Date: 20220330

File: 566-02-11845

 

Citation: 2022 FPSLREB 23

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Jorn Soegard

Grievor

 

and

 

DEPUTY HEAD

(Correctional Service of Canada)

 

Respondent

Indexed as

Soegard v. Deputy Head (Correctional Service of Canada)

In the matter of an individual grievance referred to adjudication

Before: Amélie Lavictoire, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Corinne Blanchette, Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN

For the Respondent: Alexandre Toso, counsel

Decided on the basis of written submissions,

filed November 26 and December 9, 2021, and February 8 and 11, 2022.

REASONS FOR DECISION

I. Request before the Board

[1] In Soegard v. Deputy Head (Correctional Service of Canada), 2017 PSLREB 52 (“the Soegard decision”), a panel of the former Public Service Labour Relations and Employment Board (PSLREB) rendered a decision reinstating the grievor, Jorn Soegard. In that decision, the PSLREB Member retained jurisdiction for a period of 90 days to resolve any issues arising from the implementation of the decision. It is not uncommon to leave it to the parties to work out the implementation of a remedy that a quasi-judicial decision maker ordered. The uncommon part of this case is how the matter has unfolded since that decision was rendered.

[2] The Soegard decision was rendered in May 2017. The term of the PSLREB Member who rendered the decision ended a few weeks later. The implementation of the Soegard decision was not complete. The parties sought and obtained authorization for the former PSLREB Member to remain involved in his personal capacity in the implementation of that decision. However, he had no further involvement in the matter.

[3] On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the PSLREB and the titles of the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) and the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act (FPSLREBA), and the Federal Public Sector Labour Relations Act (FPSLRA).

[4] Some four years after the Soegard decision, on November 26, 2021, the grievor requested that the Board convene the parties to a case management conference to discuss outstanding issues in the implementation of the Soegard decision. According to the grievor, the Board still has jurisdiction to “finalize the decision in this case” and to ensure the implementation of outstanding issues that he described as the “... implied consequences of the nullification of the termination of employment” ordered in that decision.

[5] The deputy head of the Correctional Service of Canada (“the respondent”) opposes the request. It argues that the Board is functus officio, meaning that its authority to deal with the matter has come to an end.

II. History of the case

[6] On May 12, 2017, PSLREB Member Michael F. McNamara rendered the Soegard decision as a panel of the PSLREB. The relevant portions of the order in that decision are the following:

...

45 The grievance is upheld in part.

46 I void the termination dated August 19, 2015.

47 I reinstate the grievor with full pay and benefits effective August 19, 2015.

...

50 I will remain seized of this grievance for 90 days from the date of this decision to resolve any issues arising from implementing this decision.

...

 

[7] Mr. McNamara’s term as a PSLREB member ended on May 31, 2017 (see Order-in-Council P.C. 2014-1197, dated October 30, 2014). At that time, s. 8(4) of the Public Service Labour Relations and Employment Board Act provided as follows for an eight-week period during which Mr. McNamara could — at the PSLREB chairperson’s request — carry out or complete duties that he would otherwise have had in connection with a matter in which he participated as a member:

8 (4) A person who ceases to be a member for any reason other than removal may, at the request of the Chairperson, within eight weeks after ceasing to be a member, carry out and complete any duties or functions that they would otherwise have had in connection with any matter that came before the Board while they were still a member and in respect of which there was any proceeding in which they participated as a member. For that purpose, the person is deemed to be a part-time member.

8 (4) Le commissaire qui, pour tout motif autre que la révocation, cesse de faire partie de la Commission peut, sur demande du président et dans un délai de huit semaines après la fin de son mandat, s’acquitter intégralement des attributions qui auraient été alors les siennes en ce qui concerne toute affaire soumise à la Commission dans le cadre d’une instance à laquelle il a participé en sa qualité de commissaire avant la fin de son mandat. Il est alors réputé être un commissaire à temps partiel.

 

[8] According to the Board’s record, the PSLREB’s chairperson requested that Mr. McNamara complete his duties in this matter by July 26, 2017, which was the date on which the eight-week period expired.

[9] The procedural history described in the following paragraphs reflects the Board’s record with respect to this matter.

[10] In an email dated July 28, 2017, the grievor requested that Mr. McNamara exercise the jurisdiction that he had retained in the Soegard decision to help the parties resolve four outstanding issues with respect to the implementation of that decision. Those issues pertained to the grievor’s work schedule, whether he was entitled to interest on the amount owed to him, the method to be used to calculate the overtime that he would have worked were it not for the termination, and the retroactive payment of pay and benefits.

[11] The grievor’s request was made after the period set out in the legislation for Mr. McNamara to complete his duties in this matter expired but before the 90-day period set out in the Soegard decision expired.

[12] On August 9, 2017, the Board’s chairperson wrote to the parties, informing them that because the 90-day period set out in the Soegard decision would end on the following day and because the period set out in legislation for Mr. McNamara to complete his duties in this matter had already expired, Mr. McNamara could no longer deal with “... issues arising from the implementation ...” of the Soegard decision unless the parties consented to his involvement. Both parties consented.

[13] On October 25, 2017, the Board’s chairperson made an order authorizing
“... Michael F. McNamara to continue to remain seized of the grievance to resolve any issues arising from its implementation.” On November 6, 2017, the parties were informed that the Chairperson had “... authorized Mr. McNamara to continue to remain seized of this matter.”

[14] A case management conference was scheduled in November 2017. Mr. McNamara was to chair it, but it was postponed at the parties’ request. They had resolved some outstanding issues and wanted the opportunity to continue their discussions toward resolving the remaining issues.

[15] Mr. McNamara had no further involvement in this matter.

[16] From November 2017, and until the grievor’s November 2021 communication requesting a case management conference, the Board remained without news from the parties.

III. The parties’ positions

[17] The grievor submits that the parties have been in discussions since the Soegard decision was issued. Neither party has acted as though that decision has been fully implemented. According to him, changes to the respondent’s labour relations representatives, his illness, and his absence from the workplace contributed to the lack of progress resolving the outstanding issues and to the delay requesting that the Board continue its involvement in this matter.

[18] The grievor seeks clarification orders that, according to him, are not beyond the scope of the Soegard decision. He alleges that of the four issues outstanding in the implementation of the Soegard decision in 2017, when the parties sought Mr. McNamara’s continued involvement, two remain outstanding: the payment of interest owed to him, and the method for calculating the compensation for his missed overtime opportunities. He argues that although the Soegard decision does not reflect his submissions on the issue of remedy, compensation for “... lost [sic] of salary, benefits, lieu hours, lost overtime opportunities, leave accruals, pension rights with interest” was requested at the hearing before Mr. McNamara. By voiding the termination, Mr. McNamara intended to put the grievor in the position in which he would have been but for his termination. Although not recorded in the decision, the method of calculating lost overtime opportunities and the payment of interest are implied consequences of the grievor’s reinstatement. They are issues related to implementing the Soegard decision and are within the jurisdiction retained by the Board. According to the grievor, the doctrine of functus officio favours, rather than prevents, the Board’s intervention to ensure that the Soegard decision is properly implemented.

[19] In support of his position, the grievor cites the following cases: Amos v. Canada (Attorney General), 2011 FCA 38, Toronto (City) v. C.U.P.E., Local 416 (2002), 113 L.A.C. (4th) 282, and this Board’s involvement with respect to the implementation of its order in Lyons v. Deputy Head (Correctional Service of Canada), 2020 FPSLREB 122.

[20] In addition to the above, the grievor argues that the Board’s chairperson authorized Mr. McNamara’s continued involvement. The Chairperson’s order did not include an end date or total duration during which Mr. McNamara would remain seized of the matter. According to him, the order contained no indication that the Board would consider his July 2017 request for Mr. McNamara’s involvement abandoned with the passage of time. He invites the Board to interpret the order using general interpretation principles and to recognize that there is no limit to how long Mr. McNamara was authorized to exercise his jurisdiction in this matter.

[21] The respondent opposes the request for a case management conference. It argues that the Board is functus officio for two reasons.

[22] Firstly, it argues that the initial 90-day period for which Mr. McNamara retained jurisdiction has long since expired. Although the respondent agreed to Mr. McNamara being assigned to resolve outstanding issues in November 2017, it submits that it never consented to the Board remaining seized of the matter indefinitely. The Board cannot retain perpetual authority; nor did the Board contemplate reserving jurisdiction for more than four years. The respondent would not have consented to such an extension of retained jurisdiction. It submits that it would need to express its consent anew for Mr. McNamara or another Board member to have jurisdiction over this matter.

[23] According to the respondent, the request currently before the Board does not seek the implementation of the PSLREB’s order in the Soegard decision. Rather, the grievor is attempting to reopen the proceedings, to obtain a determination as to whether the respondent is liable with respect to issues not addressed in that decision. The Board is functus officio with respect to making any additional orders, and if the grievor wants to ensure the enforcement of the order in the Soegard decision, he may file that order in the Federal Court, pursuant to s. 234 of the FPSLRA and s. 35 of the FPSLREBA.

[24] Secondly, the respondent submits that the Board is functus officio because the issues that the grievor qualifies as outstanding did not form part of the jurisdiction retained in the Soegard decision with respect to reinstating the grievor with “full pay and benefits”. What was argued before the PSLREB or requested of it is irrelevant to the issue of retained jurisdiction in the context of implementing a decision. The Board’s jurisdiction is determined by what was ordered. The Soegard decision does not order overtime and interest; nor does it address those issues. The respondent submits that in the absence of an order specifically ordering the payment of overtime, when no overtime has been worked, or requiring the payment of interest, neither issue can be found to be included in the plain and ordinary meanings of the terms “reinstate[d] ... with full pay and benefits” or “void[ing] the termination” used in the Soegard decision.

IV. Analysis

[25] The circumstances of this case are unusual.

[26] A final and binding decision was rendered in this matter in May 2017. Mr. McNamara’s term as a member of the PSLREB ended that same month. More than four years later, the grievor asks the Board to convene the parties to a case management conference with a goal of obtaining an order clarifying what he describes as outstanding issues in the implementation of the Soegard decision.

[27] I am of the opinion that Mr. McNamara’s authority to deal with this matter has come to an end and that the Board has no authority over the implementation of the Soegard decision.

[28] Seeing as Mr. McNamara’s 90-day reserve of jurisdiction in the Soegard decision and the 8-week period set out at the time in the Public Service Labour Relations and Employment Board Act have long since expired, the only possible remaining source of jurisdiction that the grievor can invoke is the Chairperson’s October 2017 order.

[29] The Chairperson’s order did not authorize Mr. McNamara’s involvement as a “panel” of the Board, as defined at s. 37(1) of the FPSLREBA; nor did it authorize the Board or another Board member to be seized of this matter. That order authorized Mr. McNamara, in his personal capacity, to exercise the jurisdiction he retained in the Soegard decision; see s. 223(2) of the FPSLRA.

[30] It might have been more prudent for the Chairperson’s order to specify a duration or end date by which Mr. McNamara ought to exercise that jurisdiction, but it did not. More than four years have elapsed since the Chairperson made her order and Mr. McNamara’s last involvement in this matter.

[31] The doctrine of functus officio exists to allow the finality of a proceeding by marking a definitive endpoint to it; a final decision. Subject to certain exceptions, upon rendering a final decision, a decision maker has exhausted his or her jurisdiction. If that decision maker has reserved the right to exercise jurisdiction for a certain period, the doctrine applies once the time has elapsed, unless the reserve of jurisdiction is extended.

[32] I am of the opinion that the doctrine of functus officio applies in the present case. Although the doctrine must be applied with flexibility with respect to the decisions of administrative tribunals (see Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 at page 862), there are limits to what that flexibility can allow.

[33] The Chairperson’s order cannot be read so broadly as to continue to give Mr. McNamara authority over this matter more than 52 months after the issuance of that order and more than 58 months after the decision on the merits was issued. To hold otherwise would be contrary to the spirit and intent of the order and akin to the Board retaining jurisdiction perpetually, which it cannot do; see Canadian Union of Public Employees, Local 2855 v. Ontario Library Services - North (2002), 114 L.A.C. (4^th) 322. Nor would it be in accordance with Board practice or in furtherance of the legislative objective of ensuring the efficient resolution of disputes about terms and conditions of employment, as set out in the preamble to the FPSLRA.

[34] The Chairperson authorized Mr. McNamara’s continued involvement over the implementation of the Soegard decision. However, that jurisdiction cannot be entirely open-ended, and the analysis as to whether jurisdiction has lapsed is specific to the context and manner in which it was retained or prolonged. Jurisdiction is not solely dependent on whether the parties have yet to resolve issues flowing from the implementation of a Board order.

[35] The Chairperson’s authorization of Mr. McNamara’s involvement was dependent on the parties’ consent, as reflected in the Board’s August 9, 2017, correspondence to the parties and the text of the order itself. To accept the grievor’s interpretation of the Chairperson’s order as having no limit in time would lead to a result that would be unreasonable, unfair, and contrary to the FPSLRA’s objective of efficiency in the resolution of labour relations disputes.

[36] The respondent’s consent was provided shortly after the Soegard decision was rendered and in a specific context. Were I to accept the grievor’s position, this consent would be deemed perpetual and binding on the respondent some 4 years later, despite the absence of any indication that the respondent intended to provide such an open-ended consent. The grievor would be entitled to seize the Board of an unresolved matter alleged to form part of a Board order some 5, 10, or 15 years after that order was rendered. Neither the parties’ written submissions nor the documents filed by the grievor in support of his request suggest that the parties expected — in 2017 — the Board to issue an order giving Mr. McNamara jurisdiction for such a prolonged period.

[37] The Board and parties to labour relations disputes are entitled to expect and exercise a reasonable degree of diligence in resolving issues that remain outstanding in the implementation of Board decisions. The case law that the grievor relies on is of little assistance to him. Those cases are easily distinguishable either based on their facts and on the high degree of diligence that the parties to those cases displayed pursuing their rights and ensuring the full implementation of Board decisions. The passage of time makes this matter unique.

[38] The Board’s record shows that since August 9, 2017, the grievor has known that Mr. McNamara ceased to be a PSLREB member. Although in July 2017, the grievor requested that Mr. McNamara exercise the jurisdiction that he had retained in the Soegard decision, and knew of the October 2017 order authorizing Mr. McNamara to continue to be seized of the matter, he appears to have assumed that Mr. McNamara would remain available indefinitely or that the Board would simply assign a different member to the matter. He cannot be said to have acted diligently in seeking the Board’s assistance in the resolution of his outstanding disputes with the respondent. More than four years elapsed before the grievor took steps to inform the Board of the status of the implementation of the PSLREB’s order and to seek its assistance.

[39] Although the grievor identified changes in representatives and his illness as factors that contributed to the lack of progress resolving his outstanding disputes with the respondent, he does not allege that those factors prevented him from asking — at any time before November 26, 2021 — that Mr. McNamara exhaust his jurisdiction over the implementation of the Soegard decision. He has provided no explanation as to why he took no steps between November 2017 and November 2021 to keep the Board apprised of the status of discussions between the parties or to inform it of a continued need or interest for Mr. McNamara’s involvement in resolving issues arising from the implementation of the Soegard decision. He appears to have felt no sense of urgency in ensuring that Mr. McNamara remain available to exercise his jurisdiction.

[40] As previously explained, the only possible source of jurisdiction that the grievor could invoke is the Chairperson’s order authorizing Mr. McNamara, in his personal capacity, to exercise the jurisdiction he retained in the Soegard decision. That order cannot be read in a vacuum. When it is read in light of Board practice, the preamble of the FPSLRA, the expectations of the parties at the time, and the jurisprudence prohibiting the perpetual retention of jurisdiction, I conclude that Mr. McNamara is functus officio. His jurisdiction has lapsed. The Board has no authority over the implementation of the Soegard decision. Furthermore, I find that the grievor has not been diligent in pursuing his rights and in requesting that Mr. McNamara exercise jurisdiction to resolve issues arising from the implementation of the Soegard decision.

[41] In light of my conclusion that jurisdiction has lapsed, it is not necessary for me to decide whether the issues that the grievor identified form part of the order in the Soegard decision.

[42] The grievor’s request that the Board exhaust the jurisdiction to resolve issues arising from implementing the Soegard decision is denied. Consequently, his request for a case management conference is denied.

[43] For all these reasons, I order Board file no. 566-02-11845 closed.

[44] Despite the closure of the Board’s file, the parties may nonetheless request the assistance of the Board’s Mediation and Dispute Resolution Services in resolving any issues still outstanding between them. Furthermore, should the enforcement of the PSLREB’s order in the Soegard decision become an issue, s. 234 of the FPSLRA and s. 35 of the FPSLREBA make provision for filing an order of the Board with the Federal Court, in specified circumstances.

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

(The Order appears on the next page)

V. Order

[46] The Board declares that the jurisdiction to resolve issues arising from the implementation of the order in Soegard v. Deputy Head (Correctional Service of Canada), 2017 PSLREB 52, has lapsed.

[47] The request for a case management conference in Board file no. 566-02-11845 is denied.

[48] The Board orders Board file no. 566-02-11845 closed.

March 30, 2022.

Amélie Lavictoire,

a panel of the Federal Public Sector Labour Relations and Employment Board