Reference re Public Service Staff Relations Act
Court of Appeal, Jackett C.J., Cameron and
St.-Germain D.JJ.—Ottawa, May 15, 16 and 28,
1973.
Public service—Arbitration of dispute concerning terms of
employment—Whether Director of Pay Research Bureau a
compellable witness—Order to produce pay research docu-
ments—Public Service Staff Relations Act, s. 107.
Jurisdiction—Reference of question of law to Court by
federal tribunal—Federal Court Act, s. 28(4)—Reference
restricted to question of law arising in proceedings before
tribunal.
The Professional Institute of the Public Service of Canada
was bargaining agent for certain professional employees in
the public service. A dispute concerning terms and condi
tions of the employment was referred by the Public Service
Staff Relations Board to an arbitration tribunal. In the
course of the hearing of the dispute, the tribunal at the
Institute's request ordered the Director of the Pay Research
Bureau to produce certain documents relative to the dispute
and to appear for interrogation thereon. The Director object
ed on the ground that he was exempted from giving evi
dence by section 107 of the Public Service Staff Relations
Act. The Public Service Staff Relations Board agreed and
vacated its order. At the request of the Institute the effect of
section 107 of the Public Service Staff Relations Act was
referred by the Board to this Court pursuant to section 28(4)
of the Federal Court Act, which permits the reference by a
federal tribunal of "any question or issue of law, of jurisdic
tion or of practice and procedure to the Court of Appeal for
hearing and determination".
Held (per curiam), the reference was not within section
28(4) which contemplates the reference by a tribunal of a
question of law arising at some stage of the tribunal's
proceedings and can only be made by the tribunal itself, and
moreover a question of law that must be determined for the
purpose of dealing with the matter before the tribunal and
not an academic question.
Per Jackett C.J. (Cameron and St.-Germain D.JJ. express
ing no opinion), members of the Pay Research Bureau are
entitled to the protection of section 107 of the Public Service
Staff Relations Act.
APPLICATION.
COUNSEL:
J. C. Hanson, Q.C., for the Professional
Institute of the Public Service.
R. Vincent for Deputy Attorney General of
Canada.
J. M. Coyne, Q.C., and F. Lemieux for Pay
Research Bureau.
SOLICITORS:
Heron, Hanson and Carleton, Ottawa, for
the Professional Institute of the Public
Service.
Deputy Attorney General of Canada.
Herridge, Tolmie, Gray, Coyne and Blair,
Ottawa, for Pay Research Bureau.
JACKETT C.J.—Section 28(4) of the Federal
Court Act, R.S.C. 1970, c.10 (2nd Supp.) reads
as follows:
(4) A federal board, commission or other tribunal to
which subsection (1) applies may at any stage of its proceed
ings refer any question or issue of law, of jurisdiction or of
practice and procedure to the Court of Appeal for hearing
and determination.
On January 18, 1973, there was filed in the
Registry of this Court a document reading as
follows:
IN THE FEDERAL COURT OF APPEAL
IN THE MATTER OF:
A reference pursuant to subsection 28(4) of the Federal
Court Act of a question or issue of law that has arisen in
connection with a reference to the Public Service Staff
Relations Board under section 23 of the Public Service Staff
Relations Act by the Professional Institute of the Public
Service of Canada in connection with a decision of the
Public Service Arbitration Tribunal.
REFERENCE PURSUANT TO SUBSECTION 28(4) OF THE FEDERAL
COURT ACT
TAKE NOTICE that the Public Service Staff Relations Board
refers the following question or issue of law to this Honour
able Court for hearing and determination, namely:
Is it the effect of section 107 of the Public Service Staff
Relations Act that the Director of the Pay Research
Bureau or his representative is not required to produce to
the Public Service Arbitration Tribunal documents
obtained or prepared by the Pay Research Bureau in the
course of carrying out its duties or to give evidence with
respect thereto?
Dated at Ottawa this 18th day of January, 1973.
(Signed)
J. Finkelman, Chairman,
Public Service Staff Relations Board.
On January 29, 1973, on an application for
directions under Rule 1501, which came on for
hearing before me, counsel appeared on behalf
of the Professional Institute of the Public Ser
vice of Canada, the Pay Research Bureau and
the Deputy Attorney General of Canada and, as
a result of a discussion of the apparent impossi
bility of deciding the question posed by the
Reference as a "question or issue of law" in the
absence of any findings of fact and, in particu
lar, in the absence of any findings of fact as to
the nature or identity of the "Pay Research
Board", counsel undertook to endeavour to
agree on facts and on the terms of an order of
directions.
On March 12, 1973, there was filed in this
Court an "Agreed Statement of Facts" bearing
date March 9, 1973, signed by counsel for the
aforesaid parties and reading as follows:
IN THE MATTER of a reference regarding the application of
Section 107 of the Public Service Staff Relations Act to the
Pay Research Bureau.
AGREED STATEMENT OF FACTS
PART I-EVENTS LEADING TO REFERENCE
1. The Public Service Staff Relations Board on the 17th day
of December, 1968, under the provisions of the Public
Service Staff Relations Act, certified the Professional Insti
tute of the Public Service of Canada (hereinafter called "the
Professional Institute") as bargaining agent for all
employees of Her Majesty in right of Canada, as represent
ed by the Treasury Board, in the Economics, Sociology and
Statistics group in the Scientific and Professional category.
2. The Professional Institute, under the provisions of the
said Act, on the 20th day of December, 1968, specified
arbitration as the process for resolution of any dispute to
which it might be a party in respect of such bargaining unit.
3. On the 1st day of May, 1972, notice to commence
bargaining collectively was served by the said Professional
Institute on the Treasury Board.
4. On the 11th day of May, 1972, the said Professional
Institute, by notice in writing, to the Secretary of the Public
Service Staff Relations Board requested arbitration in
respect of the terms and conditions of employment of
employees in the said bargaining unit pursuant to section 63
of the said Act.
5. (a) On the 2nd day of June, 1972, a division of the Public
Service Arbitration Tribunal was duly constituted under the
provisions of the said Act consisting of:
René Lippé, Esq., Q.C. (Chairman) and Messrs. K. W.
Preston and J. T. Montague (Members).
(b) The matter in dispute was referred to the Tribunal by
the Chairman of the said Public Service Staff Relations
Board.
(c) The said dispute included inter alia a dispute on
salaries.
(d) The said Tribunal heard the parties to the dispute on
the 10th and 11th days of July, 1972, and the parties
submitted written rebuttals on the 2nd day of August, 1972.
6. On the 26th day of July, 1972 the said Professional
Institute, by notice in writing, requested the said Tribunal to
require the Pay Research Bureau to produce certain docu
ments to the Tribunal.
7. On the 29th day of September, 1972, the said Arbitration
Tribunal issued the following direction to the Pay Research
Bureau:
Orders the Director of the Pay Research Bureau, Mr. T. J.
Wilkins or his representatives to appear before the Tri
bunal on October 10th, 1972, at the hour of 10:30 o'clock
in the forenoon, at 110 O'Connor Street, on the tenth
floor, and to produce all pertaining documents relating to
the job matching, Ontario Provincial Civil Service, for
1970—before reclassification of Economists in the Feder
al Public Service and 1971—after such reclassification;
and there, if need be, to be interrogated on such
documents.
8. (a) On the 10th day of October, 1972, the Director of the
Pay Research Bureau appeared before the said Tribunal;
through his attorneys he requested that the Tribunal's sub
poena, dated the 29th day of September, 1972, be with
drawn or set aside by the Tribunal on the two following
reasons:
A—Section 107 of the Public Service Staff Relations Act
provides that neither the Director nor any officer or
employee of the Pay Research Bureau is required to give
evidence in proceedings before the Tribunal, and
B—In any event, the information referred to in the subpo
ena is privileged from disclosure under the common law
and authorities related thereto.
(b) The said Tribunal adjourned the proceedings for writ
ten argument to be completed and placed before it on or
before the 24th day of October and any replies thereto on or
before the 7th day of November, 1972.
9. In a decision dated the 14th day of December, 1972, and
first communicated to the said Professional Institute on the
18th day of December, 1972, the Arbitration Tribunal set
aside their Order issued on the 29th day of September,
1972.
10. On the 28th day of December, 1972, the said Profes
sional Institute referred the said decision as a question of
law and a question of jurisdiction to the Public Service Staff
Relations Board under the provisions of Section 23 of the
Public Service Staff Relations Act.
11. On the 15th day of January, 1973, the said Board
directed that the proceedings before the Public Service
Arbitration Tribunal, in the matter described in paragraphs 4
and 5, herein, be suspended until such time as the question
of law and or jurisdiction referred to the Board has been
determined.
12. On the 18th day of January, 1973, the said Board,
pursuant to Section 28(4) of the Federal Court Act, referred
the following question or issue of law to the Federal Court
of Appeal, namely:—
Is it the effect of Section 107 of the Public Service Staff
Relations Act that the Director of the Pay Research
Bureau or his representative is not required to produce to
the Public Service Arbitration Tribunal documents
obtained or prepared by the Pay Research Bureau in the
course of carrying out its duties or to give evidence with
respect thereto?
PART Il -PAY RESEARCH BUREAU
13. On the 4th day of September, 1957, the Civil Service
Commission created a branch within its organization called
the Pay Research Bureau (hereinafter called "the Bureau")
to assist it in its task of making salary recommendations to
the Government of Canada.
14. The purpose of the Bureau was to provide the Govern
ment of Canada, the Civil Service Commission and the Civil
Service Staff Associations with a central source of objective
information on pay, benefits and working conditions in
government, business and industry and to assemble and
analyse factual evidence of trends in outside employment.
15. A few months later the Civil Service Commission estab
lished an Advisory Committee on Pay Research. In connec
tion with the functioning of the Bureau, the Advisory Com
mittee on Pay Research, whose members were
representative of both the official and staff sides, was
responsible for advising on priorities, the selection of areas
and classes for special study and the presentation and
distribution of information.
16. The Public Service Staff Relations Act, (hereinafter
referred to as the "Act") as well as the Public Service
Employment Act, were assented to on the 23rd day of
February, 1967 and proclaimed in force on the 13th day of
March, 1967 bringing to employer-employee relations in the
Public Service of Canada a new direction in structure and
organization. On the 23rd day of February 1967 action was
started by Treasury Board to transfer the Bureau from the
jurisdiction of the newly established Public Service Staff
Relations Board. Attached hereto as Exhibit "1" is Treasury
Board Minute T.B. 665868 dated the 23rd day of February
1967 approving in principle the establishment of positions
for the Public Service Staff Relations Board (hereinafter
referred to as "the Board") including positions for the
Bureau.
17. The actual establishment of positions for the Board
including forty-three positions for the Bureau was provided
for on the 28th day of March 1967 when Treasury Board
passed, effective March 13th, 1967, its Minute 667480,
attached hereto as Exhibit "2".
18. On the 2nd day of August 1967 Treasury Board by its
Minute 669145, attached hereto as Exhibit "3", amended its
Minute 665868 by establishing additional positions for the
Bureau.
19. On the 31st day of May 1967, the Public Service
Commission under the provisions of the Public Service
Employment Act issued a blanket certificate in respect of
the personnel who staffed the Bureau which certificate is
attached hereto as Exhibit "4".
20. On the 6th day of April 1967, the Chairman of the
Board forwarded to the Director of the Bureau the terms of
reference for the Bureau. These terms of reference are
attached hereto as Exhibit "5".
21. The Annual Estimates for the Board as presented to and
approved by Parliament provide for the Bureau as an activ
ity of the Board. For 1972-73, the relevant provisions
appear at pages 20-28, 20-30 and 20-32 of the Annual
Estimates (Blue Book). A copy of these pages is attached
hereto as Exhibit "6".
22. The 1972-73 Estimates of the Board were incorporated
in Vote 25 as listed on page 20-28 in the Blue Book.
23. Chapter 15, 21 Elizabeth II, assented to the 30th of
June, 1972 being the Appropriation Act No. 3, 1972
approved Vote 25 and appropriated from and out of Con
solidated Revenue Fund the monies for the operations of the
Board.
24. As of February 19th, 1973 the number of full time
continuing employees in the Bureau is 61 in the following
classifications:
Senior Executive 3
Economics, Sociology and Statistics 4
Administrative Services 1
Computer Systems Administration 2
Personnel Administration 25
Clerical and Regulatory 15
Secretarial, Stenographic and Typing 11
25. The Advisory Committee on Pay Research referred to
in paragraph 3 has been continued. It presently consists of
the Vice Chairman of the Board as chairman and a number
of members representing the employer and the bargaining
agents. All members of the Committee, including its Chair
man, are appointed by the Chairman of the Board. Nomina
tions for membership on the Committee are sent to him by
the groups involved.
26. Since 1967 the Bureau has operated under the supervi
sion of its Director who reports to the Vice-Chairman of the
Board. The authority to give general direction to the Direc
tor of the Bureau is vested in the Chairman of the Board as
the Chief Executive Officer of the Board. In practice, this
direction is given by the Vice-Chairman of the Board. The
Director of the Bureau also receives advice from the Advi
sory Committee on Pay Research.
27. The following are some of the activities the Bureau
carries on consistent with its terms of reference attached
hereto as Exhibit "5":
(1) It obtains information on rates of pay, employee earn
ings, conditions of employment and related practices pre
vailing both inside and outside the Public Service to meet
the needs of the parties to bargaining.
(2) It develops and maintains a fund of up-to-date data
and conducts research studies to support the processes of
collective bargaining in the Public Service of Canada.
(3) It provides information on compensation and related
matters in the Federal Public Service, to industry, provin
cial and municipal governments, and to other organiza
tions when in the public interest.
28. The Bureau carries out other activities such as conduct
ing a programme of basic research in compensation and
related subjects; the Bureau is also responsible for replying
on behalf of the Government to inquiries and requests
concerning pay and related matters in the Public Service of
Canada. In addition, special studies of individual occupa
tions or specific conditions of employment may be conduct
ed. Included among such studies is an annual study of
Executive Compensation conducted for Treasury Board.
29. The Bureau gathers information on pay and working
conditions from employers in the private sector and in other
levels of government through the technique of personal
visits or correspondence in the context of a survey
programme.
30. Such information is supplied to the Bureau on a volun
tary basis upon assurances given by the Bureau that the
information so supplied will be treated in confidence and
held within the Bureau.
31. After such information has been received the Bureau
analyses it and presents its findings in the form of a formal
report using statistical techniques designed to preclude the
identification of individual company inputs. These reports
are made available to both Treasury Board as the central
employer as well as to the various separate employers and
the staff associations concerned.
32. In determining programs, in setting priorities and in
deciding on the information to be sought the Bureau
receives advice from the Advisory Committee on Pay
Research.
33. Officers and employees of the Board are appointed
under the Public Service Employment Act. This Act governs
the selection and appointment of employees to and within
the Public Service, tenure of office, periods of probation,
layoff and the release of employees for incompetence or
incapacity.
34. To administer a personnel programme for the Board, a
personnel administrator has been appointed. The request for
staff appointment, the description of duties and the person
nel action form of J. Ross McMahon, personnel administra
tor for the Board, is attached hereto as Exhibit "7".
35. Recommendations for appointments to positions in the
Bureau are made by the Director of the Bureau to the
Personnel Administrator, or to the Secretary of the Board or
to the Vice-Chairman of the Board, depending on the level
of appointment and they in turn make requests for staff
appointments to the Public Service Commission. Examples
of such requests by the personnel administrator are attached
hereto as Exhibits "8", "9" and "10".
36. The procedure followed when recommending promo
tions or salary increases for the personnel of the Bureau
varies with the classification group which such personnel is
related to. In respect of junior classification groups, promo
tion and salary increases are recommended by the Director
of the Bureau to the Vice-Chairman of the Board. In respect
of senior classifications, recommendations for promotion
are made by the Chairman of the Board to the Public
Service Commission as evidenced by Exhibit "11" attached
hereto. Similarly, for such levels, salary increases are
approved by the Chairman of the Board as evidenced by
Exhibit "12" attached hereto.
37. The Chairman or the Vice-Chairman of the Board has
jurisdiction over the personnel of the Bureau in such mat
ters as nominations for language training and leaves of
absence. Attached hereto as Exhibits "13" and "14" are the
nomination of Mr. T. J. Wilkins for the Bicultural Develop
ment Program and approval of the loan of Mr. Wilkins'
services to the Council of Maritime Premiers.
38. Delegation of signing authority with respect to appro
priations provided for the Board relating to journal vouch
ers, requisitions for cheques, certificates of performance,
purchase and service contracts has been made by the Presi
dent of the Privy Council as Minister responsible for the
Board, upon the recommendation of the Chairman, to the
Director and Assistant Directors of the Bureau as evidenced
by Exhibits "15" and "16", the instruments of delegation.
39. By Order-in-Council P.C. 1968-2032, dated the 29th
day of October, 1968, the Governor-in-Council designated
the Board as a "separate employer" for purposes of
Schedule I of the Act attached hereto as Exhibit "17".
40. By Order-in-Council P.C. 1968-18/1998, dated the 29th
day of October, 1968, the Governor-in-Council authorized
the Chairman of the Board to exercise and perform the
powers and functions of the Treasury Board conferred by
subsection (1) of section 7 of the Financial Administration
Act in relation to employees of the Board appointed under
the provisions of the Public Service Employment Act. A
copy of P.C. 1968-2032, P.C. 1968-1 8 / 1 998 and the letter of
transmittal of the Clerk of the Privy Council to the Chair
man of the Board dated October 31, 1968, are attached
hereto as Exhibit "18".
41. Exercising the authority vested in him by P.C. 1968-
2032 the Chairman of the Board on the 30th day of October,
1968 directed that the Public Service Terms and Conditions
of Employment SOR/67-118 apply mutatis mutandis to the
employees of the Board. The matters dealt with in the
regulations cover hours of work, overtime, holidays, leaves,
pay, casual, part time and seasonal employment and disci
pline. Attached hereto as Exhibit "19" is the Chairman's
directive dated the 30th day of October 1968.
42. Treasury Board directives on conditions of employment
are not as such applicable to employees of the Board.
However, the Chairman of the Board regularly reviews such
directives and, in his discretion, may adopt in whole or in
part these directives as being applicable to the Board's
personnel. Attached hereto as Exhibit "20" is Directive No.
49 dated the 8th day of March 1972 made by the Chairman
of the Board adopting Treasury Board Circulars 1971-188
and 1971-189 being the compendia of terms and conditions
of employment number 1 (Annex A) and number 2 (Annex
B). Attached hereto as Exhibit "21" is Directive No. 50
dated the 4th day of May 1972 made by the Chairman
adopting Treasury Board Circular 1972-55 dealing with
terms and conditions of employment for senior executive
officers.
43. All directives of the Chairman under the authorities
referred to are applied to the personnel who comprise the
Bureau as well as to other officers and employees of the
Board.
Also on March 12, 1973, an order of directions
under Rule 1501 was made in terms agreed
upon by counsel for the aforesaid parties. This
order specified the material that was to consti
tute the "case" for determination of the refer
ence (which includes all the documents evidenc
ing the proceedings before the Public Service
Arbitration Tribunal and the Public Service
Staff Relations Board giving rise to the "Refer-
ence" to this Court, the "Agreed Statement of
Facts" and the documents referred to therein),
and fixed a time for filing of memoranda of
points of argument by the parties.
In due course, the "Reference" came on for
hearing before this Court on May 15 and 16,
1973.
The question to which argument was directed
by counsel for all three parties at that hearing
was whether, on the facts as agreed on by the
parties who appeared in this Court, members of
the Pay Research Bureau were entitled to the
protection afforded by section 107 of the Public
Service Staff Relations Act, R.S.C. 1970, c. P-35
which section reads as follows:
Protection of Members and Staff
107. No member of the Board, of the Arbitration Tribunal
or of a conciliation board and no adjudicator, conciliator or
officer or employee of or person appointed by the Board
shall be required to give evidence in any civil action, suit or
other proceeding respecting information obtained in the
discharge of his duties under this Act.
The three subsidiary questions to which the
parties directed argument in particular were:
(a) Is a member of the Pay Research Bureau
an "officer or employee ... or" the Public
Service Staff Relations Board within the
meaning of those words in section 107?
(b) Was the matter before the Public Service
Arbitration Tribunal a "civil action, suit or
other proceeding" within the meaning of
those words in section 107? and
(c) Is the work carried on by a member of the
Pay Research Bureau carried on by him "in
the discharge of his duties under this Act"
within the meaning of those words in section
107?
I have had no difficulty in reaching the con
clusion that the members of the Pay Research
Bureau are entitled, on the facts agreed upon by
the parties, to the protection of 'section 107 of
the Public Service Staff Relations Act.
In so far as the first and third of the subsidi
ary questions are concerned, they must, in my
view, be answered in the affirmative once it is
ascertained that the Pay Research Bureau is a
branch of the Board's staff whose function is to
provide a service that is "incidental to the
attainment of the objects of this Act" within the
meaning of those words in section 18 of the
Public Service Staff Relations Act.' A study of
that Act shows that one of its most important
objects is to regulate remuneration and certain
other working conditions in large sectors of the
Public Service by collective agreement or arbi-
tral awards. On the facts agreed upon, it is clear
that the Pay Research Bureau's services are
provided to the employer and to the employees'
bargaining representatives with a view to facili
tating the attainment of that object. The Bureau
consists of officers and servants appointed as
required by section 17(3) of the Public Service
Staff Relations Act 2 because they are deemed
necessary by the Board to carry out this part of
the activities it carries on as authorized by sec
tion 18. A person so appointed is, in my view,
an "officer or employee of ... the Board"
within the meaning of those words in section
107 and what such a person does is done, in my
view, in the performance of his duties under the
Public Service Staff Relations Act.
I am further of opinion that a matter before
the Public Service Arbitration Tribunal is a
"Civil ... proceeding" within the meaning of
those words in section 107 of the Public Service
Staff Relations Act. I recognize that the word
"proceeding", in this context, had its origin in
connection with matters in the ordinary courts
of the land but, in current use, it refers, in my
understanding of the use of language, to matters
before any person or persons having authority
to make decisions or give advice after hearing
evidence or otherwise giving persons concerned
an opportunity of putting forward their point of
view.' Furthermore, it is, in my view, inconceiv
able that Parliament would have provided the
protection of section 107 against being com
pelled to give evidence in the traditional tri
bunals but have withheld it from persons who
might otherwise be compelled to give evidence
before one of the numerous other authorities
who are armed with powers to compel the
giving of evidence.
I am, therefore, of the view that the Director
or any other member of the Pay Research
Bureau is entitled, on the facts agreed upon by
the parties, to the protection of section 107.
Having reached that conclusion, the question
remains as to what disposition should be made
of the "Reference" made by the Public Service
Staff Relations Board to this Court.
After consideration, I have come to the con
clusion, for the reasons hereafter set out, that
that "Reference" is not such a reference as is
contemplated by section 28(4) of the Federal
Court Act and that this Court has not, therefore,
authority to determine the question set out
therein.
Section 28(4) may be repeated here for con
venience. It reads as follows:
(4) A federal board, commission or other tribunal to
which subsection (1) applies may at any stage of its proceed
ings refer any question or issue of law, of jurisdiction or of
practice and procedure to the Court of Appeal for hearing
and determination.
It is important to note that this provision is not
authority to give an advisory opinion such as is
contained in section 55 of the Supreme Court
Act, 4 under which a question is referred to the
Supreme Court of Canada for "hearing and con
sideration" and the Court is required to express
"its opinion" upon a question so referred. Sec
tion 28(4) contemplates a "question or issue of
law" arising at some "stage" of a tribunal's
"proceedings" being referred to this Court by
the tribunal for "hearing and determination"
(the underlining is mine). In my view, such a
reference can only be made by an order of the
tribunal in question that puts before this Court
such findings of fact, or other material, as that
tribunal would base itself on if it were determin
ing the question or issue of law itself. 5 Further
more, in my view, section 28(4) in so far as
questions of law are concerned, contemplates
only the determination of a question of law that
must be determined for the purpose of dealing
with the matter that is before the tribunal
making the reference and does not contemplate
determination of a question of law expressed in
academic terms . 6
Applying those views to this matter, I am of
the view that the "Reference" here does not fall
within section 28(4) because it does not put
before this Court any findings of fact or other
material on which a tribunal would decide a
question of law itself. Furthermore, it is defec
tive because it asks a question about the
application of section 107 to any document
"obtained or prepared by the ... Bureau in the
course of carrying out its duties" and not about
its application to specific documents.'
Finally, at least in form, the "Reference" here
does not fall within section 28(4) because it asks
the Court to answer a question—that is, it asks
for advice—and does not set up a question of
law on an appropriate foundation of findings of
fact or other material for "determination".
I am of opinion that this Court's judgment
should be that, having concluded that the "Ref-
erence" is not such a reference as is contem
plated by section 28(4), the Court does not
answer the question contained therein.
CAMERON and ST. -GERMAIN D.JJ. concurred
in the disposition of the matter proposed by the
Chief Justice and with his Reasons therefor, but
expressed no opinion as to whether section 107
applies to members of the Pay Research
Bureau.
' 18. The Board shall administer this Act and shall exer
cise such powers and perform such duties as are conferred
or imposed upon it by, or as may be incidental to the
attainment of the objects of, this Act including, without
restricting the generality of the foregoing, the making of
orders requiring compliance with this Act, with any regula
tion made hereunder or with any decision made in respect of
a matter coming before it.
2 (3) Such other officers and employees as the Board
deems necessary for the performance of its duties shall be
appointed under the Public Service Employment Act.
3 Compare section 28(4) of the Federal Court Act and
section 68 of the Public Service Staff Relations Act.
4 Compare In re Reference by the Governor in Council
(1910) 43 S.C.R. 536, and Attorney-General for Ontario v.
Attorney General for Canada [1912] A.C. 571.
5 A question or issue of fact is "determined" by making a
finding of fact, where there has been a dispute with regard
thereto, on the evidence. A question or issue of law is
"determined" by making a finding as to the legal conse
quences that flow from facts as found or agreed on, where
there has been a dispute with regard thereto. An order of
reference under section 28(4) should, in my view, set out the
facts established before the tribunal, indicate the dispute
that has arisen before the tribunal as to the legal conse
quences flowing from those facts, and refer that question or
issue of law to this Court for hearing and determination.
6 In my view, the power is not different in kind from the
power of a Court to decide a question of law before trial.
Compare Libbey-Owens-Ford Glass Company v. Ford
Motor Company (1968) 38 Fox P.R. 76, and the cases
referred to therein.
7 There may well be documents so obtained or prepared
that do not contain "information" to which section 107
applies. Indeed, I venture to suggest that the difficulty arises
here because the question that the Board itself is being
asked to determine under section 23 of its Act has been
raised prematurely. I say this because, as I see it, there is
nothing in section 107 to prevent a member of the Pay
Research Bureau being a witness. It merely acts as a shield
against a special class of evidence being given; and, as I see
it, the appropriate time to take objection to particular evi
dence is when such evidence is tendered so that the tribunal
concerned can know what that evidence is and can consider
whether such a provision as section 107 or some other rule
of law operates to require that it be excluded.
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.