Dargis v. Canada (Treasury Board), docket T-1512-98

Date: 19990301

Docket: T-1512-98

BETWEEN:

     MICHEL R. DARGIS and PAULA A. LEBLANC

     Applicants

     - and -

     HER MAJESTY THE QUEEN IN RIGHT OF CANADA

     AS REPRESENTED BY TREASURY BOARD

     Respondent

     APPLICATION UNDER SECTION 18.1 OF THE FEDERAL COURT ACT

     REASONS FOR ORDER

CULLEN J.:

FACTS:

[1]      The applicants are employed as Diplomatic Couriers (GS-MES-10) with the Department of Foreign Affairs and International Trade. They are represented by the Public Service Alliance of Canada and their terms and conditions of employment are governed by collective agreements between the Alliance and the Treasury Board, in particular a Group Specific Collective Agreement ("GSC Agreement") and a Master Collective Agreement ("MC Agreement").

[2]      Given the special conditions under which they work, the applicants are subject to a unique system dealing with their hours of work and the point at which they are entitled to be paid at an overtime rate. Diplomatic couriers are often required to work on statutory holidays. They work in three-month work cycles, each of which is equivalent to 522 hours. Compensation for cumulative hours up to 522 is at straight time rates. Compensation for any hours worked beyond 522 within the three-month work cycle is at an overtime rate which is equivalent to time and one-half of the straight time rate. For each of the 11 statutory holidays, Diplomatic Couriers receive ten hours' compensation, paid by separate cheque, which is provided in accordance with clause M-GS20.11(b).

[3]      The applicants seek judicial review of a decision of an Adjudicator appointed under the Public Service Staff Relations Act. The Adjudicator dismissed the applicants' grievances by which they maintained that their employer wrongfully applied the relevant provisions of the collective agreements in issue by failing to credit all of the hours to which they were entitled under clause 19.20 and, in particular, the hours of compensation received for designated holidays in accordance with clause M-GS20.11(b). The applicants argued that the result of this failure by the employer was that the applicants would not reach the overtime threshold of 522 hours as quickly and therefore would not receive overtime rates on as many hours worked.

[4]      Clause M-GS20.11 of the Master Collective Agreement reads as follows:

M-GS20.11 Couriers (Diplomatic)

(a) Only clause M-20.02 applies to Couriers (Diplomatic).

**

(b) In accordance with clause 19.20 Couriers (Diplomatic) shall receive ten (10) hours" compensation for any designated holiday specified in clause M-20.01 whether or not the designated holiday falls on a workday.

(c) Work performed by Couriers (Diplomatic) on a designated holiday will be compensated as per clause 19.20 of the Group Specific Agreement.

[5]      Clause 19.20 of the Group Specific Agreement reads as follows:

19.20 Couriers, Towermen and Harbour Managers are entitled to receive compensation at:

(a) straight-time rates for all hours compensated within a cycle up to a total to be determined by the following formula:

Number of calendar days in cycle x 40

7

(b) time and one-half (1 1/2) for all other hours worked.

DECISION UNDER REVIEW:

[6]      The Adjudicator found no provision in the collective agreement which would allow a credit of eight hours to be made for a designated paid holiday which happens to fall on a day of rest, nor a provision to add an additional eight hours of work to the cumulative hours of work totals in those situations where a designated paid holiday falls on a scheduled working day.

[7]      The Adjudicator determined, however, that a courier should be credited with eight hours of "work" where the designated paid holiday falls on a scheduled work day and the courier is given the day off to observe the holiday. He found that this was a situation parallel to that in which an employee took annual leave or sick leave replacing a scheduled day of work and was credited with "working" eight hours of that day.

ISSUES:

[8]      1. Did the Adjudicator err in law and refuse to exercise his jurisdiction or exceed his jurisdiction by placing a patently unreasonable interpretation upon the provisions of the collective agreements which were the basis for the applicants' grievances?

[9]      2. Was the Adjudicator's interpretation of the clauses of the collective agreements patently unreasonable, particularly insofar as the Adjudicator failed to give meaning to the clear words employed by the parties to the collective agreements and failed to give a consistent meaning to the same provisions in different parts of the collective agreements?

ARGUMENT:

Applicant:

[10]      The applicant submits that collective agreements must be interpreted in a manner which gives full effect to the intention of the parties as expressed through the words employed in the collective agreement itself. All the terms of the agreement must be read together as a whole. Words which are the same or have similar meaning ought to be given the same interpretation in various portions of the collective agreement unless there is a clear or express basis for not doing so. One clause should not be interpreted in a fashion which renders moot or absurd the effect of other clauses. The applicant relies on: Douglas Aircraft Co. of Canada v. McConnell (1979), [1980] 1 S.C.R. 245">[1980] 1 S.C.R. 245; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385.

[11]      The applicant submits that the Adjudicator made a patently unreasonable error of law in determining that there was no provision in the collective agreement to support the applicants' grievances. It is submitted that there are provisions in the collective agreements which deal squarely with these matters.

(i) Designated paid holiday that is not worked

[12]      The applicants submit that it was inconsistent with the language of the collective agreements for them to not be credited with the hours for which they were compensated when a designated paid holiday coincided with a scheduled day of rest and they did not work. They argue that clause M-GS20.11(b) states that the applicants shall receive 10 hours' compensation for any designated holiday, whether or not the designated holiday falls on a work day (even when they do not work). This clause explicitly incorporates clause 19.20 of the MC Agreement, which specifies the formula for determining which hours will be compensated at straight time and which at time and one-half. Clause 19.20 clearly states that the applicants are entitled to receive compensation at straight time rates for all hours compensated within a cycle up to 522, and overtime rates for the balance of compensable hours.

[13]      It is submitted that given the reference to "compensation" in clause M-GS20.11 and the specific incorporation of clause 19.20, it must follow that the word "compensation" should be given the same meaning. The compensation received by the applicants for a designated paid holiday, even when they do not work that holiday, must be accounted for in identifying the cumulative hours under clause 19.20 of the MC Agreement.

(ii) Designated paid holiday that is worked

[14]      The applicants submit clauses M-GS20.11(b) and (c) in conjunction dictate that Diplomatic Couriers are always entitled to 10 hours' compensation for all designated holidays and that, when they work on a holiday, they are entitled to compensation for that work in addition to the 10 hours' compensation for the designated paid holiday. Any other interpretation would render clause M-GS20.11(c) meaningless as it is the only clause which refers to the actual work performed by Diplomatic Couriers on a designated holiday. The Adjudicator's interpretation of this clause by the Adjudicator, which maintains that compensation for work on a designated holiday is accounted for in clause 19.20 but compensation for the designated holiday itself is not is patently unreasonable. The Adjudicator ignored clause M-GS20.11(b) and failed to give a common meaning to the words "compensation" and "compensated" in concluding that only the actual work under clause M-GS20.11(c) would be added to the cumulative hours under clause 19.20.

[15]      The applicants submit that given the reference in clause 19.20 to the fact that "all hours compensated" up to 522 are calculated at straight time rates, it must follow that the hours compensated for work on the designated paid holidays and the hours compensated in respect of the designated paid holiday itself must both be accounted for in calculating the cumulative hours under clause 19.20. To conclude otherwise would render meaningless the incorporation of clause 19.20 in both clauses M-GS20.11(b) and (c) and would require a differing interpretation of the word "compensation" in clause M-GS20.11(b) where such a different interpretation is not justified.

[16]      The applicants submit that given the Adjudicator's finding that compensation for the designated holiday under clause M-GS20.11(b) is accounted for in the cumulative hours of work under clause 19.20 in a situation where a designated paid holiday falls on a scheduled work day and the courier is given the day off to observe the holiday, there is no reason why it should not similarly be accounted for in the scenario identified by the applicants herein.

[17]      It is submitted that the Adjudicator failed to have regard to the nature of the work of Diplomatic Couriers and the fact that the intention behind the specialised system for compensating them is to preserve their entitlement to be paid for holidays, though they are often required to work those holidays. The provisions also enable Diplomatic Couriers to receive additional pay when they do, in fact, work on a holiday; other employees in such a situation receive a benefit in the form of overtime pay for the work performed on a holiday itself. The Adjudicator's interpretation of these provisions effectively penalises the applicants as they are not credited for compensation received for designated paid holidays but only receive credit for the work performed on that holiday (other employees generally receive holiday pay and overtime pay).

Respondent:

[18]      The respondent submits that the applicants now seek a different remedy than that sought before the Adjudicator, that is, ten hours' credit in time for a designated holiday, in addition to payment for the hours associated with a designated holiday and the hours actually worked on a designated holiday, rather than eight.

[19]      The respondent submits that in interpreting the word "compensation" in clauses 19.20 and M-GS20.11, the Adjudicator had to have regard to the whole of these clauses, including the language of 19.20(b). While clause 19.20(b) speaks of "straight-time rates for all hours compensated", clause 19.20(b) refers to "time and one-half for all other hours worked". The language of 19.20(b) indicates that the hours that are added to the formula at 19.20(a) are hours actually worked. Therefore, "compensation" in the computation of the formula at clause 19.20 refers only to credit for hours actually worked.

[20]      It is submitted that the words of clause M-GS20.11 do not state that the 10 hours paid shall also be credited as though they were actually worked. The expression "in accordance with clause 19.20" is simply an indication that the ten hours paid shall be paid "in accordance with the applicable rate in clause 19.20". The applicable rate is straight time, if the employee is under the 522-hour mark, or time and one half, if the employee is above the 522-hour mark.

[21]      The respondent submits that the words of clause M-GS20.11(c) have the same meaning. They refer to the pay rate applicable to the hours worked. It is not stated in the language of the clause that credits of time associated with hours not worked on a designated holiday must be added to the accumulated credits. Had the parties to these collective agreements meant that employees would receive credits of time in addition to payment for a designated holiday, the language of the relevant provisions would have articulated such an entitlement. In the absence of such language, it is reasonable for the Adjudicator to state that he could find no provision in the collective agreements supporting the applicant's contention.

[22]      The respondent further submits that there is recognition of the special nature of the work performed by couriers in that couriers are paid ten hours for a holiday rather than eight. The evidence shows that although couriers have a normal work day of eight- hours in duration, they are compensated for ten-hour work days on designated holidays, pursuant to clause M-GS20.11(b).

LAW:

[23]      The standard of review applicable in this case is that set out in Canada (A.G.) v. P.S.A.C., [1993] 1 S.C.R. 941. This Court may only set aside the Adjudicator's decision if it is demonstrated that it was patently unreasonable or clearly irrational, that is, evidently not in accordance with reason. I note the comments of Cory and McLachlin JJ. in Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454 and Hardy (1998), 226 N.R. 319 (S.C.C.), at page 330:

A reviewing court cannot intervene simply because it disagrees with the reasoning of the arbitration board or because it would have reached a different conclusion. To do so would be to usurp the power of the administrative tribunal and to remove from it the ability to arrive at erroneous conclusions within its area of specialized expertise.

[24]      I can find no patently unreasonable error in the Adjudicator's determination that there is no provision in the collective agreement to support the two primary submissions put forth by the applicant, those being: (1) that the courier should be credited with "having worked" ten hours when a designated paid holiday coincides with a scheduled day of rest and the courier did not work on that day; (2) that the courier should be credited with "having worked" ten hours beyond the actual hours he worked when a designated paid holiday coincides with a scheduled work day and the courier worked on that day.

[25]      The applicants submit that the word "compensated" in subclause M-GS20.11(b) means the courier is to receive payment for the hours and receive credit in time for the hours. The applicants argue that given the specific reference to "compensation" in clause M-GS20.11, and the specific incorporation of clause 19.20, it must follow that the word "compensation" should be given the same meaning. I find that the Adjudicator assigned a common meaning to the term "compensation" in clauses 19.20 and M-GS20.11, that being that "compensation" was to mean monetary compensation and was not to include credit in time for hours worked.

[26]      The Adjudicator's interpretation does not render clause M-GS20.11(c) meaningless. The clause continues to operate to ensure that couriers will receive monetary compensation for the hours they work on a designated holiday.

[27]      The applicants submit that one need not refer to clause 19.20 in order to determine the rate of payment applicable to certain types of hours. It is submitted that the reference to 19.20 in M-GS20.11 is there simply to make it clear that the hours referred to therein are to count towards the overtime hour threshold total of 522 hours. The respondent submits that clause 19.20 is incorporated into M-GS20.11 in order to point out that the monetary compensation for those hours will be paid at the pay rate applicable in clause 19.20. I am in agreement with the respondent on this point.

[28]      I agree with the respondent's submission that, in interpreting the word "compensation," the Adjudicator had to have regard to the whole of these clauses. I find that the wording of clause 19.20 does not address the matter of the hours on a designated holiday which are to be included towards the 522-hour overtime threshold; it addresses only the rate at which hours are to be paid out. The clause sets out only the pay rate applicable to the hours worked; it does not address credit for hours not worked on a designated holiday when that holiday falls on a scheduled day of rest or on a scheduled work day.

[29]      I agree with the respondent that, had parties to these collective agreements meant for couriers to receive credits of time in addition to payment for a designated holiday, the language of the relevant provisions would have articulated such an entitlement. I note here that while M-GS20.11 sets out specifically the monetary compensation which is to be provided couriers on a designated holiday, there is no parallel provision setting out the hours which for which couriers are to receive credit on a designated holiday. I have determined that the Adjudicator made no patently unreasonable error in determining that there was no provision in the collective agreements to support the propositions advanced by the applicants.

[30]      The applicants argue that the Adjudicator"s interpretation of the agreements was illogical in the face of the intended purpose of the provisions, that being to recognize the special nature of the couriers" work. I note in this respect, however, the respondent"s submission that recognition of the couriers" special role is provided in the form of the 10 hours of compensation provided to the couriers for holidays by M-GS20.11, in view of the fact that couriers are recognized as working a standard day consisting of eight hours.

CONCLUSION:

[31]      In reaching my conclusion, I note the comments of Pinard J. in Canada (Attorney General) v. Seguin (1995), 101 F.T.R. 64, at page 80:

In the case at bar, having in mind the law and the facts, I feel I must apply a definite standard of judicial review. Accordingly, without endorsing the particular interpretation adopted by the adjudicator, and while realizing that in future others may interpret clauses M-29.01 in question differently, I intend to exercise great judicial restraint and refrain from intervening in an adjudicative decision which, within the limits of the jurisdiction conferred by law, interpreted a collective agreement in a sufficiently rational manner in reliance on the facts in evidence, and did so without infringing the rules of natural justice or procedural fairness.

[32]      In view of the standard of review applicable in this case and without endorsing the particular interpretation of the Adjudicator adopted in this case, I have determined that the Adjudicator interpreted the agreements at issue herein in a sufficiently rational manner in reliance on the evidence before it. Accordingly, the application is dismissed.

OTTAWA, ONTARIO

    

March 1, 1999.      J.F.C.C.