Court File and Parties

COURT FILE NO.: CV-11-436848 DATE: 20170301 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CANADIAN UNION OF POSTAL WORKERS/SYNDICAT DES TRAVAILLEURS ET TRAVAILLEUSES DES POSTES, DENIS LEMELIN, RON HANNON and JEREMY LECLAIR Applicants – and – HER MAJESTY IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA Respondent -and – CANADA POST CORPORATION Intervener

Counsel: Paul J.J. Cavalluzzo and Adrienne Telford, for the Applicants Kathryn Hucal and Jon Bricker, for the Respondent John D.R. Craig and Christopher Pigott, for the Intervener, Canada Post Corporation

HEARD: In Writing

Reasons for Decision

FIRESTONE J.

[1] In my Reasons for Judgment dated April 28, 2016, I found that the Restoring Mail Delivery for Canadians Act, S.C. 2011, c. 17 (the “Act” or Bill C-6) unjustifiably violated ss. 2(d) and (b) of the Canadian Charter of Rights and Freedoms and struck it down in its entirety and with retroactive effect: Canadian Union of Postal Workers v. Her Majesty in Right of Canada, 2016 ONSC 418, 130 O.R. (3d) 175 [CUPW v. Canada]. On October 7, 2015, during the hearing of this Application, the parties executed a consent agreement dealing with the issue of remedy (“the Consent Agreement”). Pursuant to the Consent Agreement, this Court retained jurisdiction to address “any remaining remedial issues” following the release of my decision on the merits.

[2] In June 2016, the Applicants wrote to this Court seeking to address an “outstanding remedial issue.” The alleged issue relates to s. 6 of the Act, which extended the term of the expired Urban Postal Operations Collective Agreement from its expiry on January 31, 2011 to the day on which a new collective agreement came into effect, which was ultimately December 21, 2012 (the “Extended Agreement”). In light of this Court’s complete retroactive declaration of invalidity of the Act, and the position Canada Post has taken in a separate proceeding that the Extended Agreement is unenforceable as a result, the Applicants argue that the enforceability of the Extended Agreement is a remaining remedial issue that this Court can and should address as part of this Application.

[3] For the reasons that follow, I find that the Applicants have not raised a “remaining remedial issue” within the meaning of the Consent Agreement and that it is not appropriate, as part of this Application, to issue further remedial relief other than that requested at the hearing of this Application.

[4] In brief, the issue the Applicants have identified is the effect of this Court’s complete retroactive declaration of invalidity rather than a remaining remedial issue under this Application and the terms of the Consent Agreement. The Applicants sought and obtained a complete retroactive declaration of invalidity of the Act. It is open to the Applicants to argue in other proceedings that the Extended Agreement should remain in effect notwithstanding this Court’s declaration.

Procedural Background

[5] In October 2011, the Canadian Union of Postal Workers (“CUPW”) brought this proceeding by application under Rule 14.05(3)(g.1) of the Rules of Civil Procedure, R.R.O.1990, Reg. 194 (the "Rules"). The Application challenged the constitutionality of the Act on the grounds that it unjustifiably infringed the ss. 2(d) and 2(b) Charter guarantees of freedom of association and expression. The Application was heard during the week of October 5, 2015.

[6] In its Notice of Application, CUPW sought, at paras. (d) and (e), “[a] declaration that the [Act] is unconstitutional and of no force and effect” and “[s]uch further and other relief under ss. 24 and 52 of the Charter as counsel may request and this Honourable Court permit”.

[7] In its factum in support of the Application, CUPW sought a declaration that the Act unjustifiably violated ss. 2(d) and 2(b) of the Charter and was of no force and effect under s. 52(1) of the Constitution Act, 1982. CUPW also sought relief under s. 24(1) of the Charter, including: an order directing the parties to meet to attempt to reach a resolution, subject to a further s. 24(1) order if no resolution was achieved; an order for costs; and “such further and other relief that counsel may advise and this Honourable Court may grant.”

[8] During the course of the hearing of the Application, the parties entered into a Consent Agreement dated October 7, 2015 detailing the remedies being sought on the Application and setting out the procedure to be followed concerning any remaining remedial issues following the release of my decision on the merits. That agreement states as follows:

WHEREAS the Applicants have agreed that they will not seek, as a remedy in these proceedings, the invalidation of all or part of the collective agreement between CUPW and the Intervener that expired on January 31, 2015;

AND WHEREAS the Applicants have advised they are seeking a retroactive remedy under s. 52 of the Canadian Charter of Rights and Freedoms and monetary damages under s. 24(1) of the Canadian Charter of Rights and Freedoms, the parties and the Intervener agree that they will each address the application of s. 52 and availability of s. 24 at some point during the hearing of the application of this matter October 5, 2015 – October 9, 2015. If after the decision on the merits there are any remaining remedial issues, they will be addressed through written or oral submissions and evidence, if requested by a party.

[9] There is no dispute that, on this Application, CUPW sought as a remedy the complete retroactive declaration of invalidity of the Act. CUPW did not request that s. 6 of the Act remain in force.

[10] On the issue of remedy, this Court declined to award s. 24(1) Charter damages because the need for “compensation, vindication, and deterrence in the face of conduct by state actors” did not arise on the facts of this case: CUPW v. Canada, at para. 244. This Court also stated, at para. 243, that the facts did not bring this case within those “unusual cases” where combined remedies under ss. 24(1) and 52(1) are appropriate.

[11] As a remedy, this Court struck down the Act under s. 52(1) of the Charter. Some relevant parts of the remedy analysis include the following, at paras. 245, 247, and 250:

[245] […] In the circumstances of this application, a complete declaration of invalidity is appropriate. The Act is narrow and targeted in scope. Reading down or severing those of its provisions which offend the Charter would strip the Act bear and render it completely ineffectual in any event. […]

[247] The circumstances of this case are not appropriate to disturb the normal assumption that constitutional remedies apply retroactively. To do otherwise would not work fairness to the Applicants in this case or provide them with a meaningful remedy. […]

[250] The Act is declared to have been unconstitutional and of no force or effect. Such declaration of invalidity is to be applied retroactively.

[12] None of the parties as part of this Application addressed the enforceability of the Extended Agreement in their facta, nor did they argue in favour of its nullification or otherwise address the effect of a declaration of invalidity on the Extended Agreement.

[13] The Reasons for Judgment included references to the Consent Agreement. In particular, the reasons provided, at paras. 13, 99, and 100, that:

[13] During the hearing of the application, the parties came to an agreement on the procedure for addressing the issue of remedy. The consent agreement was reduced to writing and filed with the court on October 7, 2015. In it, the Applicants advised that they are not seeking the invalidation of all or part of the collective agreement between CUPW and Canada Post that expired on January 31, 2015. They are, however, seeking declaratory relief and monetary damages under s. 52 of The Constitution Act, 1982 and s. 24(1) of the Charter, respectively. The parties agreed to address the application and availability of those remedies at some point during the hearing of the application. If, after a finding on the merits of the application, any remedial issues are outstanding, the parties consented to address them through written and oral submissions and evidence, if requested by a party.

[99] On the third day of the hearing of this matter, the parties filed a consent agreement with the court on the issue of remedy. Remedial issues remaining after a decision on the merits would be addressed through written and oral submissions, the parties agreed, if any of them requested this.

[100] The issues on remedy to be determined at this stage are the application of s. 52 of the Constitution Act, 1982 and the availability of s. 24(1) Charter damages.

[14] It is this Court’s retention of jurisdiction based on the terms of the Consent Agreement entered into between the parties that has prompted the issue for determination presently before me.

Section 6 of the Act and the Extended Agreement

[15] In October 2010, CUPW gave notice to bargain to Canada Post to negotiate a replacement for the 2007-2011 Urban Postal Operations Collective Agreement (the “2007-2011 Agreement”), which had a term of May 20, 2007 to January 31, 2011. The parties did not reach an agreement by the end of the term, but the 2007-2011 Agreement continued for several months pursuant to s. 50(b) of the Canada Labour Code, R.S.C. 1985, c. L-2. On May 30, 2011, after months of unsuccessful negotiations, CUPW gave 72 hours’ notice to Canada Post that it would begin rotating strikes. On May 30, 2011, Canada Post legally unilaterally ended the 2007-2011 Agreement and imposed, with some exceptions, the minimum employment standards required under the Canada Labour Code, ss. 50 and 89 and Part III.

[16] Between June 3 and June 13, 2011, CUPW members engaged in rotating strikes across the country. On June 14, 2011, Canada Post imposed a nationwide lockout. On June 15, 2011, the government gave formal notice that it would introduce back-to-work legislation. On June 26, 2011, the Act received royal assent. Section 6 of the Act extended the expired collective agreement until a new one came into effect.

[17] Section 6 of the Act provided:

(1) The term of the collective agreement is extended to include the period beginning on February 1, 2011 and ending on the day on which a new collective agreement between the employer and the union comes into effect.

(2) Despite anything in the collective agreement or in Part I of the Canada Labour Code, the collective agreement, as extended by subsection (1), is effective and binding on the parties to it for the period for which it is extended. However, that Part applies in respect of the collective agreement, as extended, as if that period were the term of the collective agreement.

[18] In October 2012, while the Act was still in effect, Canada Post and CUPW agreed to a new collective agreement for 2012-2015 (the “2012-2015 Agreement”).

The Quebec Proceedings

[19] The Act purported to retroactively extend the 2007-2011 Agreement through the month in which Canada Post ended the 2007-2011 Agreement, CUPW engaged in strike action, and Canada Post locked out postal workers.

[20] On July 21, 2011, CUPW filed a national grievance in Québec alleging that Canada Post failed to comply with certain provisions of the Extended Agreement during the strike and lockout period of May 30 to June 27, 2011. Canada Post argued that the grievance should be dismissed on the grounds that a collective agreement cannot be in force at the same time as the existence of strike and lockout rights. The first stage of the arbitration considered the enforceability of the Extended Agreement during the strike and lockout period.

[21] In a partial arbitral award dated March 19, 2013, Arbitrator André Bergeron ruled that the Extended Agreement was enforceable during the strike and lockout period. However, he stated that arbitrators hearing grievances arising during that period should:

…ensure that the enforcement of the provisions cited to support a grievance does not result in any absurd, inequitable or unreasonable situation or make illegal any action taken legally at the time during which the collective agreement was no longer in force.

Société canadienne des postes c. Syndicat des travailleurs et travailleuses des postes, 2013 L.N.S.A.R.T.Q 183 (unofficial English translation provided by CUPW), at para. 70.

[22] On October 30, 2014, Arbitrator Bergeron issued an arbitral award in which he ruled on how parties ought to implement certain provisions of the collective agreement during the strike and lockout period: Société canadienne des postes c. Syndicat des travailleurs et travailleuses des postes (October 30, 2014) (unreported).

[23] Canada Post sought judicial review of both arbitral decisions. In October 2015, the Québec Superior Court heard the judicial review application. On April 28, 2016, Canada Post brought a motion to amend and reopen its judicial review application to argue the award should be quashed on the basis that this Court struck down the entire Act, including s. 6. On July 27, 2016, the Québec court allowed Canada Post’s motion to re-open and amend its application. On August 12, 2016, the Québec court stayed the judicial review proceedings pending the outcome of the present proceedings before this Court.

The Request for Further Remedial Relief

[24] On June 28, 2016, CUPW wrote to this Court requesting that it address “an outstanding remedial issue.” In response to Canada Post’s position in the Québec judicial review proceeding that the Extended Agreement was retroactively invalidated by this Court’s April 2016 judgment, CUPW seeks declaratory relief to the effect that the Extended Agreement continued in force notwithstanding the complete retroactive declaration of invalidity of the Act. Canada Post argues that CUPW is making a “new request for a new remedy” by seeking to prevent it from arguing in Québec that the Extended Agreement is unenforceable.

[25] On August 18, 2016, the parties appeared before me to make submissions regarding the procedure to be followed to address the issues raised by counsel for the Applicant following the release of my decision. After hearing submissions, I provided the parties with my endorsement of August 18, 2016. In that endorsement, I directed the parties to deliver facta and a brief of authorities addressing the following questions in order to determine the issues raised:

(a) Is the determination of the effect of the declaration of invalidity on section 6 of the Act, and the collective agreement extended by it, a remaining remedial issue under the consent agreement executed October 7, 2015? (b) If it is a remaining remedial issue what order, if any, should be made? (c) If it is not a remaining remedial issue, do I have jurisdiction as part of this application to determine the issue or order any further remedial relief? (d) If it is not a remaining remedial issue, it is the determination the applicant seeks properly the subject of a further proceeding before this Court or the Québec Superior Court?

[26] In accordance with my endorsement, the parties filed facta and briefs of authorities. None of the parties requested an oral hearing or suggested they have evidence to put before the Court in addressing the questions posed.

Position of the Parties

(a) Is the effect of the judgment on s. 6 of the Act and the Extended Agreement a remaining remedial issue under the Consent Agreement?

[27] CUPW quotes from the original decision and highlights that the Court expressly addressed two remedial issues that were before it “at this stage […] the application of s. 52 of the Constitution Act, 1982 and the availability of s. 24(1) Charter damages”: CUPW v. Canada, at para. 100. CUPW argues that the effect of the declaration of invalidity on the enforceability of the Extended Agreement is “precisely the type of remedial issue over which this Court retained jurisdiction”. It is an issue that is outstanding, remedial, and distinct from the two issues addressed by the court, i.e. it does not relate to the application of s. 52(1) of the Constitution Act, 1982 or to the availability of s. 24(1) Charter damages.

[28] CUPW submits, at para. 29 of its factum, that the basis for the Court’s jurisdiction to consider this issue as a remaining remedial issue is found in the Consent Agreement and the reasons for decision, at paras. 99-100. The enforceability of the Extended Agreement is a new issue, not a question of interpreting the judgment because:

the Applicants seek to address for the first time the issue of whether an “appropriate and just a remedy” under s. 24(1) of the Charter is a declaration that the collective agreement extended by s. 6 of the Act, like the collective agreement that expired on January 31, 2015, is neither invalidated nor affected by the declaration of invalidity of Bill C-6, and therefore continues to be enforceable.

[29] Regarding the proper interpretation to be given to the Consent Agreement, CUPW highlights that the hearing of this case (when the Consent Agreement was entered into) took place during the week of October 5, 2015, almost three years after the Extended Agreement expired. It states that it agreed to refrain from seeking a remedy that would affect the 2012-2015 Agreement “to avoid labour relations chaos” and that this benefited both CUPW and Canada Post. The parties did not address the Extended Agreement in the Consent Agreement and the Extended Agreement had “long since expired.” If Canada Post had indicated an intention to seek to invalidate the Extended Agreement, CUPW says it would have opposed such a position.

[30] Canada Post submits that the effect of the declaration of invalidity on s. 6 of the Act and the Extended Agreement is not a remaining remedial issue under the Consent Agreement.

[31] Firstly, Canada Post submits that the Consent Agreement imposes clear limits on remedies available to CUPW and does not permit the relief now being sought. Canada Post submits that “the Consent Agreement was only necessary because CUPW had repeatedly changed course with respect to the relief it was seeking in this application.”

[32] The first purpose of the agreement was to “clarify and confirm” which remedies were available if the Application was successful. The second purpose was to establish a bifurcated hearing process in the event that it was necessary to address CUPW’s claim for s. 24(1) Charter damages, thereby avoiding an adjournment. Canada Post argues that, under CUPW’s interpretation, there would be “no limits” on CUPW’s ability to continually request new remedies, which would be procedurally unfair.

[33] The parameters of this Court’s retention of jurisdiction are set out in the paragraph of the Consent Agreement which states that CUPW will seek a retroactive remedy under s. 52 of the Constitution Act, 1982 and monetary damages under s. 24(1) of the Charter. The parties used the limiting language of “remaining remedial issues” and not the more expansive language of “new remedial issues” or “different remedial issues.”

[34] Secondly, Canada Post submits that the case law does not permit an applicant to request new remedies in this fashion. The case of Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 [Doucet-Boudreau], referred to by CUPW, involved a court retaining jurisdiction to hear whether a party was complying with a “best efforts” requirement of a judgment, not to issue new remedies. While courts may often remain seized of a matter, CUPW it is simply seeking to revise the Court’s declaration of invalidity by “carving out” s. 6 from the declaration. It was clear that the sole purpose of s. 6 of the Act was to extend the term of the 2007-2011 Agreement and that the declaration of invalidity applied to the Act as a whole. The sole effect of the requested remedy, it submits, is to extend the 2007-2011 Agreement again.

[35] Canada argues that the Court’s order is final and the enforceability of the Extended Agreement is not a remedial issue. The Court, it submits, specifically rejected reading down or severing certain provisions of the Act. Canada argued for a prospective remedy but the court rejected this position, leading to s. 6 being of no force and effect ab initio.

[36] Canada submits that CUPW cannot now ask the Court, under the guise of an s. 24 Charter remedy, to amend its declaration of invalidity. Further, CUPW sought both an s. 52(1) and s. 24(1) remedy in the constitutional challenge, but the Court rejected the latter, noting that this was not an appropriate case to combine such remedies. Canada submits that s. 24(1) of the Charter should be used only as a remedy for unconstitutional government acts, not unconstitutional laws. Canada submits that the remedy granted was “meaningful in itself” and can be referred to in future cases.

[37] In reply, CUPW submits that the Consent Agreement was procedural in nature and did not impose a “legal straitjacket” on its ability to seek additional remedies under the Application. It notes that both the parties and the Court could have used language targeted solely at the quantification of s. 24(1) Charter damages if that was their intent under the Consent Agreement.

(b) If the enforceability of the Extended Agreement is a remedial issue, what order, if any, should be made?

[38] CUPW seeks a declaration under s. 24(1) of the Charter “that the expired collective agreement is enforceable notwithstanding the retroactive invalidity of Bill C-6.” Section 24(1) of the Charter provides:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[39] CUPW relies on the Supreme Court’s decision in Doucet-Boudreau, particularly paras. 55-59, for the proper interpretive approach to be applied to s. 24(1) remedies. Remedies for Charter claims generally should be “responsive” and “effective.” Section. 24(1) confers a “broad remedial mandate” on courts. In particular a remedy is “appropriate and just” if it “meaningfully vindicates the rights and freedoms of claimants”; “employ[s] means that are legitimate within the framework of our constitutional democracy”; “is a judicial one which vindicates the right while invoking the function and powers of a court”; and “is also fair to the party against whom the order is made.”

[40] CUPW offers five arguments why the requested remedy is an appropriate and just remedy in the circumstances. First, upholding the Extended Agreement would “meaningfully vindicate” the Applicants’ rights because it would prevent “legal and labour relations chaos”. Without such a declaration, there would be no legally enforceable instrument governing the relationship between the parties during the term of the Extended Agreement, thereby creating a legal vacuum. This is precisely the situation it sought to avoid by agreeing, in the Consent Agreement, to refrain from challenging the 2012-2015 Agreement.

[41] Second, CUPW submits that this would be an appropriate remedy in that it respects the separation of functions among the legislature, executive, and judiciary. It would not intrude on legislation and policymaking, or impose any course of action on the executive.

[42] Third, CUPW submits that it is appropriate to combine s. 24(1) remedial relief and a s. 52(1) declaration of invalidity when it is “necessary to provide the claimant[s] with an effective remedy”: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 63. The higher threshold for awarding damages under s. 24(1) does not apply to awarding declaratory relief under s.24(1): Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at paras. 21 and 33-34. CUPW submits that courts have used s. 24(1) orders to supplement s. 52(1) declarations: see Carter v. Canada (Attorney General), 2015 SCC 5, 2015 1 S.C.R. 331; R. v. Swain, [1991] 1 S.C.R. 933, at pp. 1021-1022; P.S. v. Ontario, 2014 ONCA 900, 123 O.R. (3d) 651, at paras. 206-209; Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at paras. 118-121; Re Manitoba Language Rights, [1985] 1 SCR 721, at paras. 107-116.

[43] Fourth, CUPW argues that such a remedy would not be unfair to Canada or Canada Post given that, in the Application, Canada argued for a “purely prospective remedy” in part because Canada Post would have relied on the legislation in making business decisions. The requested declaration would provide certainty and stability for the parties in the same way that a prospective remedy would have. The requested declaration would permit legal proceedings commenced in reliance on the Extended Agreement to be resolved in accordance with its terms.

[44] Fifth, CUPW highlights that in Doucet-Boudreau, at para. 59, the Supreme Court stated that the application of s. 24(1) may require “novel” ideas.

[45] Canada Post submits that, even if there was a remaining remedial issue, this court should still not grant the relief requested by CUPW.

[46] First, Canada Post submits that the retroactive declaration of invalidity was clear and CUPW should not be surprised that it had consequences for s. 6 of the Act. The issues raised in this application have already been argued before this Court. Canada Post argued that the Act’s reinstatement of the 2007-2011 Agreement was a benefit to CUPW and a detriment to Canada Post but CUPW rejected this argument.

[47] CUPW forcefully sought the complete retroactive declaration of invalidity which was granted. CUPW is wrong to conflate the Extended Agreement with the 2012-2015 Agreement because the former was executed solely by operation of the Act and the latter was “freely negotiated.” Arbitrator Bergeron’s award was premised on the 2007-2011 Agreement being extended by s. 6 of the Act which made clear the possible impact of a declaration of invalidity.

[48] Second, Canada Post argues that CUPW “cannot have it both ways” by now attempting to retain the benefits of the Act that it denied existed during the hearing on the merits when it described the effects as devastating and punitive. It argues that CUPW is taking the position that it should have the benefits of the collective agreement during the strike and lockout period and also the right to strike at the same time. Strikes and lockouts are strictly prohibited while a collective agreement is in force pursuant to ss. 50(1) and 88.1 of the Canada Labour Code.

[49] Third, Canada Post submits that the case law regarding s. 24(1) of the Charter does not support CUPW’s requested remedy. First, there is no precedent. It argues that Constitutional exemptions are typically used to provide claimants with relief “from” unconstitutional legislation, typically with a suspended declaration of invalidity. An example of this being the Supreme Court’s decision in Carter, in which the Court allowed for constitutional exemptions to be granted to applicants during the suspended declaration of invalidity. Canada Post argues that CUPW seeks to reinstate unconstitutional legislation permanently.

[50] The requested remedy is at odds with s. 24(1) principles. The Supreme Court has held that “constitutional exemptions and similar remedies under s. 24(1) should rarely be granted as they can create uncertainty, undermine the rule of law, and usurp Parliament’s role”: Canada Post’s factum, at para. 69, citing Carter, at para. 125; Ferguson, at paras. 49-73.

[51] Canada Post submits that CUPW is asking this court to keep an unconstitutional provision in force thereby creating confusion about what is constitutionally permissible. Additionally, Canada Post again stresses that the Supreme Court’s decision in Doucet-Boudreau was about “best efforts” compliance and not granting new remedies. They submit that s. 24(1) is for use solely as a remedy for government acts.

[52] Fourth, Canada Post submits there would be no legal or labour relations chaos without the requested declaration. In particular, Canada Post argues that there would not be legal and labour relations chaos during the strike and lockout period in the absence of a collective agreement, as CUPW submits. It highlights that CUPW filed an application with the Canada Industrial Relations Board regarding Canada Post’s conduct during that period and the Board disposed of the application. According to Canada Post, there is a well-established body of labour law administered by labour boards and arbitrators that specifically addresses unions’ and employers’ rights and obligations during a period when the collective agreement is not in force.

[53] Fifth, the requested declaration would be unfair to Canada Post. If granted, it would mean that the Extended Agreement and the right to strike will have coexisted. Canada Post says it would have no certainty at all as to its legal rights and obligations during the period in question. Canada Post should be entitled to rely on the plain meaning of the declaration. Sometimes such declarations render other proceedings moot.

[54] Canada makes no submissions on this issue.

(c) If it is not a remaining remedial issue, do I have jurisdiction as part of this Application to determine the issue or order any further remedial relief?

[55] CUPW submits that, even if this issue is not a remaining remedial issue, the Court nevertheless has inherent jurisdiction to issue a remedy under s. 24(1) of the Charter because it is not yet functus. CUPW relies on the decision in Griffin v. Dell Canada Inc. (2009), 64 B.L.R. (4th) 186, at para. 11, (Ont. S.C.) for the proposition that “[t]he court has a broad discretion to reconsider a decision before judgment is formally entered in the court record and an order drawn up, passed and entered”. It also cites other cases to the same effect. CUPW submits that the court has not entered its formal judgment into the court record and the parties have not taken out a formal order. As a result, the doctrine of functus “has no application where the trial judge does not purport to alter a final judgment”: Doucet-Boudreau, at para. 76.

[56] In the alternative, CUPW argues that even if the court is functus at common law, this cannot pre-empt the Court’s remedial discretion under s. 24(1) of the Charter. It would be appropriately judicial, it submits, to grant the declaration because no formal order has been entered, the judgment is not being appealed, the Applicants are not seeking to alter the reasons and Rule 59.06 of the Rules allows courts to grant relief other than that originally awarded.

[57] Canada Post submits there is no other source of jurisdiction to grant the requested declaration. The requested declaration would be an unprecedented remedy that would give permanent legal effect to s. 6 of the invalid Act. The effect would be to substantially alter the court’s initial declaration and offend the doctrine of functus officio.

[58] Canada submits that the doctrine of functus officio ensures finality to proceedings. If a court could revisit or reconsider a final order because it changed its mind, there will be no finality to proceedings. The technical fact that a judgment may not have been signed and entered does not change this: Beard Winter LLP v. Shekhdar, 2015 ONSC 4517, at paras. 29-34.

[59] This court did not retain jurisdiction to alter a final judgment. Canada submits that CUPW could have claimed relief that excluded s. 6 of the Act from the declaration of invalidity but chose not to. Canada concludes with the following pronouncement from Doucet-Boudreau, at para 115: “If a court is permitted to continually revisit or reconsider final orders simply because it has changed its mind or wishes to continue exercising jurisdiction over a matter, there would never be finality to a proceeding”.

(d) If it is not a remaining remedial issue, is the determination the Applicant seeks properly the subject of a further proceeding before this Court or the Québec Superior Court?

[60] CUPW submits that this remedial issue raised in this application relates only to the remedy for the violation of its constitutional rights and is therefore properly before this Court. The Québec court, it submits, appropriately deferred to this Court.

[61] Canada Post submits that this issue should be addressed by the Québec Superior Court. First, the parties agree that the Québec court is properly seized of the judicial review hearing. CUPW can advance similar arguments to those it is making in the present application in Québec Superior Court for the court to weigh in the broader context of general labour law principles.

[62] Canada Post further submits that the parties engage in many proceedings in their Canada-wide collective bargaining relationship and it is inappropriate for this court to regulate the legal arguments that either party may make in other proceedings.

[63] Canada makes no submissions on this issue.

Analysis

[64] During the hearing of this Application, the parties recognized that there might be “remaining remedial issues” after this Court’s decision on the merits that would require further evidence and argument. However the Consent Agreement cannot be considered in isolation. Despite some of the broad language used in the Consent Agreement, its meaning must be interpreted with reference to the entire agreement, the scope of the relief requested in the Applicants’ Notice of Application and factum, and the disposition of the Application reflected in this Court’s April 2016 judgment. In the April 2016 judgment, this Court granted the relief requested by the Applicants and struck down the Act, including s. 6, in its entirety and with retroactive effect.

[65] On the first question, I find that the Applicants have not raised a “remaining remedial issue” within the meaning of the Consent Agreement. To the extent that the Applicants have identified an issue in their materials, it is an issue regarding the effect of the remedy granted in this Court’s April 2016 judgment and not a remaining remedial issue in relation to the relief sought by the Applicants in this application. The Consent Agreement clarified and narrowed the scope of remedies sought by the Applicants. In light of this Court’s decision to completely and retroactively strike out the Act under s. 52(1) of the Constitution Act, 1982 and to decline to award s. 24(1) Charter damages, there are no remaining remedial issues under the Consent Agreement.

[66] In the Consent Agreement, the Applicants advised they were seeking a retroactive remedy under s. 52(1) of the Constitution Act, 1982 and monetary damages under s. 24(1) of the Charter. The Consent Agreement further stipulated that the Applicants agreed not to seek as a remedy in these proceedings the invalidation of all or part of the 2012-2015 Collective Agreement.

[67] The main disagreement between the parties is the scope of the Consent Agreement. The Applicants urge a broad interpretation of the document. They submit that, at the stage of the hearing on the merits, the only two remedial issues before this Court were s. 52(1) of the Constitution Act, 1982 and s. 24(1) Charter damages. They submit that their request for declaratory relief under s. 24(1) of the Charter raises a remaining remedial issue that was not previously addressed by this Court.

[68] Canada Post submits that the Consent Agreement instead limited the relief available to the Applicants to only s. 52(1) and s. 24(1) damages. Given that both issues were addressed in this Court’s April 2016 judgment, there is nothing left to decide. Canada submits that this Court’s April 2016 judgment was final and the Applicants are essentially asking this Court to vary its judgment under the “guise” of a s. 24(1) declaration.

[69] It is important to begin with the language of the Consent Agreement. Although the final sentence contains the broad language of “any remaining remedial issues”, it is clear from the document as a whole that this passage refers to the relief requested by the Applicants. This means that, under the Consent Agreement, the parties would be able to make further submissions on “any remaining remedial issues” that were related to the remedies requested by the Applicants at the hearing, namely a declaration under s. 52(1) and an award of s. 24(1) Charter damages. It was not intended to further extend the scope of the Application after the hearing on the merits to provide the Applicants with an opportunity to come back and raise new issues such as the availability of a s. 24(1) Charter declaration. At no time prior to the commencement of the Application did the parties advise the court that they were not ready to proceed with the Application on the merits.

[70] The second paragraph of the Consent Agreement begins: “AND WHEREAS the Applicants have advised they are seeking a retroactive remedy under s. 52 of the Canadian Charter of Rights and Freedoms and monetary damages under s. 24(1) of the Canadian Charter of Rights and Freedoms [...]”. This passage clarified that these would be the two remedies sought by the Applicants and indeed these were the two remedies addressed at the hearing on this Application. The Consent Agreement, then, would have only remained in effect after this Court’s April 2016 judgment if there were remaining issues related to these two remedies. The most obvious example is that, if this Court awarded s. 24(1) Charter damages, it might well have been necessary to hear further submissions and evidence regarding the quantification of such damages.

[71] There is another reason for finding that the Applicants have not raised a remaining remedial issue. Even on a more generous reading of the scope of the Consent Agreement, the issue raised by the Applicants is neither remaining nor remedial in light of this Court’s April 2016 judgment. This Court struck down the Act in its entirety and with retroactive effect, including s. 6 of the Act. Without deciding whether the effect of the judgment was to invalidate the Extended Agreement, if it did, the effect would be just that—an effect of the judgment. While it is true that the Applicants did not seek declaratory relief under s. 24(1) of the Charter on the Application, the fact that a new remedy is requested does not mean that a new remedial issue has been identified. It is necessary to consider the subject matter sought to be remedied rather than the specific relief requested. In this case, the subject matter sought to be remedied is the possible effect of this Court’s April 2016 judgment and not a “remaining remedial issue.”

[72] Second, in light of my finding that the Applicants have not raised a remaining remedial issue within the meaning of the Consent Agreement, it is not necessary to consider what order, if any, could have been granted and I decline to do so.

[73] Third, I find this Court does not have jurisdiction on other grounds to determine the issue raised by the Applicants or to otherwise order, as part of this Application, further remedial relief. It is true that this Court’s April 2016 judgment has not been signed and entered, and the case law indicates that a court retains a broad discretion to alter a decision that has not been signed and entered: Griffin v. Dell Canada Inc., at para. 11; Montague v. Bank of Nova Scotia (2004), 69 O.R. (3d) 87 (Ont. C.A.), at paras. 34 & 40; 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, 371 D.L.R. (4th) 643, at para. 64. However, the case law also suggests that this discretion should be exercised cautiously to protect the principle of finality in judicial decision-making: Doucet-Boudreau, at para. 79; Beard Winter LLP v. Shekhdar, 2015 ONSC 4517, at paras. 29-34; Brown (Trustee of) v. Municipal Property Assessment Corp., Region 14, 2014 ONSC 7137, at para. 19.

[74] Altering a judgment to issue a new constitutional remedy, particularly one that was not raised during the hearing on the merits of the Application, would constitute a significant alteration to the April 2016 judgment that goes beyond the narrow scope of any jurisdiction retained by this Court by virtue of the judgment not being signed and entered. Similarly, the Applicants’ requested relief would alter the April 2016 judgment. If the effect of this Court’s complete retroactive declaration was to invalidate the Extended Agreement, then reinstating the Extended Agreement would clearly be an alteration.

[75] Fourth, the final question put to the parties in this Court’s August 2016 procedural Endorsement was whether their dispute regarding the enforceability of the Extended Agreement is properly the subject of a further proceeding before this Court, or the Québec Superior Court. Having decided that this Court does not retain jurisdiction to address this issue under the Consent Agreement, it appears that the issue of the enforceability of the Extended Agreement during the strike and lockout period is properly before the Québec Superior Court.

Disposition

[76] For the reasons set forth above I find that the Applicants have not raised a “remaining remedial issue” within the meaning of the Consent Agreement. It is therefore not necessary to consider what order, if any, should be granted regarding such a remedial issue. I find that this Court does not now have jurisdiction as part of this Application to order further remedial relief. The issue of enforceability of the Extended Agreement during the strike and lockout period is an issue properly before the Québec Superior Court.

[77] If the parties are unable to agree on the issue of costs regarding my determination they may contact me, if necessary, in order to set a timetable for the delivery of written cost submissions.

[78] I wish to thank the parties for their written submissions, which were of great assistance to the Court.

Firestone J.

Released: March 1, 2017

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CANADIAN UNION OF POSTAL WORKERS/SYNDICAT DES TRAVAILLEURS ET TRAVAILLEUSES DES POSTES, DENIS LEMELIN, RON HANNON and JEREMY LECLAIR Applicants – and – HER MAJESTY IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA Respondent -and – CANADA POST CORPORATION Intervener

REASONS FOR DECISION

Firestone J.

Released: March 1, 2017