Dear Sisters, Brothers and Friends,
As many of you know, in the context of the Canada Emergency Response Benefit (CERB) grievances, the Federal Public Sector Labour Relations and Employment Board (FPSLREB) issued an interim decision on the Charter motion (whether the Canada Revenue Agency (CRA) violated s. 8 of the Canadian Charter of Rights and Freedoms (enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.); “the Charter”), finding that a privacy breach had occurred. However, it declined to exclude the evidence, emphasizing that Charter remedies are discretionary. The UTE is attaching the decision for your information.
Given the strength of the Union’s legal position, the PSAC filed an application for judicial review with the Federal Court of Appeal. Normally, interim decisions are not reviewable except in exceptional circumstances; only final orders can be reviewed, and the Board has not issued final orders in any of the three Charter test cases because full hearings have not yet taken place.
Despite this, PSAC proceeded because it believed the situation met the threshold for exceptional circumstances, particularly considering the broad implications for more than 150 CERB termination cases currently awaiting adjudication.
The Employer brought a motion to strike the judicial review application on the basis of prematurity, arguing that the Board’s decision was not a final order. The Federal Court of Appeal agreed and struck the application.
This outcome does not prevent PSAC from seeking judicial review once a final order is issued, but it does mean that at least some CERB cases will need to proceed through full hearings before judicial review can occur. The Board has now asked PSAC to identify five priority test cases to move forward. Once final orders are issued in one or more of these cases, PSAC will be able to proceed with judicial review. PSAC, in consultation with UTE are currently in the process of selecting those files.
In the interim, the PSAC and the UTE will maintain the CERB grievances in abeyance at their present point in the process.
Please do not hesitate to contact your Local if you have any questions or concerns.
In solidarity,
Manon Desormeaux
Senior Labour Relations Officer