Date: 20090402
Docket: T-1200-08
Citation: 2009 FC 344
Ottawa, Ontario, April 2,
2009
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
CANADIAN
MERCHANT SERVICE GUILD
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application deals with a narrow issue, the scope of section 232 of the Public
Service Labour Relations Act, S.C. 2003, c. 22. The issue arises out of a
Decision and Order of an adjudicator who dealt with a policy grievance raised
by the Canadian Merchant Service Guild as Bargaining Agent against the Treasury
Board (Department of Fishery and Oceans). That Decision is dated July 9, 2008
and may be cited as 2008 PSLRB 52.
[2]
For
the reasons that follow I find that the adjudicator properly exercised the
powers conferred by section 232 of the Act in granting the Order at
issue in a manner consistent with the proper interpretation of that section.
Therefore the application for judicial review of that Decision is dismissed.
[3]
It
is appropriate to start with the Public Service Labour Relations Act,
newly enacted in 2003. That Act provides, in sections 208 and following,
for a number of types of grievances. Those grievances may proceed through
various levels and ultimately may be referred to an adjudicator for final
determination. Those different types of grievances are:
a. Individual
grievance
as provided for in section 208 to 214 of the Act. In general the scope
of such a grievance is defined in section 208(1)(a) and (b):
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208. (1)
Subject to subsections (2) to (7), an employee is entitled to present an
individual grievance if he or she feels aggrieved
(a) by the interpretation or
application, in respect of the employee, of
(i) a provision of a statute or regulation, or of a
direction or other instrument made or issued by the employer, that deals with
terms and conditions of employment, or
(ii) a provision of a collective agreement or an
arbitral award; or
(b) as a result of any
occurrence or matter affecting his or her terms and conditions of employment.
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208. (1) Sous réserve des paragraphes (2) à (7), le fonctionnaire a le
droit de présenter un grief individuel lorsqu’il s’estime lésé :
a) par l’interprétation ou l’application à son égard :
(i) soit de toute disposition d’une
loi ou d’un règlement, ou de toute directive ou de tout autre document de
l’employeur concernant les conditions d’emploi,
(ii) soit de toute disposition
d’une convention collective ou d’une décision arbitrale;
b) par suite de tout fait portant atteinte à ses conditions
d’emploi.
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b. Group
grievance
as provided for in section 215 to 219 of the Act. In general the scope
of such a grievance is defined in section 215(1):
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215. (1)
The bargaining agent for a bargaining unit may present to the employer a
group grievance on behalf of employees in the bargaining unit who feel
aggrieved by the interpretation or application, common in respect of those
employees, of a provision of a collective agreement or an arbitral award.
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215. (1) L’agent négociateur d’une unité de négociation peut présenter
un grief collectif à l’employeur au nom des fonctionnaires de cette unité qui
s’estiment lésés par la même interprétation ou application à leur égard de
toute disposition d’une convention collective ou d’une décision arbitrale.
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c. Policy
grievance
as provided for in sections 220 to 232 of the Act. In general the scope
of such a grievance is defined in section 220(1):
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220. (1)
If the employer and a bargaining agent are bound by an arbitral award or have
entered into a collective agreement, either of them may present a policy
grievance to the other in respect of the interpretation or application of the
collective agreement or arbitral award as it relates to either of them or to
the bargaining unit generally.
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220. (1) Si l’employeur et l’agent négociateur sont liés par une
convention collective ou une décision arbitrale, l’un peut présenter à
l’autre un grief de principe portant sur l’interprétation ou l’application
d’une disposition de la convention ou de la décision relativement à l’un ou
l’autre ou à l’unité de négociation de façon générale.
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[4]
Section
232 of the Act provides limitations as to an adjudicator’s decision
respecting a policy grievance where the matter was or could have been the
subject of an individual grievance or a group grievance. It says:
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232. If a policy grievance relates to a matter that was
or could have been the subject of an individual grievance or a group
grievance, an adjudicator’s decision in respect of the policy grievance is
limited to one or more of the following:
(a)
declaring the correct interpretation, application or administration of a
collective agreement or an arbitral award;
(b)
declaring that the collective agreement or arbitral award has been
contravened; and
(c)
requiring the employer or bargaining agent, as the case may be, to interpret,
apply or administer the collective agreement or arbitral award in a specified
manner.
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232. Dans sa décision sur un grief de principe
qui porte sur une question qui a fait ou aurait pu faire l’objet d’un grief
individuel ou d’un grief collectif, l’arbitre de grief ne peut prendre que
les mesures suivantes :
a) donner
l’interprétation ou l’application exacte de la convention collective ou de la
décision arbitrale;
b)
conclure qu’il a été contrevenu à la convention collective ou à la décision
arbitrale;
c)
enjoindre à l’employeur ou à l’agent négociateur, selon le cas, d’interpréter
ou d’appliquer la convention collective ou la décision arbitrale selon les
modalités qu’il fixe.
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[5]
It
is this provision, section 232, which is presently before this Court for
consideration. I am advised that this section has not previously been the
subject of judicial interpretation.
[6]
The
underlying factual basis of the adjudicator’s Decision is not in dispute. The
Respondent, Canadian Merchant Service Guild, is the certified bargaining agent
for Ship’s Officers employed by the Federal Government for instance on Coast
Guard and Defence vessels. These Officers are required to work up to 12 hours
a day for up to 28 consecutive days. They are paid according to a scheme that
takes into account days designated as “off-duty” or “on-duty” including
provisions as to a “lay-day” bank. The parties are subject to a Collective
Agreement including a Letter of Understanding.
[7]
In
January 2007, the management of the Department of Fisheries unilaterally issued
a “Fleet Circular” which altered the manner in which Officers were to be
compensated for what was termed “familiarization”. The Respondent filed a
Grievance on its own behalf and on behalf of its Officer members. At that
time no particular member or group of members could be identified who would be
subject to the “Fleet Circular” in question but it was expected that at least
some Officers would be subject to the effect that Circular. Included in that
Grievance was a request for a declaration and for retroactive compensation as
follows:
The Guild…hereby requests a
declaration that the Fleet Circular FC-03-2007 is in breach of the Employer’s
obligations under the collective agreement and further requests an Order compensating
any officer affected retroactively.
[8]
The
grievance was denied and the relief sought refused. The Respondent sought adjudication
on the basis of a policy grievance. The adjudicator on July 9, 2008 gave the Decision
presently under review and Ordered:
V. Order
[48] The policy grievance is
allowed.
[49] Fleet Circular FC 03-2007
must be amended by deleting any reference to job familiarization under the
heading Application.
[50] Employees who have been
negatively affected by the application of Fleet Circular FC 03-2007 in the case
of job familiarization must be compensated retroactively.
[51] I will remain seized for
a period of 120 days from the date of this decision to address any matters
relating to its implementation.
[9]
The
Applicant takes no issue with the Order except as to paragraph [50] which
requires retroactive compensation. The Applicant says that section 232 of the Act
restricts the power of an adjudicator in a policy grievance such that
retroactive compensation cannot be granted. I am advised that at no time
during the grievance or adjudication was this point raised. Other than the
Order itself, the adjudicator’s Decision does not address this point.
SCOPE OF REVIEW
[10]
Counsel
for the parties are agreed that the scope of review of the adjudicator’s
decision must be considered in light of the recent decisions of the Supreme
Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1. S.C.R. 190 and Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12. Dunsmuir
states that there are now only two standards of judicial review, reasonableness
and correctness. The standard of correctness applies to a determination of
true questions of jurisdiction. The majority of the Supreme Court in Dunsmuir
wrote at paragraph 59:
59 Administrative bodies must also be
correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires
to distance ourselves from the extended definitions adopted before CUPE. It is important here to take a robust view of
jurisdiction. We neither wish nor intend to return to the
jurisdiction/preliminary question doctrine that plagued the jurisprudence in
this area for many years. "Jurisdiction" is intended in the narrow
sense of whether or not the tribunal had the authority to make the inquiry. In
other words, true jurisdiction questions arise where the tribunal must
explicitly determine whether its statutory grant of power gives it the
authority to decide a particular matter. The tribunal must interpret the grant
of authority correctly or its action will be found to be ultra
vires or to constitute a
wrongful decline of jurisdiction: D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf ed.), at pp. 14-3 to 14-6. An example may be
found in United Taxi Drivers' Fellowship of Southern
Alberta v. Calgary (City), [2004] 1 S.C.R. 485, 2004 SCC 19. In that case, the issue was whether the City
of Calgary was authorized under the relevant municipal acts to enact
bylaws limiting the number of taxi plate licences (para. 5, Bastarache J.).
That case involved the decision-making powers of a municipality and exemplifies
a true question of jurisdiction or vires. These
questions will be narrow. We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as
jurisdictional issues that are doubtfully so.
[11]
This
does not mean that, even in applying a “correctness” standard, the Court should
not take into consideration the manner in which a tribunal has interpreted its
own statutes. Such interpretation can be instructive and accorded deference.
As stated by the majority in Khosa at paragraph 25:
25 I do not share Rothstein J.'s view
that absent statutory direction, explicit or by necessary implication, no deference
is owed to administrative decision makers in matters that relate to their
special role, function and expertise. Dunsmuir
recognized that with or without a privative clause, a measure of deference has
come to be accepted as appropriate where a particular decision had been
allocated to an administrative decision maker rather than to the courts. This
deference extended not only to facts and policy but to a tribunal's
interpretation of its constitutive statute and related enactments because
"there might be multiple valid interpretations of a statutory provision or
answers to a legal dispute and that courts ought not to interfere where the
tribunal's decision is rationally supported" (Dunsmuir,
at para. 41). A policy of deference "recognizes the reality that, in many
instances, those working day to day in the implementation of frequently complex
administrative schemes have or will develop a considerable degree of expertise
or field sensitivity to the imperatives and nuances of the legislative regime"
(Dunsmuir, at para. 49, quoting Professor David J.
Mullan, "Establishing the Standard of Review: The Struggle for
Complexity?" (2004), 17 C.J.A.L.P. 59, at p.
93). Moreover, "[d]eference may also be warranted where an administrative
tribunal has developed particular expertise in the application of a general
common law or civil law rule in relation to a specific statutory context"
(Dunsmuir, at para. 54).
[12]
In
the present case I am satisfied that the appropriate standard of review is that
of correctness since the question is one of interpretation of section 232 of
the Act having regard to the jurisdiction of the adjudicator in making
the Order in question and in particular, paragraph [50] of that Order requiring
retroactive compensation.
INTERPRETING SECTION 232
[13]
Section
232 operates as a limitation to the broader powers of an adjudicator in
considering a policy grievance. I repeat that section:
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232. If a policy
grievance relates to a matter that was or could have been the subject of an
individual grievance or a group grievance, an adjudicator’s decision in
respect of the policy grievance is limited to one or more of the following:
(a) declaring the
correct interpretation, application or administration of a collective
agreement or an arbitral award;
(b) declaring that
the collective agreement or arbitral award has been contravened; and
(c) requiring the
employer or bargaining agent, as the case may be, to interpret, apply or
administer the collective agreement or arbitral award in a specified manner.
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232. Dans sa
décision sur un grief de principe qui porte sur une question qui a fait ou
aurait pu faire l’objet d’un grief individuel ou d’un grief collectif,
l’arbitre de grief ne peut prendre que les mesures suivantes :
a) donner
l’interprétation ou l’application exacte de la convention collective ou de la
décision arbitrale;
b)
conclure qu’il a été contrevenu à la convention collective ou à la décision
arbitrale;
c)
enjoindre à l’employeur ou à l’agent négociateur, selon le cas, d’interpréter
ou d’appliquer la convention collective ou la décision arbitrale selon les
modalités qu’il fixe.
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[14]
This
provision only comes into play if one of two circumstances has occurred:
a. There was
an individual or group grievance already. This is not the circumstance here.
b. There could
have been an individual or group grievance.
[15]
In
considering what is meant by “could have been” an individual or group grievance
one must consider whether, and to what extent, those words are intended to
apply to a situation other than one where, for instance, an individual or group
grievance was threatened or prepared but never actually instituted. Such a
question does not need to be answered here since, on the facts of this case,
the grievance was filed very shortly after the release of the Fleet Circular in
question and at a time when no particular individual or group who could
possibly start a grievance on their own behalf could be identified.
Retroactive compensation was requested as stated at paragraph 3 of the agreed
Statement of Facts as provided to the adjudicator (Applicant’s Record pages 253
and 254) simply on behalf of “any Officer affected retroactively”.
Thus, no individual or group grievance “could have been brought” at the
time that the policy grievance was instituted.
[16]
I
find therefore, on the facts in this case, section 232 of the Act is
inapplicable.
[17]
In
any event, even if section 232 were to apply, I find that the adjudicator had
jurisdiction to award retroactive compensation. Looking at the structure of
section 232 we find that subsections (a) and (b) provide that, even in these
restrictive circumstances, the adjudicator may give a decision “declaring”
that a certain interpretation be given respecting a collective agreement or
award has been contravened. Thus the section is quite clear as to what it
means when it comes to the power to “declare” something.
[18]
Subsection
232 (c) uses a different word, it uses the word “requiring” certain
things to be done. It is clear that something more than a simple declaration
is contemplated. What may be “required” to be done is that an employer
or bargaining agent is to “interpret, apply or administer” the
collective agreement or arbitral award in “a specified manner”. One of
the ways in which the agreement is to be applied and administered is to pay persons
subject to the agreement in accordance with the manner as determined by the
adjudicator.
[19]
The
Applicant’s counsel argues that all an adjudicator can do given the
restrictions of section 232(c) is make a declaration as to the manner in which
payment ought to be made and leave it to the parties, possibly to a subsequent
individual or group grievance, to secure payment if it is not forthcoming.
This would render the process futile and absurd. Why go through a second
process when the matter has already been determined. The words “requiring
the employer to…apply and administer the collective agreement” are
sufficiently broad so as to contemplate an Order for retroactive payment.
[20]
In
this regard, I refer to the excellent analysis by the late Catzman J.A. in
giving the Reasons of the Ontario Court of Appeal in Public Service Alliance
of Canada v. NavCan (2002), 59 O.R. (3d) 284.
[21]
At
paragraphs 27 to 35 he reviewed the progress of the law, particularly at the
Supreme Court of Canada level, from affording only a narrow approach to
judicial interpretation of statutes respecting arbitral powers in labour
matters to one of giving judicial deference to the arbitration process. He
said at paragraph 33:
[33] In subsequent
cases, the Supreme Court continued to recognize expanded powers of labour
arbitrators. St. Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian
Paperworkers Union, Local 219, [1986] 1 S.C.R. 704, 28 D.L.R. (4th) 1, held that courts have no jurisdiction
to entertain damage claims for breach of rights under collective agreements and
that such jurisdiction resides exclusively with the arbitrator. Writing for the
court, Estey J. recognized that Canadian labour law had moved toward
recognizing broad arbitral powers and that "[w]hat is left is an attitude
of judicial deference to the arbitration process" (p. 721 S.C.R.).
[22]
The
same line of thinking should apply here. It would be absurd, given the
language of section 232(c), to hold that a person or group of persons who have
been successful in obtaining an interpretation of an agreement that would
afford them retroactive payments should possibly have to engage in a second
grievance to obtain those payments. I refer to Professor Sullivan where she
says in her book “Construction of Statutes ”, 5th ed.,
LexisNexis, at pages 300-301:
Propositions comprising
consequential analysis. The modern understanding of the “golden rule” or the
presumption against absurdity includes the following propositions.
(1)
It
is presumed that the legislature does not intend its legislation to have absurd
consequences.
(2)
Absurd
consequences are not limited to logical contradictions or internal incoherence
but include violations of established legal norms such as rule of law; they
also include violations of widely accepted standards of justice and reasonableness.
(3)
Whenever
possible, an interpretation that leads to absurd consequences is rejected in
favour of one that avoids absurdity.
(4)
The
more compelling the absurdity, the greater the departure from ordinary meaning
that is tolerated.
[23]
To
hold that section 232(c) of the Act precludes a retroactive award of
compensation would be an absurd result.
CONCLUSION AND COSTS
[24]
In
the result, therefore, I will dismiss the application to quash the
adjudicator’s Decision and Order.
[25]
The
Respondent was successful and is entitled to costs. Having regard to my
discussion with counsel at the hearing, I fix those costs at $2,500.00.
JUDGMENT
FOR THE REASONS GIVEN:
THIS COURT ADJUDGES that:
1. The
application is dismissed;
2. The
Respondent is awarded costs fixed at the sum of $2,500.00
"Roger
T. Hughes"
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