Executive Summary: Key Legal and Evidentiary Issues

• Mootness was a threshold question because the PSAC strike had ended before the hearing, requiring the Court to decide whether to exercise its discretion to hear the case anyway.
• Central to the merits was whether the Council counselled ship repair employees to engage in an illegal strike under subsection 194(1) of the FPSLRA, not whether an illegal strike actually occurred.
• The Board's treatment of "counselling" as equivalent to "directing" conflicted with its own case law, which defines counselling far more broadly to include advising, recommending, encouraging, and inciting.
• Evidence the Board was said to have overlooked included two Council bulletins and findings that representatives at the Rocky Point location recommended employees not cross the picket lines.
• Whether the Board assessed the representatives' conduct objectively or only through their subjective intent went to the reasonableness of its analysis under Vavilov.
• Relevance of the Council being made up of several trade unions arose in connection with whether "scab" comments amounted to incitement.

Facts of the case

In April 2024, federal public sector employees represented by the Public Service Alliance of Canada (PSAC) began a legal strike — one of the largest in Canadian history — and set up picket lines at federal government sites across the country, including Department of National Defence (DND) ship repair facilities in British Columbia. Several hundred employees at those facilities were not in a legal strike position, among them ship repair employees represented by the Federal Government Dockyards, Trades and Labour Council (Esquimalt), their certified bargaining agent. The Council had given up its right to strike in that round of bargaining, choosing to settle its collective agreement through arbitration under section 103 of the FPSLRA, so it was not in a legal strike position. DND expected the ship repair employees to work as usual and required them to make reasonable efforts to try to cross the PSAC picket lines; in the end, none of them did. In the days before the strike, the Council issued two bulletins to the ship repair employees, and Council representatives spoke to them about crossing the lines. The employer regarded this conduct as a breach of subsection 194(1) and applied to the Federal Public Sector Labour Relations and Employment Board for a declaration. The Board dismissed the application, finding no violation, and the Attorney General of Canada then applied to the Federal Court of Appeal to set that decision aside.

Statutory provisions and language at issue

Subsection 194(1) prohibits an employee organization from declaring or authorizing a strike and prohibits its officers or representatives from counselling or procuring such a strike where — under paragraph 194(1)(e) — the dispute-resolution process for the bargaining unit is arbitration. Section 193 deems the acts and omissions of a Council's officers and representatives to be those of the Council itself. The Council relied on older decisions decided under section 102 of the former Public Service Staff Relations Act, a differently worded provision that, on the Council's reading, required a strike to actually occur before representatives could be found in breach. The central evidentiary language was the Council's second bulletin, issued the day before the strike, stating that the Council and its affiliate unions do not endorse or support crossing any legal picket line, together with findings about statements by a Council representative, Mr. Rogers — including that a union member would not cross another union's legal picket line, and that someone who did could be viewed as a "scab."

The court's reasoning and analysis

The Court dealt first with mootness. The applicant conceded that, under the Borowski framework, the application was moot once the strike had ended; the Court agreed it was moot but decided to hear it regardless. The Council had earlier sought to adjourn a separate grievance — concerning unpaid rather than paid leave for workdays missed during the strike — on the basis that this judicial review "may be relevant" to it, and the Court found the Council estopped from now taking the opposite position. That potential effect on the grievance, along with the concern that decisions reached under the Board's "labour relations purpose" approach to mootness would otherwise be immune from judicial review, weighed in favour of deciding the case. On the merits, the Court largely agreed with the Attorney General. The issue before the Board was whether the Council counselled the ship repair employees to engage in an illegal strike, not whether such a strike happened; under the Board's own case law, a representative can contravene subsection 194(1) by counselling an illegal strike even where none occurs. Applying Vavilov, the Court found the Board's reasons unreasonable against two constraints — the nature of the case before it and its prior case law. The Board devoted almost all of its analysis to whether the employees' refusal to cross amounted to an illegal strike and gave little attention to whether representatives counselled them to refrain, ignored evidence that representatives at the Rocky Point location recommended employees not cross, treated "counselling" as the same as "directing," and looked only at the representatives' subjective intent, departing without explanation from case law holding that counselling covers a broader range of conduct assessed at least partly on an objective basis. On the council-versus-union point, the Court held that the Council's composition was irrelevant to whether subsection 194(1) applied, given section 193, but that the fact its constituent unions represent skilled trades elsewhere was something the Board could properly consider in weighing whether the "scab" comments amounted to incitement.

Ruling and outcome

The Court found the Board's decision unreasonable and set it aside, remitting the employer's complaint for reconsideration by a different Board member, since the original member no longer sits on the Board. The application by the Attorney General of Canada was granted, and — on terms the parties had agreed, with costs following the event — the Attorney General was awarded costs fixed in the all-inclusive amount of $3,000.00.