the Board. The Employer relied on sections 23(1) and 97(6) of the Act:
23.(1) Complaints – The Board shall examine and inquire into any complaint made to it that the employer or an employee organization, or any person acting on behalf of the employer or employee organization, has failed
(c) to give effect to a decision of an adjudicator with respect to a grievance;
97.(6) Powers of Board with respect to decision on grievance – The Board may, in accordance with section 23, take such action as is contemplated by that section to give effect to the decision of an adjudicator on a grievance but shall not inquire into the basis or substance of that decision.”
Section 23(1)(c) requires the Board to examine and inquire into a complaint that an employer has failed to give effect to the decision of an adjudicator. It does not prevent an adjudicator from discharging his duty to make a final determination of the issue in dispute.
Section 97(6) simply circumscribes the power of the Board under section 23. In exercising its authority under section 23, the Board may not inquire into the basis or substance of the decision.
The Grievor argues that the Employer has failed to give effect to the award by not paying the separation benefit. That complaint must be taken to the Board.
DATED at Vancouver, British Columbia, this 18th day of March, 1999.
_________________________ Colin Taylor, Q.C.