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LABOUR BOARDS - Process and procedure - Jurisdiction - Re-opening of proceedings

Monday, September 25, 2017 @ 8:36 AM  

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Application by the Crown for judicial review of a ruling by the Public Service Labour Relations and Employment Board. A Canada Revenue Agency (CRA) worker grieved a 30-day suspension. The CRA called several non-managerial employees to testify as part of its case. The employees were told by counsel that their full names would not appear in the decision. There was a dispute as to whether the parties consented to use of initials to describe all witnesses, or whether that agreement was limited to one witness. In any event, the Board adjudicator used the full names of all of the witnesses. The grievance was dismissed. Counsel for the CRA wrote the Board and requested redaction of the names of the non-management employees. The Board refused on the basis it was functus officio and thus lacked jurisdiction to address the issue. The Crown sought judicial review of the Board's refusal. The Board agreed not to publish the decision online pending the determination of the Crown's application.

HELD: Application allowed. The Board possessed the jurisdiction to make the requested redactions following the release of its award. It was more likely than not that counsel requested redaction of the names of all employee witnesses. If there was a misunderstanding as to the nature of the request, the Board's adjudicator was entitled to amend the decision on the basis of correcting a clerical error. Even if there was no misunderstanding, the adjudicator had clear statutory jurisdiction to amend an issued decision pursuant to s. 43 of the Public Service Labour Relations Act. The Board's determination it lacked authority to make the requested redactions based on the doctrine of functus officio was unreasonable and set aside with direction to reconsider the merits of the redaction request.

Canada (Attorney General) v. Philips, [2017] F.C.J. No. 870, Federal Court of Appeal, J.D.D. Pelletier, R. Boivin and M.J.L. Gleason JJ.A., September 13, 2017. Digest No. TLD-Sept252017001