Date: 20100316
Docket: T-819-09
Citation: 2010 FC 299
Ottawa, Ontario, March 16,
2010
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
THOMAS
BEARSS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review of a decision by an adjudicator from the Public
Service Labour Relations Board dated April 22, 2009, allowing the respondent’s
acting pay grievance against his employer and ordering the readjustment of the
respondent’s annual rate of pay retroactively to July 1, 2005, from $91,233 to $94,873.
FACTS
Background
[2]
The
respondent, Mr. Thomas Bearss, is a retired public servant who was employed by
the Department of Foreign Affairs and International Trade. The applicant acts
for Mr. Bearss’ employer. The employer recalculated Mr. Bearss’ rate of pay following
the conversion of his acting position to a higher classification level in
accordance with the “Public Service Terms and Conditions of Employment
Regulations” (hereinafter the “Policy” or “PSTCER”). This Policy was
incorporated as part of the collective agreement with respect the Mr. Bearss
employment. Mr. Bearss grieved the recalculation of his acting pay and
succeeded before the adjudicator. The applicant now applies for judicial review
of the adjudicator’s decision.
[3]
The
parties jointly introduced an agreed statement of facts before the adjudicator.
The relevant paragraphs setting out the background facts are as follows:
Introduction
At issue in this grievance is the acting
FS-4 rate of pay to which the grievor became entitled on July 1, 2005.
Background
1. Mr. Thomas Bearss was a substantive
CO-02;
2. He initially joined the Public Service
on February 19, 1973;
3. He worked for Revenue Canada/Customs
and first served abroad as Customs Attache/Representative at CNGNY from 1975 to
1978;
4. In September, 1988, he joined the
Department of Foreign Affairs and International Trade on a Secondment from the
Department of Finance where he worked as an Economist ES-5 in the International
Trade and Finance Branch; the work, however, was similar and equivalent to that
done by FS-02 Trade Commissioners in the Branch;
5. In February 1992, he transferred to
DFAIT as a CO-2 and continued to perform the work of an FS-02 Trade
Commissioner;
6. On August 29, 1998, he was posted to
Port of Spain, Trinidad as a Commercial Counsellor- Although working in an FS-2
position, he continued to receive CO-2 pay as the maximum rate of pay of the
CO-2 level [which] was higher than the maximum rate of pay of the FS-2 level;
7. For 8 months in 2001-2002, Mr. Bearss
was Acting High Commissioner, an EX-3 position;
8. In the summer of 2002, the FS group
signed a new collective agreement which led to a pay restructure yielding a
higher FS-2 maximum rate of pay than the CO-2 maximum; as a result, he began
receiving acting FS-2 pay;
9. On August 25, 2002, Mr. Bearss was
posted to Buffalo as Consul/Senior Trade
Commissioner, an FS-2 position where he remained until his retirement on August
29, 2006;
10. As a result of a conversion of the FS
group on July 1, 2005, all substantive FS-2s were converted to FS-3.
11. On the same day, July 1, 2005, the
assignment position of Consul/Senior Trade Commissioner was converted from FS-2
to an FS-4 Senior Advisors IB, Abroad; as such, he was entitled to acting FS-4
pay;
12. Mr. Bearss’s acting FS-4 rate of pay
as of July 1, 2005 was recalculated from his substantive CO-2 rate of pay of
84,908 by adding the smallest increment in the FS-4 scale of rates (3,508) and
locating the rate of pay in the FS-4 scale which was nearest to but not less
88,416 (84,908+3,508);
13. On August 1, 2005, his rate of pay
was increased by an increment to 94,873;
14. Colleagues who were substantively
FS-02 prior to conversion (unlike Mr. Bearss who was substantively a CO-02)
were converted to FS-03. For employees who were substantively FS-03, the rate
of pay for assignment positions at FS-04 rate was calculated based on the
substantive FS-03 salary, which after the application of the promotion rule
yielded an acting FS-4 rate of 94,873, one increment higher than Mr. Bearss’s
acting FS-4 rate of 91,223;
15. Mr. Bearss filed a grievance on
November 4, 2005. See attached the grievance form.
Decision under review
[4]
In a 12-page
decision the adjudicator held that the employer had made a mistake and the
adjudicator ordered that Mr. Bearss’ annual rate of pay be increased from
$91,223 to $94,873 retroactively from July 1, 2005. The decision under review
held that Mr. Bearss was entitled to an additional $3,650 yearly increment. Mr.
Bearss retired in 2006.
[5]
Mr.
Bearss submitted that the employer miscalculated his acting pay from the date his
acting position was converted from FS-2 to FS-4. Mr. Bearss submitted that the
employer erred in not taking into account the conversion of the “substantive” FS-2s
to FS-3s, which also occurred on July 1, 2005.
[6]
On
July 1, 2005 the employer recalculated the respondent’s acting pay by reference
to the respondent’s substantive classification, CO-2, pursuant to subsections
24, 26, 46(b), and 46(E)(b)(ii) of the Policy. As a result, Mr. Bearss received
less acting pay than his FS-2 colleagues who were “substantively” at the FS-2
level when they were converted to the FS-3 level on July 1, 2005, but were
acting FS-4s.
[7]
Mr.
Bearss’ main submission before the adjudicator was that the applicant erred in
applying subsections 24, 26, 46(b), and 46(E)(b)(ii) of the Policy to
recalculate the respondent’s pay rate since the following two factors were not
present:
1.
the applicant
was not being “appointed” on July 1, 2005. He was rather occupying the same
position he has had since August 25, 2002; and
2.
the applicant
was not assigned “other duties to perform”.
Consequently, Mr. Bearss submits that the applicant
should have recalculated Mr. Bearss’ acting pay by reference to subsection
46(C), which required the recalculation of pay with regard to the substantive
conversion of Mr. Bearss’ acting assignment.
[8]
The
adjudicator held that the Policy was incorporated in the collective agreement
and as such he had jurisdiction to interpret it and determine whether the Policy
had been appropriately applied by the employer.
[9]
The
adjudicator noted that if Mr. Bearss had been assigned to a new position, or if
his duties had changed, the applicant’s method of recalculation would have been
correct.
[10]
The
adjudicator found that between 2002 and June 30, 2005 Mr. Bearss was treated
“according to the PSTCER…insofar as his rate of pay was considered, as if he
were an FS-02”. On July 1, 2005, two events combined to form the circumstances
of this case which in the adjudicator’s view rendered subsections 24, 26,
46(b), and 46(E)(b)(ii) of the Policy inapplicable:
1. The
Consul/Senior Trade Commissioner was converted from FS-2 to FS-4
2. The “substantive
FS-2s were converted to FS-3s, but were acting FS-4s.
[11]
In
dissecting the Reasons for Decision of the adjudicator, the Court finds that
the adjudicator made six separate findings:
1.
subsection
24(2) of the Policy only applied if Mr. Bearss had been promoted. On July 1,
2005 Mr. Bearss continued in his assignment without any change in his duties.
Accordingly, he was not promoted;
2.
subsection
26(2) of the Policy does not apply because Mr. Bearss was not “appointed” to a
new position. On July 1, 2005 he maintained exactly the same position which he
had been appointed to on August 25, 2002;
3.
paragraph
46(E)(b)(i) of the Policy is not applicable because Mr. Bearss was not required
“to perform other duties”. This is a condition precedent to this paragraph
applying;
4.
section
46(B) of the Policy is not applicable because Mr. Bearss was not “deployed” or “appointed”
to a new position. He continued in the position to which he was appointed on
August 25, 2002;
5.
subsection
46(C)(2) of the Policy is applicable since it provides that employees in acting
positions are entitled to receive “revisions to the salary range of the higher
classification level”;
6.
Mr. Bearss’
colleagues having positions similar to Mr. Bearss received acting pay in their
FS-4 positions at $94,873, rather than the $91,223 that Mr. Bearss received.
The adjudicator concluded that the employer did not apply the Policy
appropriately in this case. At paragraph 14 of the Agreed Statement of Facts,
the parties acknowledged that colleagues of Mr. Bearss were receiving this
higher level of pay in their acting positions as FS-4s.
[12]
The
adjudicator therefore allowed the grievance and ordered the adjustment of the
respondent’s annual rate of pay retroactively from July 1, 2005 until his retirement
in 2006.
LEGISLATION AND POLICY
[13]
This
application requires the interpretation of certain provisions of the “Public
Service Terms and Conditions of Employment Regulations” which is one of a
number of policies issued by the Treasury Board which form part of the
collective agreement governing Mr. Bearss’ employment.
[14]
The
Policy defines “deployment”, “acting assignment”, “higher classification
level”, and “substantive level” as follows:
Deployment means an assignment to another
position, made pursuant to the Public Service Employment Act; or
[…]
Acting assignment is a situation where an
employee is required to perform temporarily the duties of a higher
classification level for at least the qualifying period specified in the
relevant collective agreement or the terms and conditions of employment
applicable to the employee’s substantive level;
[…]
higher classification level, in the context of an acting
assignment, means a level where the maximum annual rate of pay exceeds the
maximum annual rate of pay of the employee’s substantive level;
[…]
substantive level means the group and level to
which an employee has been appointed or deployed under the Public Service
Employment Act, other than in an acting assignment situation.
[15]
Subsections
22, 23, 24, and 26 of the PSTCER set out the method of calculating the pay rate
of an employee upon appointment or promotion:
Rate of pay on appointment or deployment
22. Subject to these regulations and any
other enactment of the Treasury Board, the rate of pay of a person on
appointment to Part I Service shall be the minimum rate applicable to the
position to which the employee is appointed.
23. The rate of pay on appointment or deployment
of an employee, a person in the Public Service, a member of the Royal Canadian
Mounted Police or of the Canadian Armed Forces to a position to which these
regulations apply, shall be established in accordance with the promotion,
deployment and transfer by appointment or demotion rules as applicable.
Rate of pay on promotion
24. (1) The appointment of an employee
described in Section 23 constitutes a promotion where the maximum rate of pay
applicable to the position to which that person is appointed exceeds the
maximum rate of pay applicable to the employees substantive level immediately before
that appointment by:
a. an amount equal to at least the lowest
pay increment for the position to which he or she is appointed, where that
position has more than one rate of pay; or
b. an amount equal to at least four per
cent of the maximum rate of pay for the position held by the employee
immediately prior to that appointment, where the position to which he or she is
appointed has only one rate of pay.
24. (2) Subject to Sections 27 and 28, on
promotion, the rate of pay shall be the rate of pay nearest that to which the
employee was entitled in his or her substantive level immediately before the
appointment that gives the employee an increase in pay as specified in
subsection (1) above; or an amount equal to at least four per cent of the
maximum rate of pay for the position to which he or she is appointed, where the
salary for the position to which the appointment is made is governed by
performance pay.
[…]
Rate of pay on deployment or transfer by
appointment
26. (1) A person described in Section 23
is deployed or transferred by appointment where the deployment or appointment
to a position to which these regulations apply does not constitute a promotion
or demotion.
26. (2) Subject to Sections 27 and 28,
where the appointment constitutes a deployment or transfer by appointment, the
employee shall be paid the rate of pay that is nearest to but not less than the
rate of pay the employee was entitled to in his or her substantive level
immediately before the deployment or appointment, or if there is no such rate,
at the maximum rate of pay for the position to which he or she is deployed or
appointed.
[16]
Subsections
46(A), (B) and (C) of the Policy set out the rules for calculating the pay rate
of an employee on an acting assignment:
Remuneration – Acting assignment
46. (A) General
Where a deputy head requires an employee
to perform duties of a higher classification level for at least the qualifying
period specified in the relevant collective agreement or the terms and
conditions of employment applicable to the employee’s substantive level, the
employee shall be paid acting pay calculated from the date the employee began
to perform such duties.
46. (B) Rate of pay
Acting pay is the rate of pay that the
employee would be paid on deployment or appointment to such higher
classification level, as calculated pursuant to Sections 24 or 26 of these
regulations.
46. (C) Recalculation of pay
1. An employee in receipt of acting pay
is entitled to a recalculation of the acting rate of pay pursuant to Sections
24 or 26 when increments within and revisions to the salary range for the
substantive level occur. If following recalculation the rate of pay in the
higher classification level is less than the rate of pay received immediately
prior to the recalculation, the employee shall be paid at the rate of pay
received immediately prior to the recalculation.
2. An employee in receipt of acting pay
is entitled to revisions to the salary range of the higher classification
level.
[17]
Subsection
46(E) of the Policy sets out the pay calculation rules for employees employed
on subsequent acting assignments:
46. (E) Subsequent assignments
An employee in receipt of acting pay who
is required to perform other duties:
a. of the same group and level as those
for which acting pay is being paid shall:
i. be paid at the same rate of pay; and
ii. at the end of the increment period
for the higher classification level, be eligible for an increment in accordance
with the applicable provisions in Section 46.(D).
b. of a group and/or level higher than
that for which acting pay is being paid shall:
i. be paid the rate of pay that the
employee would be paid on deployment or appointment to such higher
classification level, as calculated pursuant to Sections 24 or 26. Should such
rate be less than the employee’s previous acting rate of pay, the employee
shall be paid at the rate of pay in the higher classification level that is
nearest to but not less than the previous acting rate of pay; and
ii. upon reverting to the previous acting
duties, be paid the rate of pay that would have been paid had the previous
duties been continuously performed.
c. of a group and level lower than that
for which acting pay is being paid, shall:
i. be paid a rate of pay as calculated
pursuant to Sections 24 or 26, and
ii. receive credit for increments from
the date the acting duties in the higher level position commenced, in
accordance with the provisions of Section 46.(D).
ISSUE
[18]
The
applicant raises the following issue:
1.
Did the
adjudicator render an unreasonable decision in determining that the calculation
of the Respondent’s rate of pay should be on the acting assignment position
rather than his substantive position?
[19]
The
respondent has raised a preliminary objection with respect to the applicant’s
affidavit.
STANDARD OF REVIEW
[20] In Dunsmuir
v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of Canada held
at paragraph 62 that the first step in conducting a standard of review analysis
is to “ascertain whether the jurisprudence has already determined in a satisfactory
manner the degree of [deference] to be accorded with regard to a particular
category of question”: Khosa v. Canada (MCI), 2009 SCC 12, per Justice
Binnie at paragraph 53.
[21]
Interpretation
of administrative policies governing the employment of public sector employees
has been recently held to be reviewable on a standard of reasonableness: Spencer
v. Canada (Attorney
General),
2010 FC 33, per Justice Near at paragraph 23.
[22]
In
reviewing the adjudicator’s decision using a standard of reasonableness, the
Court will consider “the existence of justification, transparency and
intelligibility within the decision-making process” and “whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law”: Dunsmuir, supra at paragraph 47, Khosa,
supra, at paragraph 59.
[23]
In Dunsmuir,
the Supreme Court of Canada specifically recognized at paragraph 68 the
“relative expertise of labour arbitrators in the interpretation of collective
agreements, and counselled that the review of their decision should be
approached with deference”. The Court also held that adjudicators appointed
under labour legislation can be presumed to hold “relative expertise in the
interpretation of the legislation that gives them their mandate, as well as
related legislation that they might often encounter in the course of their
functions”. Accordingly, the decision of the adjudicator in the case at bar
with respect to the interpretation of the Policy and the collective agreement
is entitled to deference within the standard of reasonableness.
ANALYSIS
Preliminary objection
[24]
Mr.
Bearss objects to paragraphs 7 to 9 of Ms. Colette Lussier’s Affidavit which
seek to respond to a verbal submission before the adjudication where the
respondent submitted that his circumstances were “unique”. The applicant
offered its response at the hearing.
[25]
Paragraph
7 sets out the information provided to the adjudicator at the hearing, namely
that the situation presented in Mr. Bearss’ case was not unique because other
employees were treated similarly. As such, this evidence is admissible.
[26]
Paragraph
8 of Ms. Lussier’s Affidavit states that the respondent’s circumstances were
not unique in that the pay rate of 161 employees was recalculated in the same
manner by the employer. This evidence about 161 employees was not before the
adjudicator and as such it is improperly brought before the Court. It is not
permissible to bring new evidence on judicial review for the purpose of
bolstering submissions before the administrative tribunal. Accordingly, paragraph
8 of Ms. Lussier’s Affidavit will be struck out.
[27]
In
any event, the adjudicator’s interpretation of the Policy did not turn on
whether Mr. Bearss’ situation was unique.
Issue No. 1: Did the adjudicator
render an unreasonable decision in determining that the calculation of the
Respondent’s rate of pay should be on the acting assignment position rather
than his substantive position?
[28]
The
parties acknowledge that this is a highly technical case requiring the interpretation
of a complex Policy which is not clearly written. The difficulty in applying
this Policy is compounded by the fact that Mr. Bearss was actually a Commerce
Officer (CO-2), had been appointed to an “acting” position as a Foreign Service
Officer, and had remained in that “acting” position for 14 years. In this case,
the employer submits that the adjudicator erred in applying this Policy when making
the decision that Mr. Bearss was entitled to $3,650 annual increments from July
1, 2005 to the date he retired in 2006. At the outset, the Court agrees with
the applicant that the adjudicator erred by incorrectly considering Mr. Bearss’
“acting” position as his “substantive” position for the purpose of his rate of
pay recalculation. However, this error is not material in that it does not
affect the ultimate result.
First the facts
[29]
Mr. Bearss
was “acting” as a Foreign Service Officer (FS) from 1992 until he retired in
2006. His “substantive position” was as a Commerce Officer (CO).
[30]
In 2002,
Mr. Bearss was posted to Buffalo,
New York as “Consul/Senior Trade
Commissioner in an “acting” FS-2 position where he remained until his
retirement in 2006. However, on July 1, 2005 his “acting” position was
converted to a FS-4 position. At the same time, all “substantive” FS-2s were
converted to FS-3s.
Adjudicator’s Decision
[31]
The
employer relies on sections of the Policy under the headings “Rate of Pay on
Appointment or Deployment” and “Rate of Pay on Promotion”. The adjudicator
found that these sections are not applicable to Mr. Bearss because he was not “appointed”
to the position of Trade Commissioner or “promoted” on July 1, 2005. The Court
has reviewed the applicable provisions of the Policy and finds that the adjudicator’s
decision was reasonably open him. The adjudicator has expertise in interpreting
collective agreements and the terms and conditions of employment incorporated
as part of those collective agreements. The six finding of the adjudicator
stated above were reasonably open to the adjudicator.
[32]
With respect
to “acting” pay, the Policy provides in subsection 46(C)(2):
An employee in receipt of acting pay is
entitled to revisions to the salary range of the higher classification level.
This is clear. Mr. Bearss was entitled to “acting pay” in
accordance with the revisions to the salary range of the higher classification
level, i.e. the FS-4. The adjudicator’s decision was reasonably open to
him based on this subsection.
[33]
With
respect to the appropriate rate of pay in the scale or range of rates of pay
for FS-4s, the adjudicator found colleagues of Mr. Bearss who were doing the
same job and whose substantive FS-2 positions had been converted to FS-3
positions, but were being paid rates of pay at the FS-4 rate because they were
in acting FS-4 positions like Mr. Bearss, received a rate of pay in the amount
of $94,873 within the range of FS-4 rates. This was one increment higher than
Mr. Bearss’ acting FS-4 rate of $91, 223. Accordingly, the adjudicator agreed
with Mr. Bearss that the appropriate rate of pay for Mr. Bearss in the acting
FS-4 position was the same as his colleagues. The Court has reviewed the Policy
and does not find anything in the Policy which speaks to this issue. Moreover,
the adjudicator determined that the sections of the Policy which were relied
upon by the employer did not apply to Mr. Bearss because he was not
“appointed”, not required to perform new duties, and not “promoted”. Since Mr.
Bearss was continuing to perform his same duties in the acting position,
subsection 46(C)(2) of the Policy applies and he was entitled to “acting pay”
in accordance with revisions to the salary range of the higher classification
level.
[34]
Counsel
for the employer made strong and forceful submissions, and offered the Court
the employer’s interpretations of the Policy as they pertain to Mr. Bearss.
While these interpretations are reasonable and were reasonably open to the adjudicator
if he agreed with them, the Court finds that the adjudicator’s different
interpretation was also reasonably open to the adjudicator.
CONCLUSION
[35]
The Court
concludes that the adjudicator’s decision was reasonably open to him. At the
same time, the interpretation of the employer would have also been reasonably
open to the adjudicator. Because the Court must be deferential to the adjudicator,
who has expertise in interpreting collective agreements and pay administration
policies, the Court cannot interfere since the adjudicator’s decision was
reasonably open to him.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
Paragraph
8 of the Lussier Affidavit is struck; and
2.
The
application for judicial review is dismissed with costs.
“Michael
A. Kelen”
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