Kilburn v. Canada (Treasury Board), docket T-1-96

Date: 19971212

Docket: T-1-96

BETWEEN:

     JAMES KILBURN

     Applicant

     - and -

     TREASURY BOARD

     (Transport Canada)

     Respondent

     REASONS FOR ORDER

MacKAY J.:

[1]      The applicant seeks an order setting aside a decision dated November 24, 1995 by an adjudicator under the Public Service Staff Relations Act, R.S.C. 1985, c.P-35, as amended (the "PSSRA"), whereby the grievance of the applicant against his employer, Transport Canada, was denied. The adjudicator found that the employer had not acted unfairly or unreasonably in denying an extension of salary maintenance, beyond a normal one-year term, although that term, and a possible extension of it upon consultation and agreement, were provided for in the collective agreement applicable to the applicant's employment.

Background

[2]      Until his illness and subsequent involuntary retirement the applicant was an operational air traffic controller working at the Toronto tower. On September 5, 1991, he went on sick leave and eventually he sought involuntary retirement on the ground that he was medically unfit for the work of a controller.

[3]      All air controllers were required to have a Licence Validation Certificate as part of the licence required for their employment. The certificate required that certain medical standards be met and that a controller be assessed as medically fit. That assessment was made by a Regional Aviation Medical Officer, partly on the basis of a report from a Civil Aviation Medical Examiner who was authorized to conduct prescribed medical assessments. The onus of obtaining the required medical assessment was on the controller who, when examined by a Civil Aviation Medical Examiner, ordinarily would have ninety days to qualify for the required assessment as "fit", by the Regional Officer. The Regional Officer could require further medical information or reports to establish medical fitness, in addition to the usual periodic report of the Civil Aviation Medical Examiner.

[4]      In the event of illness, departmental directives required a controller who missed his duty for health reasons to file a medical certificate. Under the collective agreement applicable to the controllers' union a controller was to satisfy medical requirements in the manner determined by the employer. The agreement included a Letter of Understanding, ("LOU 3-91") which provided for maintenance of salary of a controller who, inter alia, had used up any sick leave to which he was entitled and who had been found medically unfit and lost his Licence Validation Certificate. LOU 3-91 provided, in part:

The total maintenance of salary provided under this letter shall not exceed one (1) year during an employee's total period of employment in the Public Service unless, through consultation on individual cases, the parties agree to an extension of salary maintenance.

[5]      The requirements for involuntary retirement were governed by s.52 of the Public Service Superannuation Regulations, C.R.C., c.1358, as amended, and these were further discussed in Personnel Bulletin 84-20, dated October 23, 1984. Under s-s.52(a) of the Regulations, involuntary retirement was available where "the employee is unable to meet the medical requirements for validation of his Air Traffic Controller Licence...by the Department of Transport". The Bulletin also indicated that evidence required for involuntary retirement included a letter from the appropriate Transport Canada authority invalidating the controller's licence for medical reasons and a letter from management removing the employee from employment because of the lack of a valid licence.

[6]      After Mr. Kilburn, the applicant, left his work because of illness in September 1991, he neglected to file the usual forms required of those on sick leave, despite numerous reminders, until March 1992. His Licence Validation Certificate expired on April 1, 1992 and although he had been reminded in February to renew the certificate he had not done so. After June 1992, he again neglected to file medical certificates to explain the basis for his failure to work, though management continued to direct that those be submitted. In November and December 1992, his manager wrote to him, warning that he would be placed on unpaid leave unless medical reports were provided and he took steps to renew his Licence Validation Certificate.

[7]      In December 1992, he was examined by a Civil Aviation Medical Examiner who reported that he was medically unfit as a result of psychiatric ailments, including anxiety and depression, and of alcoholism. Upon receipt of that report, the Superintendent of Air Traffic Services and Human Resources (the "Superintendent") wrote to Mr. Kilburn advising that he would be on maintenance of salary from January 24, 1993 until January 23, 1994. The Superintendent raised questions about the applicant's ability to work, to which the applicant responded indicating he was unable to perform duties and he had no fixed return date at that stage. After his maintenance of salary began, on January 27 the Regional Medical Officer wrote to him requesting further information about his medical condition. That letter was reportedly not received by the applicant. Nor was it received by the Civil Aviation Medical Examiner, who had reported him unfit in December 1992 and to whom a copy of the letter had been sent. In the result, that request went unanswered.

[8]      The applicant's manager was directed to continue seeking medical reports on a monthly basis from the applicant during the period when he was on maintenance of salary. At that stage, with action by the Regional Medical Officer outstanding in relation to his medical condition following the medical examination completed in December, 1992, even though his Licence Validation Certificate had expired months before, it was apparently not deemed to have been finally affected until consideration and decision on his fitness was completed by the Regional Officer.

[9]      On July 13, 1993, his manager wrote to the applicant requesting medical forms on a regular basis and by separate letter, requesting consent of the applicant, and his undertaking, for an assessment of his medical fitness by a doctor of Health and Welfare Canada, a procedure not specifically provided for under regulations, the collective agreement or regular practice. In the circumstances, his superiors were anxious to have some independent assessment of his health circumstances.

[10]      The applicant was away for much of the summer of 1993 and, when the forms requested in the previous July had not been provided by November, his manager wrote again, and again indicated that in the absence of assessment by a Health and Welfare doctor it would not be possible to seek involuntary retirement at the end of the period of salary maintenance. The applicant completed the necessary consent forms early in November. The Health and Welfare doctor on receipt of these wrote to the doctor listed by the applicant as his family physician, and the latter responded early in December 1993 that he was no longer Mr. Kilburn's personal physician and was not able to provide current advice. The Health and Welfare doctor wrote to Transport Canada in early December to relay this information and to indicate that new consent forms would be required from the applicant with the names of his physicians. It appears that the determination that new consent forms were required was in error, at least so far as it included consent to the applicant's examination by Health and Welfare staff, which had originally been authorized until mid-January 1994. The advice that additional consent forms were required reached the applicant only in mid-January, 1994, and at about the same time his manager directed that the applicant be put on leave without pay effective January 24, the day after his maintenance of salary term expired.

[11]      Meanwhile, by letter dated in mid-December 1993, which was only received by his manager a month later, the applicant had requested involuntary retirement. However, as we have seen, when his salary maintenance period expired on January 23, Mr. Kilburn was put on leave without pay. The Superintendent then wrote a detailed letter to him to advise that his request for involuntary retirement was denied because he had not yet been found "unfit" by the Regional Medical Officer. He was further advised that retirement, either voluntary or involuntary, would take some three months to process and he was directed to provide medical reports covering the period of his absence and to fill out new consent forms for examination by Health and Welfare doctors. Those completed consent forms were received by the employer on January 31, 1994.

[12]      Throughout the period up to January 1994 the union was apparently consulted and kept informed by the manager and the Superintendent, and it was invited on occasion to intervene. That did not result in getting the applicant to fulfil the usual procedures for involuntary retirement in a timely fashion.

[13]      On March 2, 1994, the applicant asked that his salary maintenance be extended retroactively from January 24, 1994, on the basis that "[t]hrough no fault of my own, the [Regional Officer] has not yet revoked my [Certificate], and as a result I have been unable to avail myself of early retirement". The Superintendent summarized the situation for head office, characterizing the applicant's assertions regarding his lack of fault as "inaccurate".

[14]      The matter was reviewed on March 10, 1994 by a senior officer with Air Traffic Headquarters in Ottawa who, after considering the applicant's request and the Superintendent's submissions, recommended that extension of maintenance of salary not be granted, on the basis there was no compelling reason to do so and the renewal, if granted, would be retroactive and for an indefinite period. That report noted the applicant was apparently permitted to use sick leave for more than a year without challenge from management, he had allowed his annual aviation medical examination date to pass without seeking an assessment, he had not provided information requested by the Regional Officer, when asked to return forms completed on several occasions he had failed to do so, and the applicant had a long history of non-cooperation and he did not seek extension of his salary maintenance program while it was initially in effect. In making his recommendations the officer at headquarters did not consult with, and had no submissions from, the union. His report and recommendations were accepted on March 11, 1994, by the Director of Air Traffic Services, who refused the applicant's request without providing reasons. A letter advising of the refusal was forwarded to Mr. Kilburn on March 22, 1994.

[15]      Meanwhile, on March 7, steps had been initiated in relation to the proposed Health and Welfare Canada assessment, and medical appointments with specialists were arranged for the applicant. In mid-April, 1994, the Health and Welfare officer wrote to Transport Canada to advise the applicant was unfit for work and if the applicant's physician would complete necessary documentation, the applicant could be considered for early retirement on medical grounds.

[16]      In April, 1994, the former Superintendent became the new manager of Pearson Tower in Toronto. When contacted in May, 1994 by the applicant who advised that he had been found medically unfit, the manager indicated that with this report the Regional Officer would be able to complete his assessment. Thereafter, however, the Regional Officer advised that he could not rely on the Health and Welfare Canada report, since the applicant's last medical, in December, 1992, more than a year earlier, meant that his file was not active. For the Regional Officer's purposes the applicant had to be re-assessed by a Civil Aviation Medical Examiner.

[17]      In mid-June the manager made arrangements and assisted the applicant to be examined by the Civil Aviation Medical Examiner. The latter was taken by the manager to various offices, to expedite the process of retirement for the applicant. Mr. Kilburn was then evaluated by the Regional Officer and assessed as medically "unfit". When this assessment was conveyed to the Regional Director of Licensing, the applicant's Certificate and Licence were suspended. The applicant then signed a letter of resignation and he was subsequently removed from his duties, and his request for involuntary retirement was then accepted, effective June 20, 1994.

[18]      On June 22, 1994, the manager, on behalf of the applicant, but unbeknownst to Mr. Kilburn, submitted a request for retroactive extension of the applicant's salary maintenance program from January 24 to June 20, 1994 on grounds that the applicant had suffered financially while on leave without pay, and some of the delay in processing involuntary retirement was, in the manager's view, attributable to Transport Canada. That request was not discussed with the applicant at that time and was not then reported in any formal way to the union.

[19]      That recommendation of the manager was again reviewed at headquarters by the same officer who had earlier recommended that the request for extension of salary maintenance be denied. He again recommended, on June 30, that this second request be denied, referring to the difficulty of setting a precedent for retroactive extension of salary maintenance, and indicating that the applicant's non-cooperation was the cause of delay in the processing of his request for involuntary retirement. Again, there was no consultation with the union and the union, which did not know of this request, made no submissions. On June 30, 1994, the Director refused the second request without providing reasons. By letter of July 4, the applicant was advised by letter from his manager that the second request had been made, and that it had been denied.

[20]      Thereafter, the applicant submitted a grievance concerning the decision made on June 30. That grievance was denied through various levels and was referred to an adjudicator under the PSSRA who heard the matter in October, 1995. By decision dated November 24, 1995, the adjudicator denied the grievance.

The adjudicator's decision

[21]      At issue before the adjudicator was whether, in considering whether to extend maintenance of salary, the employer was obliged by LOU 3-91 to consult with the union and whether the employer had an implied duty of fairness or reasonableness in applying the collective agreement. In particular, the applicant argued before the adjudicator that the employer had an obligation to initiate the consultation with the union and had failed to consider the medical condition of the applicant and its impact on his ability to make sound decisions. In addition, the adjudicator heard testimony from the applicant, including his opinion that the medical procedures he was asked to go through were unnecessary and amounted to harassment on the part of management.

[22]      The adjudicator held that LOU 3-91 did not include a consultation clause of the sort typically found in collective agreements. In the adjudicator's estimation, the wording of LOU 3-91 envisages the possibility of exceeding the one-year MOS period if the parties agree to do so as a result of consulting on a specific case where such an extension is sought. The adjudicator held that the party initiating such a consultation would normally be the one seeking the extension and, in the case at bar, the employer had no onus to initiate the consultation process. The key passage in the adjudicator's decision reads as follows:

Paragraph three [of LOU 3-91] is not a "consultation" clause as one normally finds such provisions in collective agreements. In fact, the collective agreement between the parties contains a very extensive consultation provision...which sets up very specific procedures for consultation at the national, regional and local level. Paragraph three, on the other hand, merely sets out that MOS is available to a qualifying employee for up to one year during that employee's total period of employment in the Public Service. However, it also envisages the possibility of exceeding the one-year period if the parties agree to do so as a result of consulting on the case. It seems apparent then, that one of the parties must initiate consultation on a specific case where it is intended to seek to exceed the one-year period. In my opinion, the party initiating such consultation would normally be the one seeking the extension. In the instant case, that would be the griever or his representatives. I see no onus on management to initiate the consultation process.

[23]      With respect to the issue of whether management acted in a fair and reasonable manner, the adjudicator declined to rule on whether the employer had such a duty but held anyway that management had not acted unreasonably in asking the applicant to submit various medical certificates and to submit to medical examinations for the purposes of assessing whether the applicant was "fit" for duty. While the applicant's uncooperative attitude may have stemmed from his illness, it did not make management responsible for the applicant's lack of cooperation or delay arising from that. Implicit in these findings is the conclusion that the employer did not act unreasonably in denying extension of the applicant's maintenance of salary.

Issues

[24]      The applicant submits that the issues before the Court in this application are three. The first is whether the adjudicator erred in law in finding that LOU 3-91 did not oblige the employer to initiate a consultation process or to seek agreement of the union before rendering a decision on the requests for extension of the salary maintenance benefits. The second is whether the adjudicator erred in law in refusing to rule explicitly on the employer's general obligation to act fairly and reasonably in exercise of its decision making authority under LOU 3-91. The third issue is whether the decision of the adjudicator that the employer did not act unreasonably in denying extension of MOS benefits constitutes an error of law.

Analysis

[25]      The parties were substantially agreed that curial deference is to be accorded in a review of a decision of an adjudicator under the PSSRA. Counsel for both parties referred to recent decisions of the Court, following amendment of the PSSRA, effective in 1993,¹ which omitted the privative clause previously included in the Act. While the parties agree on the standard, there is no agreement on its application in the circumstances of this case.

[26]      In Canada (Attorney General) v. Wiseman,² my colleague, Mr. Justice Cullen, had this to say about the appropriate standard:

...I find that the decision of the arbitrator in the case at bar should be accorded considerable or significant curial deference, particularly since it concerns a matter squarely within the scope of the arbitrator's jurisdiction and special expertise. Although I was unable to come up with a pat phrase -- such as "patently reasonable" -- to describe the kind of decision that demands judicial intercession, it is sufficient to say that only decisions not supportable by the evidence are subject to intervention.

This standard is to apply so long as the subject matter of the issues in a case falls within the expertise of the adjudicator.³

[27]      In Canada (Procureur général) v. Séguin⁴, Mr. Justice Pinard had occasion to review the jurisprudence on the standard to be applied in judicial review involving the PSSRA . In declining to intervene in an adjudicator's decision, he wrote as follows:

...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.

[28]      Turning to the case at bar, the applicant's first argument, as I understand it, is that the interpretation of requirements under LOU 3-91 for consultation and agreement between the parties is a question of law. The applicant argues that by finding that there was no obligation on the part of the employer to initiate consultation, or even to make the union aware, about the request for an extension of salary maintenance, the adjudicator has rendered the relevant portion of LOU 3-91 meaningless and, at least implicitly, this is unreasonable and constitutes an error of law. The relevant portion, as noted above, reads "the total maintenance of salary provided under this letter shall not exceed one (1) year during an employee's total period of employment in the Public Service, unless, through consultation on individual cases, the parties agree to an extension of salary maintenance." It is submitted for the applicant that this passage required the employer to consult with the union at the time of both the first and second requests for extension, something it failed to do.

[29]      There is no doubt that the adjudicator, in interpreting LOU 3-91 was dealing with an issue clearly within his special expertise; namely the interpretation of a collective agreement. As such, on the jurisprudence relating to the standard for judicial review, I may only intervene if the decision was made either in an insufficiently rational manner in relation to the facts in evidence or by infringing the rules of natural justice or procedural fairness.

[30]      Despite strong urging by counsel for the applicant, I decline to intervene in the adjudicator's finding that the reference to consultation and agreement between parties, anticipated by LOU 3-91, did not, normally, impose an obligation on the employer to initiate the consultation process. In the words of the adjudicator, "the party initiating such consultation would normally be the one seeking the extension. In the instant case, that would be the grievor, or his representatives". This decision was not, in my view, so unreasonable that it would justify the intervention of this Court. Whether this Court agrees with the adjudicator's interpretation and application of LOU 3-91 in regard to the first request, a normal request by the applicant, "the one seeking the extension", is of no significance. I am not persuaded that interpretation and its application to that request is so unreasonable that it constitutes an error in law warranting intervention by the Court.

[31]      I have greater difficulty with the adjudicator's finding, implicitly applying the same interpretation to the employer's action in regard to the second request for an extension of salary maintenance. As I read his decision, the adjudicator fails to distinguish the factual bases of the first and second requests. In deciding that there was no onus on management to initiate the consultation process, the adjudicator expressly makes reference to the normal circumstances where the one seeking the extension would be expected to initiate the process of consultation. In my view, the factual circumstances surrounding the two requests in this case required that each be considered separately. The second request was initiated by the new manager, not by the applicant. While it is not clear in the record whether the new manager mentioned, in passing, the second request to a local union representative, there is no evidence suggesting that the union was formally notified of the existence of this request before a decision was rendered. It is clear that the applicant was not informed about the second request until after the negative decision.

[32]      The second request did not fit the adjudicator's own concept of normal circumstances in which the one seeking an extension would make application for it. Where neither the applicant nor his union were aware of the request for an extension, made for his benefit, it would be unreasonable to presume that either should initiate steps for consultation. At the very least, it seems to me that LOU 3-91 required, in the circumstances of the second request, that the union or the applicant be made aware of the request.

[33]      For the respondent, it was urged that the second request was merely a gratuitous act to assist the applicant by another employee, his manager, who apparently felt some personal responsibility for part of the delay in obtaining necessary medical assessment of the applicant's condition. It was not an act done as a representative of the applicant and the latter should gain no entitlement under the collective agreement. That may be an appropriate conclusion but it is not one stated by the adjudicator and it is not one for this Court to make.

[34]      In my opinion, in failing to consider the application of the collective agreement, as provided by LOU 3-91, in the circumstances of the second request, where the employer failed to notify the applicant or his union of the request, the adjudicator erred in law. The collective agreement, as interpreted by the adjudicator, in my opinion, was not applied by him in relation to the facts in evidence about the second request for an extension. As a result, I would allow this application for judicial review and return the matter for re-determination before a different adjudicator.

[35]      I turn briefly to the other issues raised by the applicant. With respect to the submission that the adjudicator was obliged to determine, as a matter of principle, whether the employer had a general obligation to apply the collective agreement in a fair and reasonable manner, I do not agree that the failure to provide a definitive ruling on this matter of principle, which the applicant sought at the hearing before the adjudicator, was a reviewable error. Moreover, the adjudicator was clear that even if there were a duty on the employer to act in a fair and reasonable manner, this standard had been met. The adjudicator's conclusion was that "management did not act unreasonably" in insisting on evidence of the applicant's medical condition. Moreover, his conclusion that there was no onus on management to initiate the consultation process, supports the implication of his decision as a whole, that the employer did not act unreasonably in denying the requests for extension.

[36]      For the applicant, it was urged that the employer is required, by a term implicit in the collective agreement arising from the nature of collective bargaining, to act fairly and reasonably in the exercise of discretion, here in regard to the extension of salary maintenance within the terms of LOU 3-91. Reference was made before me, as it was to the adjudicator, to jurisprudence⁵ supporting the principle here urged. In his decision the adjudicator made reference to this and to his understanding that "the question of whether management must act fairly and reasonably in the exercise of its discretionary authority is one on which there is a broad divergence of views among arbitrators". He made reference to discussion of the issue by authors, and to one decision of the Ontario Court of Appeal where the implicit term here urged was not read into terms of a collective agreement in relation to management's discretion.⁶

[37]      In my opinion the adjudicator did not err in law by declining to enunciate a general principle of law as he was urged to do by the applicant. It was urged this Court should enunciate the principle sought, with a view to providing guidance to an adjudicator if the application for judicial review is allowed and the matter referred to an adjudicator for reconsideration. That is not a basis for the Court expressing a view on principle, without reference to particular facts. Any such statement of principle would be mere dicta.

[38]      I turn to the third issue, whether the adjudicator erred in law in finding that the employer did not act unreasonably in denying extension of maintenance of salary benefits under LOU 3-91. For the applicant it is urged that the decision was in error because the adjudicator did not take account of the respondent employer's unfairness in the process followed, and in failing to consider reasonably the circumstances of the requests for extension. The process in considering both requests was said to be unfair because of the limited time that elapsed after submission of each request and before the negative decision was rendered, a time so short that it would effectively preclude consultation. Moreover, the information included in the review of the applicant's request on the first occasion and in the review of his manager's submission on the later request, was said to have ignored important facts, such as the nature and severity of the applicant's illness, and to have misrepresented other facts relevant to the applicant's requests. The information provided to the decision-maker in relation to the requests was said to be inaccurate, incomplete, misleading, and presented in a manner prejudicial to the applicant.

[39]      Yet the applicant had full opportunity at the adjudication hearing to present his case and to underscore the inadequacy of the evidence the employer relied upon in rendering a decision on the requests for extension. There is no issue raised in this case that there was any procedural unfairness in the adjudication itself. The adjudicator had the evidence before him, including evidence introduced by the applicant, and in rendering his decision that evidence was weighed, and the adjudicator did not find, in coming to his decision, that the employer failed to meet essential standards of fairness and reasonableness. In my opinion the adjudicator was entitled to so find.

[40]      The issue before this Court on judicial review is not whether the employer's decisions were fair or reasonable. It is not for the Court to second guess the adjudicator's finding in this respect. The Court's task is to assess whether the adjudicator's decision was made in a rational manner in reliance on the facts in evidence, and to ensure that the adjudicator's process did not infringe applicable rules of natural justice or procedural fairness. I am not persuaded that the adjudicator's decision-making suffered from any of these faults. There was evidence on the record that the delay resulting in the request for salary extension was attributable, at least in part, to the applicant's failure to return forms and supply requested information in a timely fashion. I may remain puzzled as to why an assessment by Health and Welfare Canada doctors, which proved to be unnecessary, was an important factor in the delay in assessing the fitness of the applicant for work, and why the request for this assessment came from management and not from the Regional Medical Officer. Moreover, it would appear that a second set of forms for consent to examination by Health and Welfare doctors was not necessary, and yet the delay arising from the direction requiring them was ignored by the employer. Nevertheless, these are questions arising from the evidence that was before the adjudicator, as was also the evidence of failure by the applicant to provide forms in timely fashion.

[41]      In my opinion, other than in his failure to consider the circumstances of the second request, it cannot be said that the adjudicator's decision was made in an irrational manner without reliance on facts in the evidence. Even if the Court were to reach a different decision on the record, that is not a basis for intervening. As a consequence, with deference, I do not find that the adjudicator's decision was so perverse or unreasonable in assessing the evidence of the employer's decision, particularly in regard to the first request, by the applicant, that this Court should intervene on judicial review.

[42]      Two additional issues were touched upon in oral argument before me. First, there was difference between the parties as to the weight to be given the applicant's affidavit. It was urged by counsel for the respondent that the affidavit did not actually reflect the applicant's personal knowledge. Counsel for the applicant submitted that the respondent's arguments on this issue merely re-visited a matter already addressed in a motion, to strike the affidavit or portions of it, which was dismissed by my colleague Madame Justice McGillis in interlocutory proceedings. Since my decision does not rely in any material way on the applicant's version of facts that were said to be beyond his personal knowledge, it is unnecessary to resolve this issue.

[43]      Finally, it was urged by counsel for the applicant that special circumstances existed in this case justifying the awarding of solicitor-client costs against the respondent, not for all costs incurred in this application, but rather for expenses associated with attendance for cross-examination, in Toronto, of the applicant on his affidavit. For the applicant, this cross-examination was said to be a needless expense in that it resulted in no real benefit for the respondent. The applicant had agreed to deal with any concerns the respondent might have had with regard to the affidavit in a less expensive fashion. The cross-examination did lead to an interlocutory application by the respondent, which, when heard, was dismissed.

[44]      I am not convinced that the respondent's decision to proceed with the cross-examination of the applicant could constitute special reasons that would justify the awarding of costs. In my view, the respondent was entitled under the Rules to conduct cross-examination on the applicant's affidavit. Merely because perceived discrepancies in the affidavit did not turn out to be serious is not grounds for condemning the respondent's conduct in costs. There is no evidence that the respondent was acting in bad faith. Here the applicant had simply urged that perceived discrepancies in the affidavit were remediable by a means other than a cross-examination. This assertion, in my view, was insufficient to render unreasonable the insistence of the respondent that the applicant be cross-examined, as the respondent was entitled to do under the Rules.

Conclusion

[45]      I conclude that the adjudicator erred in law in his decision of November 24, 1995, by failing to consider the application of the collective agreement under LOU 3-91 to the circumstances of the second request for extension of salary maintenance for the applicant. An Order goes allowing this application and referring the matter for re-determination by another adjudicator under the Public Service Staff Relations Act. I make no directions for that hearing since the interpretation and application of the terms of LOU 3-91 to the circumstances of the two requests for extension of salary maintenance is a matter within jurisdiction of an adjudicator, not a matter of direct concern for this Court.

[46]      The Order now issued, specifies that there are no special circumstances, as required by Rule 1618, that would warrant an award of costs.

                                     W. Andrew MacKay

    

                                         Judge

OTTAWA, Ontario

December 12, 1997

__________________

^1.      See Public Service Reform Act, S.C. 1992, c.54, s.73, effective June 1, 1993.

^2.      (1995), 95 F.T.R. 200. See also Reibin v. Canada (Treasury Board) (1996), 114 F.T.R. 174; Barry v. Canada (Treasury Board) (1996), 115 F.T.R. 281; Romanik v. Canada (Treasury Board) (1996), 111 F.T.R. 134; Ouimet v. Canada (Conseil du Trésor) (1995), 106 F.T.R. 161.

^3.      Green v. Canada (Treasury Board), (July 8, 1997), Court File No. T-1710-96 (F.C.T.D.).

^4.      (1995), 101 F.T.R. 64 at 80.

^5.      Council of Printing Industries of Canada and Toronto Printing Pressmen and Assistants' Union No 10. et al., (1983), 42 O.R. (2d) 404 (C.A.); Meadow Park Nursing Home and Service Employees International Union, Local 220 (1983), 9 L.A.C. (3d) 137; Canadian Union of Public Employees, Metropolitan Toronto Civic Employees' Union, Local 43 v. Metropolitan Toronto (Municipality) (1990), 74 O.R. (2d) 239 (C.A.); Re Brampton Hydro Electric Commission and C.A.W. - Canada et al. (1993), 108 D.L.R. (4th) 168 (Ont. Div. Ct.).

^6.      Referred to by the adjudicator were Brown and Beatty, Canadian Labour Arbitration (3rd Ed.) at pp. 4-40 and 4-41; and Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association et al. (1981), 124 D.L.R. (3d) 684 (Ont. C.A.) per Houlden J.A. at 687.