The Professional Institute of the Public Service of
Canada (Applicant)
v.
Attorney General of Canada (Respondent)
Court of Appeal, Jackett C.J., Thurlow J., and
Bastin D.J.—Ottawa, December 15, 1972.
Judicial review—Public Service—Whether lawyers in
Canadian Transport Commission "employed in confidential
capacity'—Finding by Public Service Staff Relations
Board—Review of—Public Service Staff Relations Act,
R.S.C. 1970, c. P-35, s. 2, 25.
JUDICIAL review.
J. C. Hanson, Q.C., for applicant.
I. G. Whitehall for respondent.
JACKETT C.J. (orally)—This is an application
to this Court under section 28 of the Federal
Court Act to review and set aside a decision of
the Public Service Staff Relations Board dated
August 10, 1971, as confirmed by a review of
that decision by that Board dated June 13,
1972.
To understand the significance of the deci
sion that is the subject matter of this applica
tion, it is necessary to examine certain of the
provisions of the Public Service Staff Relations
Act (hereinafter referred to as "the Act").
Part II of the Act provides for the regulation
of collective bargaining and the negotiation of
collective agreements in the Public Service of
Canada and, for that purpose, provides for cer
tification by the Public Service Staff Relations
Board (established pursuant to section 11 of the
Act) of employee organizations as bargaining
agents for employees in bargaining units that
have been determined by it to be appropriate
for collective bargaining. For the purposes of
the Act an "employee" is defined by section 2
of the Act as being a person employed in the
Public Service other than certain excepted
classes. One of those excepted classes is "(h) a
person employed in a managerial or confidential
capacity," and that excepted class is more
specifically defined by section 2 as follows:
"person employed in a managerial or confidential capacity",
means any person who
(a) is employed in a position confidential to the Governor
General, a Minister of the Crown, a judge of the Supreme
or Exchequer Court of Canada, the deputy head of a
department or the chief executive officer of any other
portion of the Public Service, or
(b) is employed as a legal officer in the Department of
Justice,
and includes any other person employed in the Public
Service who in connection with an application for certifica
tion of a bargaining agent for a bargaining unit is designated
by the Board, or who in any case where a bargaining agent
for a bargaining unit has been certified by the Board is
designated in prescribed manner by the employer, or by the
Board on objection thereto by the bargaining agent, to be a
person
(c) who has executive duties and responsibilities in rela
tion to the development and administration of govern
ment programs,
(d) whose duties include those of a personnel administra
tor or who has duties that cause him to be directly
involved in the process of collective bargaining on behalf
of the employer,
(e) who is required by reason of his duties and respon
sibilities to deal formally on behalf of the employer with a
grievance presented in accordance with the grievance
process provided for by this Act,
(f) who is employed in a position confidential to any
person described in paragraph (b), (c), (d) or (e), or
(g) who is not otherwise described in paragraph (c), (d),
(e) or W, but who in the opinion of the Board should not
be included in a bargaining unit by reason of his duties
and responsibilities to the employer; .. .
It will be noted from a study of this latter
definition that, in addition to the persons
described by paragraphs (a) and (b) of the defi
nition, the expression "person employed in a
managerial or confidential capacity" includes,
in a case where a bargaining unit has been
certified by the Board "any other person
employed in the Public Service ... who ... is
designated in prescribed manner by the employ
er, or by the Board on objection thereto by the
bargaining agent, to be a person" who falls
within paragraph (c), (d), (e), () or (g), and that
paragraph () puts in that category a person who
is employed in "a position confidential to any
person" described in paragraph (b), (c), (d), or
(e).
What happened in this case is that, a bargain
ing agent having been certified for a bargaining
unit, the employer proposed that two lawyers—
Messrs. Cuddihy and Norton—who work for
the Canadian Transport Commission, be desig
nated as persons falling under paragraph (D of
the definition of "person employed in a
managerial or confidential capacity" (or under
section 2(u)(vi) of the Act as it was before the
Revised Statutes of 1970), the bargaining agent
objected, and the Board then, after an appropri
ate investigation and after giving the parties a
hearing, delivered a decision on August 10,
1971, by which it designated the two lawyers as
persons employed in a managerial or confiden
tial capacity under the definition of that expres
sion in the Act.
The lawyers in question were designated by
the employer as being "confidential to" the
Director General of Legal Services, Canadian
Transport Commission, who had been previous
ly designated as a person employed in a
managerial or confidential capacity under para
graphs (c) and (e) of the definition.
The relevant part of the Board's decision
reads as follows:
5. The term "confidential" is difficult or impossible of
exact or precise definition. It seems even less possible to
define with precision the relationship described by the
phrase "confidential to any person". Such a relationship
may be seen to exist under a variety of circumstances and
may vary in reference to particular relationships involved.
The dictionary meaning of the word "confidential" is of
little assistance. The Shorter Oxford English Dictionary
defines "confidential" as meaning:
1. Of the nature of confidence; spoken or written in
confidence 1773.
2. Betokening private intimacy 1759.
3. Enjoying another's confidence; entrusted with secrets
1805.
The word "confidence" is defined as meaning:
The mental attitude of trusting in or relying on; firm trust,
reliance, faith.
If we were to apply these definitions literally, the result
would be that so many public servants would be subject to
designation that the collective bargaining features of the Act
would cease to have any real significance as an instrument
for regulating the relations between the Employer and mem
bers of the Public Service.
6. At this stage, we cannot go beyond some very broad
general statements of principle and these statements are not
to be taken as being exhaustive by any means. It appears to
us that Parliament must have intended head (vi) to apply at
least in the following circumstances:
(i) Where the duties of a position occupied by a person
described in heads (ii) to (v) of section 2(u) are so
onerous that he is compelled to delegate to another a
significant portion of his duties of the type that constitute
the basis for his having been designated or of the type
that warrant a finding that he is a person described in
heads (ii) to (v) of section 2(u) and where the duties so
delegated require skill, judgment, trust and confidence;
(ii) Where the services rendered by the person alleged to
be confidential are of such a nature that the person
designated or described under heads (ii) to (v) of section
2(u) would normally have to rely to a substantial extent
on the "confidential" person to perform them, having
regard to modern technology and office organization.
The second type of confidential person just described
would include, inter alia, a person performing secretarial
duties of a requisite kind for a person designated or
described under heads (ii) to (v) of section 2(u) and related
to the duties that constitute the basis for his having been
designated or described. There may appear to be a lack of
definition in what we have said; this is inherent in the
difficult process we face constantly in determining which
persons are "confidential".
7. Having regard to the evidence contained in the reports
of the examiner, we find that Messrs. Cuddihy and Norton
are persons who are employed in positions confidential, in
the sense of that term as set out above, to Mr. Fortier, a
person designated as a person employed in a managerial or
confidential capacity under head (iii) of section 2(u) of the
Act. They are accordingly designated as persons employed
in a managerial or confidential capacity under section 2(u)
of the Act.
It is also appropriate to mention at this point
that under the heading "Basic Rights and Prohi
bitions" section 8 of the Act provides that "No
person who is employed in a managerial or
confidential capacity, whether or not he is
acting on behalf of the employer, shall partici
pate in or interfere with the formation or
administration of au employee organization or
the representation of employees by such an
organization."
Finally, it should be mentioned that, by letter
dated September 7, 1971, the applicant request
ed the Board to review its decision of August
10, 1971, under section 25 of the Act, which
reads as follows:
25. The Board may review, rescind, amend, alter or vary
any decision or order made by it, or may rehear any
application before making an order in respect thereof,
except that any rights acquired by virtue of any decision or
order that is so reviewed, rescinded, amended, altered or
varied shall not be altered or extinguished with effect from
a day earlier than the day on which such review, rescission,
amendment, alteration or variation is made.
The letter requesting the review reads as
follows:
Pursuant to Section 25 of the Public Service Staff Rela
tions Act, I am hereby requesting the Public Service Staff
Relations Board to review its decision of August 10th, 1971
(File 172-2-56), in which it decided that Mr. M.J. Cuddihy
and Mr. N.C. Norton are persons employed in a position
confidential to Mr. J.M. Fortier, within the meaning of
Section 2(u) (vi) of the Act.
In paragraph 7 of its decision, the Board stated the
following:
Having regard to the evidence contained in the reports of
the examiner, we find that Messrs. Cuddihy and Norton
are persons who are employed in positions confidential,
in the sense of that term as set out above, to Mr. Fortier,
a person designated as a person employed in a managerial
or confidential capacity under head (iii) of section 2(u) of
the Act.
On a careful examination of the Examiner's report and
his supplementary report, the Institute can find no evidence
which would bring Messrs. Cuddihy and Norton within the
scope of Section 2(u) (vi) of the Act, as interpreted by the
Board in paragraph 6 of its decision. The only references in
the Examiner's report or supplementary report to the rela
tionship between Mr. Cuddihy and Mr. Fortier are con
tained in paragraphs 8, 10, 11 of the report, and in the
Institute's submission these references indicate neither
(i) that Mr. Fortier's duties are so onerous that he is
compelled to delegate to Mr. Cuddihy a significant por
tion of his executive duties and responsibilities in relation
to the administration and development of government
programs;
nor
(ii) that the services rendered by Mr. Cuddihy are of such
a nature, having regard to modern technology and office
organization, that Mr. Fortier would normally have to rely
to a substantial extent on Mr. Cuddihy to perform the
duties which led to his own exclusion.
For the above reasons, the Institute requests the Board to
review its decision relating to Messrs. Cuddihy and Norton,
as it contends that these employees should not be excluded
from the Law Group bargaining unit.
On June 13, 1972, the Board delivered a deci
sion reading as follows:
The Board has given careful consideration to the request
of the Bargaining Agent that the Board review its decision
of August 10, 1971, in this matter as well as to the represen
tations of the Bargaining Agent in support of that request.
The Board confirms its decision of August 10, 1971.
The sole attack on the decision of August 10,
1971, set out in the applicant's Memorandum in
this Court is that it was based "on an erroneous
finding of fact made in a perverse and capri
cious manner without regard for the material
before it" in that the material before the Board
contained no evidence which could bring the
two lawyers in question within the ambit of
paragraph (f) of the definition of "person
employed in a managerial or confidential
capacity" as interpreted by the Board in its
decision.
The Board's decision of June 13, 1972, con
firming its earlier decision is also attacked by
the applicant's Memorandum by paragraphs 3
and 4 thereof which read, omitting the authori
ties cited, as follows:
3. (a) The decision by the Public Service Staff Relations
Board of June 13th, 1972, being a confirmation by review
of its earlier decision of August 10th, 1971, should be
viewed as a revival or restatement or reiteration of its
earlier decision. Accordingly, this Review requested by the
Applicant before this Court can call into question the
August 10th, 1971 decision of the Public Service Staff
Relations Board, as well as, its decision of June 13th, 1972.
(b) The Public Service Staff Relations Board in its deci
sion of June 13th, 1972, should have made a complete and
thorough review of its August 10th, 1971, decision and this
was or should have been, therefore, a new consideration of
all the material and evidence that entered into the mind of
the said Board in 1971 together with any representations,
material or evidence reviewed or considered by the said
Board in making its decision of June 13th, 1972.
4. It was a denial of natural justice by the Public Service
Staff Relations Board to close their minds to the representa
tions made by the Applicant and not make an entire review
of their 1971 decision.
In so far as the attack on the decision of
August 10, 1971 is concerned, as it appears to
me, on a study of the Case and Memoranda, a
sufficient basis for the Board's decision is to be
found in the following portions of the report of
the examiner on which the decision was based:
The witness acts under the general direction of the Director
General of Legal Services and provides legal advice to the
Commission and to various committees such as the Com-
mittee on the Railway Transport, the Air Transport Com
mittee and the Water Transport Committee.
The witness is in daily contact with the Director General of
Legal Services and he said that he had a full exchange of
views with his Director.
According to the witness, when he is assigned to work as
counsel for a committee, he gives his advice and opinions
directly to the committee, even though he may from time to
time discuss certain legal points with his Director before so
doing. The same is true in respect of assignments which
require him to deal with the President, Vice-President, and
the Secretary of the Canadian Transport Commission.
A certain knowledge of government organiza
tion and of the duties of a lawyer employed to
give legal advice may be assumed on the part of
the Public Service Staff Relations Board. Its
work is such that it must be constantly familiar
izing itself with such matters and it would be an
unnecessary and a useless exercise to spell such
matters out on the record of each proceeding
that comes before it. When a portion of the
government service has a legal adviser, in the
nature of things, his services are provided on a
confidential basis, and, when it has a legal
branch, the responsibility of the director of that
branch is to provide such services, and to dis
charge that responsibility he must have the help
of lawyers whose services must be provided to
him or as directed by him on a confidential
basis.' If such a lawyer is not in a confidential
position in relation to the director of his branch,
or as the statute puts it, "confidential to" the
director, I have difficulty to conceive, on the
basis of my experience, of any person in the
Public Service who is "confidential to" any
other person in the Public Service.
With reference to the attack on the decision
in response to the request for a review of the
original decision, I am at a loss to appreciate the
complaint. There was no request for an oppor
tunity to present new evidence or further argu
ment. The letter of request asked that the Board
reconsider the matter and spelled out quite
clearly what reconsideration it wanted. The
Board, after giving careful consideration to the
request "as well as the representations ... in
support of the request", confirmed its decision.
The Board did exactly what was requested of it
and I do not see any ground for complaint. In
saying this, I do not wish to be taken as accept
ing any suggestion that the Board is under an
obligation to exercise its powers to "rehear"
any application or to "review" a decision or
order immediately after it has taken its original
action except where some valid reason for its
doing so has been made out by the person
asking it to do so.
In my view, the application must be
dismissed.
* * *
THURLOW J. and BASTIN D. J. concurred.
I This is, undoubtedly, why legal officers of the Depart
ment of Justice were excluded as a class.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.