Date: 20120612
Docket: T-320-11
Citation: 2012 FC 719
Toronto, Ontario, June 12, 2012
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
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THE ATTORNEY GENERAL OF CANADA
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Applicant
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and
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MARK TIMSON, ROBERT DAVIS,
DAVID BENTLEY, BERNARD JONES,
ROB FINUCAN, MIKE CARDINAL,
TAMMY MACQUEEN, AYSHA WILSON,
DOUG VELLA, JEAN-LUC
CHAMAILLARD,
ÉRIC TESSIER, GRAHAM HUGHES,
CURTIS THOMPSON, SHANNON COLE,
TRAVIS ROGERS, CHRISTIAN
PLANTE,
ANDREW CATHCART, SERGE
THERRIAULT,
CHRISTOPHER SMITH, CURTIS FISHER,
BRUCE GABRIEL, TED GRAUS,
JOSEPH HART,
ROBERT SCHULTZ, TERRY WALSH,
BRIAN SQUIRES, RANDY WELSH,
TREVOR KEMBLE,
DANIEL BEAUCHAMP,
RORY MUNRO, JULIE
BRISSON
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review in respect of the February 1, 2011
decision of Adjudicator Pineau of the Public Service Labour Relations Board
[PSLRB or the Board] granting the respondents’ 42 grievances seeking acting pay
for time spent providing training to colleagues [the Timson matters].
The applicant alleges that the decision in the Timson matters should be
set aside because the Adjudicator violated principles of natural justice or
procedural fairness or, alternatively, issued an unreasonable decision in
granting the grievances.
[2]
I
have determined that the decision must be set aside because the procedure
adopted by the Adjudicator was fundamentally unfair and, indeed, resulted in
her ruling on the merits of the grievances in the Timson matters without
affording the parties an opportunity to make submissions or file evidence in
respect of the merits of the grievances. Accordingly, there was a breach of the
principles of procedural fairness which necessitates the decision being set
aside, with the matter being remitted back to a different PSLRB adjudicator for
re-hearing. Given this determination, it is not necessary or appropriate to
address the applicant’s alternative submission regarding the unreasonableness
of the decision.
Background
to the Decision
[3]
The
respondents are security officers, employed in the Correctional Service of
Canada [CSC] and classified at the CX-01 or CX-02 levels. They are members of a
bargaining unit represented by the Union of Canadian Correctional
Officers-Syndicat des Agents Correctionnels du Canada-CSN [CSN or the union]. CSC
denied their claims for acting pay for time spent delivering various forms of
training, including chemical agent, first aid, self-contained breathing
apparatus, firearms, personal safety refresher, community disengagement and
emergency response training. The respondents filed grievances, alleging that
this refusal violated provisions of the collective agreement applicable to them,
and the CSN referred their grievances to adjudication under the Public
Service Labour Relations Act, SC 2003, c 22, s 2.
[4]
The
collective agreement contains the following provisions:
43.05 Instructor allowance
When an employee acts as an
instructor, he shall receive an allowance equal to two dollars fifty cents
($2.50) per hour, for each hour or part of an hour.
[…]
49.07 When an employee is required by
the Employer to substantially perform the duties of a higher classification
level in an acting capacity and performs those duties for at least eight (8)
hours of work, the employee shall be paid acting pay calculated from the date
on which he or she commenced to act as if he or she had been appointed to that
higher classification level for the period in which he or she acts.
[5]
Clause
49.07 appeared in the predecessor agreement (albeit differently numbered) but clause
43.05 was added during the last round of bargaining for the renewal of the
agreement.
[6]
Under
the predecessor collective agreement, a group of CSC employees classified at
the CX-2 level filed similar grievances, alleging that they were entitled to be
paid acting pay when they provided firearms training; their grievances were
allowed by the PSLRB in Lavigne et al v Treasury Board (Correctional Service
of Canada), 2009 PSLRB 117, [2009] CPSLRB No 117 [Lavigne]. That
case, however, did not deal with any form of training other than firearms
training, arose under a different collective agreement between the employer and
the CSN (which lacked clause 43.05) and dealt with claims where the grievors
had provided training for eight or more consecutive hours within the 25 working
days preceding the date the grievances were filed.
[7]
Of
the 42 grievances at issue in the decision, only 19 were initially referred to
adjudication. The employer wrote to the Board and asked it to hold 18 of them
in abeyance, pending disposition of Mr. Timson’s grievance as a “test case”. The
CSN opposed this request and took the position that the Lavigne decision
had already decided the matters raised in the grievances, so there was no need
for a test case. The PSLRB convened a telephone conference call to discuss the
employer’s request, during which it became apparent that additional acting pay
grievances had been filed. Following the call, the Board wrote to the employer
and the union to request a list of all grievances which had been referred to
adjudication on the issue of acting pay for CSC instructors and to request
dates for a further telephone conference call to discuss how to deal with them.
[8]
The
PSLRB convened a subsequent telephone conference call with the employer, the union
and their respective counsel, which was chaired by Adjudicator Pineau. During
the course of this call, Ms. Pineau indicated that she was of the view that the
Lavigne decision did have some bearing on the matters at stake, and the
employer representatives understood her to indicate that she would review
whether the Lavigne decision should be given significant weight in the Timson
matters and whether the employer’s request to hold certain of the grievances in
abeyance should be granted. The parties discussed dealing with these issues by
way of written submissions.
[9]
Following
the teleconference, the PSLRB wrote to the employer and the CSN on November 12,
2010, to confirm what was discussed during the teleconference. The terms of the
letter are significant to the issues in this application for judicial review;
it provided in relevant part as follows:
This letter follows the pre-hearing teleconference
held on November 10, 2010 with respect to the attached list of files. This will
serve to confirm the following:
1.All
grievances presently referred to adjudication on the issue of acting pay for
instructors including those on Mr. Graham’s list provided on October 18, 2010
have been reassigned to Adjudicator Pineau;
[…]
1.
After
review of the Lavigne’s decision, Adjudicator Pineau is of the view that
it deals with a similar subject matter and is relevant to these files;
2.
Adjudicator
Pineau has requested written submissions on the applicability of the Lavigne
decision (2009 PSLRB 117);
3.
The
relevance of the Lavigne decision may be decided on the basis of written
submissions at the discretion of Adjudicator Pineau. If not, an oral hearing
will be convened to deal with the issues […]
[10]
The
employer and the CSN filed submissions in accordance with a timetable established
by the Board in its November 12th letter. The parties confined their
submissions to the issue of the binding effect of the Lavigne precedent
as a matter of principle, including whether it should be given weight under the
new (and different) collective agreement which had subsequently come into
force. Significantly, the employer did not raise any arguments as to why or how
the situations involved in the 42 Timson matters were different from
those in Lavigne in involving different types of training, employees who
did not work eight consecutive hours or who made claims for time worked more
than 25 working days prior to the date their grievances were filed. Each of
these matters might well provide a valid basis for distinguishing the Lavigne
precedent. The employer did not address these matters in its written
submissions because it understood that all that was at issue was the potential
applicability of Lavigne, as a matter of principle, under the successor
collective agreement. The CSN likewise did not address these issues in its
written submissions.
[11]
Although
the PSLRB has the statutory authority to dispose of grievances without holding
an oral hearing under section 227 of the PSLRA, as counsel for the applicant
notes, its common practice is to hold oral hearings in grievances and during
such hearings to receive sworn testimony, which is provided by way of
examinations-in-chief, cross-examination and re-examination of witnesses, to
have documents formally tendered and marked as exhibits and to receive submissions
at the conclusion of a case. In short, the procedure typically followed by the
PSLRB is similar to that followed by a court.
The
Decision
[12]
In
her February 1, 2011 decision, Adjudicator Pineau characterized the issues
before her as being twofold: first, whether the employer was seeking to
re-litigate an issue that had already been decided in Lavigne and,
second, whether there was any basis for reaching a conclusion different from
that reached in Lavigne. She went on to hold, without hearing any evidence
on the point, that the circumstances in the Timson matters were not
materially different from those in Lavigne. She also determined that
there was no material difference between the predecessor collective agreement
and the new agreement applicable in the Timson matters and that, while
the principle of stare decisis did not apply in labour arbitration, the
need for "finality and certainty" meant she should follow the Lavigne
precedent, without adjudicating each of the 42 grievances on their merits. She
accordingly allowed the grievances.
Was
There a Breach of Procedural Fairness?
[13]
No
deference is owed to an inferior tribunal where a breach of procedural fairness
is alleged because the determination of whether the tribunal has respected the
principles of procedural fairness is a matter for the reviewing court to decide
(see e.g. CUPE v Ontario (Minister of Labour), 2003 SCC 29, [2003]
1 SCR 539 at para 100; Canada (Attorney General) v Grover, 2004 FC 704,
[2004] FCJ No 865 at para 34).
[14]
As
the of Supreme Court of Canada noted in Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817, [1999] SCJ No 39 at paras 21-28, the
content of the duty of procedural fairness will vary from one tribunal to
another, depending upon the following factors:
1.
the
nature of the decision in question and the process followed making it, and, in
particular, the degree to which the decision-making process resembles that
followed by a court (in which event greater procedural guarantees ought to be
afforded to a party);
2.
the
statutory scheme applicable to the tribunal;
3.
the
importance of the decision to the affected parties;
4.
the
legitimate expectations of the parties; and
5.
the
procedural choices made by the tribunal, especially where the choice of
procedure is left to the tribunal by statute.
Application of these factors to the
PSLRB results in the conclusion that the Board must observe a high degree of
procedural fairness. In terms of the first, fourth and fifth criteria, as
noted, the process typically followed by the PSLRB is a highly structured one,
akin to the process followed by a court. The legitimate expectations of the
parties before the PSLRB, therefore, lead them to anticipate that their issues
will not be determined without the opportunity to file evidence and make
submissions. Indeed, the procedural choices made by the Board, of typically
holding hearings, give rise to these expectations. The statutory scheme
likewise indicates that the Board should be held to a high degree of procedural
fairness; the PSLRA creates a comprehensive scheme for final determination of
adjudicable workplace disputes of federal public servants, and provides the PSLRB
primary (and often exclusive) jurisdiction to determine such disputes to the
exclusion of the courts (Vaughan v Canada, 2005 SCC 11 at paras 33-41,
[2005] 1 S.C.R. 146). Finally, grievances such as the present concerning the
application of provisions of collective agreements may well have application across
the entire federal public service and, therefore, decisions made in respect of
them may well have wide-ranging impacts, extending beyond the grievors in a
particular case (Ryan v Canada (Attorney General), 2005 FC 65, [2005]
FCJ No 110).
[15]
While
the PSLRB is bound to give parties a high degree of procedural fairness, this
case turns less on this conclusion than on the significance of the breach
committed by the adjudicator in failing to provide the applicant with the right
to be heard on the merits of the grievances. Indeed, it is axiomatic that a
tribunal cannot dispose of a key point without affording the parties the right
to be heard in respect of it. In Université du Québec à Trois-Rivières v
Larocque, [1993] 1 S.C.R. 471, [1993] SCJ No 23 [Larocque], the Supreme
Court of Canada set aside a decision of a labour arbitrator who had refused to
hear the employer's evidence concerning the employer’s reason for terminating
the grievors’ employment, which related to a lack of funds resulting from the
poor quality of the work done by the grievors. The Supreme Court of Canada,
relying in part on the audi alterem partem principle, held that the
refusal to hear the evidence in question impacted the fairness of the decision,
due to the key nature of the evidence. Former Chief Justice Lamer, writing for
the majority of the Court, stated at p 491 [citing to SCR]:
[…] I am not prepared to say that the rejection of
relevant evidence is automatically a breach of natural justice. The grievance
arbitrator is in a privileged position to assess the relevance of evidence
presented to him and I do not think it desirable for the courts, under the
guise of protecting the rights of the parties to be heard, to substitute their
own assessment of the evidence for that of the grievance arbitrator. It may
happen, however, that the rejection of relevant evidence has such an impact on
the fairness of the proceeding, leading unavoidably to the conclusion that
there has been a breach of natural justice.
[16]
To
somewhat similar effect, in Gale v Canada (Treasury Board) 2004 FCA 13,
[2004] FCJ No 186 [Gale], the Federal Court of Appeal set aside a
decision of an adjudicator who rendered a decision prior to receiving evidence
that he had requested. The Federal Court of Appeal found that the adjudicator’s
failure to consider the requested evidence amounted to a breach of procedural
fairness because:
[…] the Adjudicator established a procedure in
respect of the receipt of certain evidence and then departed from that
procedure without notice. The appellant was entitled to expect that the
Adjudicator would not make his decision without the evidence that he, himself,
had said was of interest which he gave the parties an opportunity to produce
(at para 14).
[17]
The
applicant argues that in light of the PSLRB's typical practice, the nature of
the discussions that took place during the telephone conference calls and the
content of the Board's November 12, 2010 letter, it was perfectly reasonable
for the employer to conclude that all that was to be decided by Adjudicator
Pineau was the applicability of the Lavigne precedent to the Timson
matters, as a matter of principle, and that this issue would involve
consideration only of the extent to which Lavigne might be applicable
under the new collective agreement. This, in turn, necessitated arguments like
those made by the parties in their written submissions which were directed only
to the differences in the collective agreement language between the two
collective agreements and the binding effect of arbitral awards in the labour
relations context. According to the applicant, there was no way for it to have
anticipated that the Adjudicator would have determined the merits of the
grievances and, accordingly, the employer did not seek to file evidence or make
submissions relevant to the merits. As noted, these submissions and evidence
would have addressed three issues: first, the differences in the training given
by the grievors as compared to that involved in Lavigne (and the
implications of the differences in light of the relevant job descriptions);
second, the temporal limits on damages (which are limited to work done within
the 25 days preceding the date the grievance was filed under clause 20.10 of
the 2006 collective agreement); and, finally, the fact that many of the
grievors did not work eight consecutive hours (which the employer submits is a
condition precedent to payment under clause 49.07 of the collective agreement).
[18]
The
CSN, for its part, argues in effect that that the employer “had its chance” and
should have raised its three arguments on the merits in its written
submissions. The union asserts that it should have been apparent to the
employer that Adjudicator Pineau was going to decide the grievances on the
merits. The CSN also submits that the employer’s argument regarding the
temporal limits on the recoverability of damages is really an objection as to
arbitrability, which ought to have been made much earlier, either during the
grievance procedure or when the grievance was referred to adjudication, in
accordance with the requirements of section 95 of the Public Service Labour
Relations Board Regulations, SOR/2005-79 [Regulations]. It finally argues
that the doctrine of issue estoppel was applicable and ought to have prevented
the employer from seeking to make the arguments it asserts it was denied the
opportunity to raise.
[19]
The
arguments regarding section 95 of the Regulations and issue estoppel are
without merit and may be disposed of quickly.
[20]
Insofar
as concerns the 25 day time limit, the employer is not asserting that the
grievances are inarbitrable due to being filed outside the mandatory time
limit, as they are of a continuing nature; rather, the employer’s argument is
to the effect that damages are temporarily limited to the 25 day period, and
that the Adjudicator erroneously awarded damages outside that time period for many
of the grievors in allowing the grievances in their entirety. In this regard,
it is well-settled that in the face of a mandatory time limit, like that
contained in section 95 of the Regulations, damages in a continuing grievance
will be limited to the time period in respect of which the grievance may be
filed. Donald J.M. Brown and David M. Beatty, in their leading text on labour
arbitration, Canadian Labour Arbitration, 4th ed (Toronto: Canada Law
Book, 2011) at section 2:1418, write as follows on this point: “Generally,
where the claim for damages relates to a breach that has continued for some
time, recovery can only be made retroactively for the period of time permitted
for filing the grievance.” Arguments on the temporal limitation of damages need
not be raised in a preliminary fashion during the grievance process. Thus, the
CSN’s argument on this point fails because section 95 of the Regulations
applies to objections to arbitrability and not to the extent of damages that
may be awarded in a continuing grievance.
[21]
The
union’s argument on issue estoppel also fails. A necessary condition for the application
of the doctrine of issue estoppel is that that the issues in the two cases be
the same (see e.g. Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 at
para 25, [2001] 2 S.C.R. 460). The doctrine of issue estoppel is clearly
inapplicable here as the employer asserts that the Timson matters are
distinguishable from those decided in Lavigne and, thus, the issues in
the two cases are not the same.
[22]
In
terms of whether the PSLRB breached the rules of procedural fairness in
deciding the 42 grievances on their merits following receipt of the parties’
written submissions, it is my view that the Adjudicator failed to provide the
parties with an opportunity to call evidence and make submissions on key points
in the grievances and, accordingly, that she violated the principles of
procedural fairness. While it is incontrovertible that the PSLRB adjudicators
possesses authority under the PSLRA to decide matters, including grievances,
without holding an oral hearing, in the circumstances of this case, the
employer had a legitimate expectation that it would be afforded the right to
file evidence and make submissions on the merits of the grievance. In this
regard, its position was not unlike that of the applicants in the Gale and
Larocque cases, cited above.
[23]
In
light of the Board’s typical practice, the content of the parties’ discussions
with Adjudicator Pineau and, most especially, the terms of the Board’s November
12, 2010 letter, there was no basis upon which the employer could have
reasonably concluded that the Board might decide the grievances on the merits,
following receipt of the written submissions. Nowhere was this made clear by
Ms. Pineau, and, indeed, the tenor of the discussions indicated precisely the
opposite. Likewise, so did the November 12th letter, which requested
written submissions only on “the applicability of the Lavigne decision”.
The letter, moreover, went on to indicate that the “relevance of the Lavigne
decision may be decided on the basis of written submissions” and “if not an
oral hearing will be convened to deal with the issues” (meaning the issues
associated with the applicability of the Lavigne precedent as a matter
of principle). There was simply no indication that the Board intended to or
even reserved the possibility of deciding the grievances on their merits,
without further submissions from the parties. Thus, the employer was not put on
notice that it ought to have sought to file its evidence or to make submissions
on the merits of the grievances. It reasonably assumed it would have the
opportunity to do so following the Board’s preliminary ruling on the
applicability of Lavigne as a matter of principle.
[24]
Indeed,
the reasonableness of the way in which the employer interpreted what was to
occur is borne out by the union’s own conduct, which mirrored that of the
employer in that the CSN, like the employer, confined its written submissions
to the issue of the applicability of the Lavigne decision as a matter of
principle and did not address the individual circumstances in any of the 42
grievances other than to argue that Mr. Timson’s experience was directly
captured by the Lavigne decision.
[25]
This
case is distinguishable from Boshra v Canadian Association of Professional Employees,
2011 FCA 98, [2011] FCJ No 411 [Boshra], cited by the CSN. There, unlike
here, the Board clearly put parties on notice that it intended to render a
decision on the merits based on the parties’ written submissions (see Boshra
at para 11). Here, on the other hand, the Board failed to provide any such
indication to the parties, and, indeed, led the parties to believe that the
grievances would not be decided without the usual opportunity to call evidence
and make submissions on the merits.
Conclusion
[26]
Accordingly,
the Board denied the employer procedural fairness in these grievances in
deciding them on their merits without allowing the employer the opportunity to
call evidence or make submissions on the merits of the grievances. The decision
of Adjudicator Pineau will therefore be set aside and the grievances will be
remitted to the PSLRB for re-determination, by another adjudicator. In my view,
the entire decision must be set aside because it is impossible to separate the portions
of the decision dealing with the effect of Lavigne as a matter of
principle from the rest of the decision disposing of the grievances on their
merits.
[27]
During
the hearing, the parties agreed that costs should be awarded to the successful
party in the amount of $2500.00. In light of the issues involved, this amount
is reasonable and, accordingly, the applicant is entitled to its costs in the
all-inclusive amount of $2500.00.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. This
application for judicial review is granted and the decision of Adjudicator
Pineau of the PSLRB, dated February 1, 2011 is set aside;
2. The
42 grievances are remitted back to the PSLRB for re-determination by a
different adjudicator; and
3. The
applicant is awarded costs in the all-inclusive amount of $2500.00.
"Mary J.L. Gleason"
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