Date: 20070605
Docket: T-1062-06
Citation:
2007 FC 570
Ottawa, Ontario, the 5th day of June 2007
PRESENT:
THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
TREASURY BOARD
(SOLICITOR GENERAL OF CANADA –
CORRECTIONAL SERVICE OF CANADA)
Applicant
and
ROBERT HUPPÉE, PAUL MAILLOUX
and PIERRE MAUGER
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for a judicial review under section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7, of a decision dated May 26, 2006, by
Sylvie Matteau, Adjudicator (the adjudicator), pursuant to section 92 of the
former Public Service Staff Relations Act, R.S.C. 1985, c. P-35
(the PSSR Act). The adjudicator allowed the respondents’ grievances and ordered
the applicant to pay them the monthly allowance provided for in clause 6.01 of
Appendix C of the collective agreement between the Treasury Board of Canada and
the Public Service Alliance of Canada for the Operational Services Group.
I. ISSUE
[2]
Is
the adjudicator’s decision reasonable?
[3]
For
the following reasons, the answer to this question is yes. Consequently, this
application for judicial review will be dismissed.
II. FACTUAL
CONTEXT
[4]
Grievances
were filed by three employees of the Correctional Service of Canada (CSC) at
Leclerc Institution in Laval, Quebec. As handler/drivers, they are required to
transport dangerous goods.
[5]
At
the employer’s request, the respondents participated in the training on the
transportation of dangerous goods offered by Transport Canada, and have a valid
training certificate pursuant to the Transportation of Dangerous Goods Act
of 1992, S.C., c. 34 (the Act).
[6]
On
August 4, 2003, the respondents informed their immediate supervisor that they
had been certified to ship dangerous goods and requested payment of the monthly
allowance provided for in clause 6.01.
[7]
On
August 6, 2003, the respondents were informed by their immediate supervisor
that they were not entitled to the monthly allowance because they had no
responsibility for the packaging and labelling of dangerous goods.
[8]
The
respondents filed grievances against this decision on August 11, 2003, and on
September 2, 2003, in the case of respondent Pierre Mauger. All of the
grievances were dismissed at each of the three levels on the grounds that the
respondents had no responsibility for the packaging and labelling of dangerous
goods for shipping.
[9]
On
March 16, 2005, the three grievances were referred to adjudication before the
Public Service Staff Relations Board (PSSRB), which allowed the grievances. It
is this decision which is the subject of this application for judicial review.
III. IMPUGNED DECISION
[10]
In
her decision, the adjudicator determined that two conditions are necessary for
the allowance to be paid:
(a) certification
pursuant to the Act; and
(b) being
assigned responsibility for packaging and labelling dangerous goods for
shipping in accordance with the Act.
[11]
Only
the second condition is in dispute. Since clause 6.01 of Appendix C of the
collective agreement is clear, the adjudicator limited herself to determining
whether the allowance was to be paid in the specific circumstances of these
grievances. On the basis of the evidence adduced, the adjudicator came to the
conclusion that the respondents were handling and shipping dangerous goods
within the meaning of the Act, such as corrosive, explosive or infectious
substances.
[12]
In
addition, the adjudicator noted that the employer had acknowledged in the work
description for handler/drivers that their primary activities consisted in
[TRANSLATION] “packaging, preparing and completing documents relating to the
items, for storage or shipping to users”. The employer acknowledged that
employees like the respondents are required to [TRANSLATION] “handle chemicals
and dangerous goods”. They must also have knowledge of the regulations pertaining
to dangerous goods in order to handle them with care.
[13]
The
adjudicator made reference to the Transportation of Dangerous Goods
Regulations, SOR/2001-286 (Regulations) and determined that the
respondents were required to label the goods for the purposes of transportation
pursuant to the Act.
[14]
Referring
to the evidence adduced, the adjudicator found that the respondents were
already performing these duties before they received their certificate and
that, consequently, they were entitled to payment of the allowance referred to
in clause 6.01, since they held the certificate in question and the employer
assigned to them responsibility for the packaging and labelling of dangerous
goods for shipping, pursuant to the Act.
[15]
In
allowing the grievances, the adjudicator ordered the employer to pay the
allowance to the respondent Mr. Mailloux for the period from June 18, 2003, to
February 26, 2005, the date of his retirement. Payment of the allowance was
also ordered for the two other respondents retroactively to June 18, 2003.
IV. RELEVANT
LEGISLATIVE PROVISIONS
[16]
Clause
6.01 of Appendix C of the collective agreement reads as follows:
|
An
employee certified pursuant to the Transportation of Dangerous Goods Act
and who is assigned the responsibility for packaging and labelling of
Dangerous Goods for shipping in accordance with the Act shall receive a
monthly allowance of seventy–five dollars ($75) in a month where the employee
maintains such certification.
|
Un
employé certifié aux termes de la Loi sur le transport des marchandises
dangereuses à qui est confiée la responsabilité d’emballer et d’étiqueter
des marchandises dangereuses pour le transport conformément à la Loi, doit
recevoir une indemnité mensuelle de soixante-quinze dollars (75$) pour chaque
mois au cours duquel il ou elle conserve cette certification.
|
[17]
Section
2 of the Regulations provides the following definition of “handling”:
|
“handling”
«
manutention » “handling”
means loading, unloading, packing or unpacking dangerous goods in a means of
containment for the purposes of, in the course of or following transportation
and includes storing them in the course of transportation;
|
«
manutention
»
“
handling ” « manutention » Toute opération de chargement, de déchargement,
d’emballage ou de déballage de marchandises dangereuses effectuée en vue de
leur transport, au cours de celui-ci ou par après. Les opérations
d’entreposage effectuées au cours du transport sont incluses dans la présente
définition.
|
V. ANALYSIS
Is the tribunal’s decision reasonable?
Standard of review
[18]
The
standard of review that applies to this case must first be determined. The four
factors set out in Dr. Q v. College of Physicians and Surgeons of
British Columbia, [2003] 1 S.C.R. 226 are analyzed in order to determine
the standard that must be used by the Court in similar situations.
(i) Privative
clause/right of appeal
[19]
The
Act does not contain a privative clause or a right of appeal. This factor is
therefore neutral.
(ii) The
expertise of the tribunal
[20]
A
grievance adjudicator has expertise in federal public service labour law. As
the respondents point out, this is an exclusive jurisdiction. In this case, the
adjudicator’s role was not to interpret clause 6.01, since it is clear and
unequivocal. Instead, the adjudicator’s task was to apply clause 6.01 to the
circumstances (the facts) giving rise to the grievances and to determine
whether the allowance was to be paid. This task requires a certain competence
in adjudicating grievances and a specialization in the analysis of employment
contracts and prescribed standards. This factor therefore calls for a
significant amount of curial deference.
(iii) The
purpose of the legislation
[21]
The
purpose of clause 6.01 is to recognize the responsibility of employees
regarding the risks in handling hazardous goods and substances. The allowance
in question is therefore intended to compensate these employees by means of a
monthly payment. In this context, the adjudicator must determine whether the
conditions have been met for the allowance to be paid. This factor calls for
less deference.
(iv) The
nature of the question
[22]
This
is a question of mixed fact and law, and not a question of law alone, as the
applicant claims. Nor is it a purely factual question, as suggested by the
respondents. The adjudicator must consider or determine, on the basis of the
facts, whether the conditions have been met for the allowance to be paid. To do
so, she must verify whether there is legislation that may apply to the
collective agreement and if it applies to the specific circumstances of the
grievances filed. The caselaw supports the position that, in a case of mixed
law and fact, less deference will be shown.
[23]
The
applicant maintains that the Court should adopt two standards of review, that
of correctness for the question of interpreting the Act and the Regulations,
and that of reasonableness simpliciter for the question of applying the
facts to the Regulations (Lévis (City) v. Fraternité des policiers de Lévis
Inc., 2007 SCC 14, [2007] S.C.J. No. 14, at paragraph 19 (QL)).
[24]
However,
the Court believes that, further to a pragmatic and functional analysis, the
appropriate standard of review is reasonableness simpliciter.
[25]
Having
considered all of the evidence before the adjudicator as well as the impugned
decision, the Court is satisfied that the decision is reasonable. After hearing
the testimony, the adjudicator analyzed the work descriptions and the
responsibilities assigned by the employer, and she found that the grievors were
entitled to the allowance in question. According to the evidence, a witness for
the employer acknowledged that the employees shipped bodily substances such as
blood and urine on a daily basis. He also acknowledged that spills were
possible and that products could be damaged when they arrived at the store and
that the employees had to pour them out and label them.
[26]
In
arriving at her conclusion, the adjudicator was not required to interpret the
Act or the Regulations (Reibin v. Canada (Treasury Board), [1996] F.C.J.
No. 794 (F.C. Trial Division) (QL)). She mentioned them in order to
retrieve the definitions and apply them to the work descriptions. This case is
different from Lévis, supra, which basically dealt with conflicts
between the Cities and Towns Act and the Police Act.
[27]
The
Court considers that the adjudicator asked herself the right question when she
stated the following at paragraph 47 of the decision:
I therefore must determine whether or not
the employer assigned responsibility to the grievors for packaging and
labelling dangerous goods. The employer is correct in stating that the clause
of the collective agreement is clear and that I am not required to interpret
it. Rather, my role is to apply this provision to the situation before me and
to determine whether or not this allowance will need to be paid.
[28]
The
applicant also submits that the adjudicator made a reviewable error in that her
decision adversely affects its management powers. The Court does not share this
view. The adjudicator did not in any way take away the employer’s power to
manage its business. The Court does not find unreasonable the following passage
at paragraph 53 of the adjudicator’s decision:
. . . Loading, unloading, packing or
unpacking dangerous goods in a means of containment for the purposes of, in the
course of or following transportation are activities included in the grievors'
duties. Thus, transportation includes handling of the products.
[29]
These
observations are based on and supported by the evidence, both testimonial and
documentary.
[30]
The
Court does not find that there is cause for intervention.
JUDGMENT
THE COURT
ORDERS that:
1.
The
application for judicial review be dismissed. Without costs as agreed between
the parties.
“Michel Beaudry”
Certified true
translation
Susan Deichert, LLB
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