REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
These
Reasons for Judgment and Judgment respond to two applications for judicial
review (Court File No. T-1842-07 and T-1831-07) involving a group of Heating
Plant Operators (the Employees) employed in a section of Public Works and Government
Services Canada (the Employer). Until 2002, the Employees had been working
12-hour shifts on a rotating 12-week schedule (10 of the Employees) or a
consistent schedule of 8-hour daytime shifts (1 of the Employees), which
arrangements had been put in place through mutual agreement of the Employees
and Employer.
[2]
On
October 28, 2002, the Employer unilaterally implemented a new 5-week schedule
that required all of the Employees to work a mix of 8-hour and 12-hour shifts.
This schedule change led to a grievance and three decisions by an adjudicator
of the Public Service Labour Relations Board (PLSRB) (the Adjudicator).
[3]
In
his first decision, dated July 4, 2005, the Adjudicator concluded that, by
unilaterally imposing the new schedule, the Employer had breached the
collective agreement between the Employees’ bargaining unit and the Employer.
The Employer did not seek judicial review of this decision and now accepts that
there was a breach.
[4]
In
a second decision, dated February 28, 2007, the Adjudicator addressed the
question of damages. Still unable to agree on the appropriate damages for the
breach of the collective agreement, the parties asked the Adjudicator to
provide an explicit methodology for calculating the damages, which the
Adjudicator did in his third decision, dated September 20, 2007.
[5]
In
his third decision, the Adjudicator reached a decision on a number of
outstanding issues, three of which are the subject of these judicial reviews.
1.
the
Adjudicator awarded an overtime premium for all hours worked outside of those
the Employer had authority to schedule (that is, for hours that would not have
fallen within the previous schedule). The Employer seeks to overturn this
aspect of the award.
2.
the
Adjudicator refused
to award any amounts for (a) statutory holiday premiums and (b) transportation
expenses related to the hours worked outside the authorized hours. The
Employees seek to overturn these two conclusions.
II. Issues
[6]
The
issues raised by these applications are as follows:
1.
Did
the Adjudicator err by concluding that the Employees should receive, as
damages, compensation for hours worked outside those in the previous schedule?
As sub-issues:
(a)
Did
the Adjudicator render a decision the effect of which would be to require the
amendment of the collective agreement, contrary to s. 96(2) of the Public
Service Staff Relations Act, R.S., 1985, c. P-35 (PSSRA) (repealed March 31,
2005, but still applicable to this dispute); and
(b)
Was
the award, in effect, an award of punitive damages and thus outside the mandate
of the Adjudicator?
2.
Assuming
that the Adjudicator did not err in awarding “overtime” hours to the Employees,
did he err when he declined to also order payment of amounts for: (a) travel;
and (b) designated holiday pay?
III. Analysis
A. Standard of Review
[7]
As
required, the first step in the analysis is to determine the proper standard of
review of the Adjudicator’s decision.
[8]
The
issues before the Court all relate to the interpretation and application of the
collective agreement and the Adjudicator’s regard for the material before him.
Past jurisprudence shows that deference is owed to adjudicators on these issues
(Public Service Alliance of Canada v. Canada (Food Inspection Agency), 2005 FCA 366, 343 N.R. 334 at para. 18, Currie
v. Canada (Customs and Revenue Agency), 2005 FC 733,
36 Admin L.R. (4th) 138 at paras. 11-15 (this case was reversed by
the FCA in Currie v. Canada (Customs and Revenue
Agency), 2006 FCA 194, [2007] 1 F.C.R. 471, although
the FCA accepted the lower court’s standard of review analysis at para. 20).
[9]
Although the Employees suggest that the present
case may deal with a question of mandate requiring review on a correctness
standard, I do not see the issue as a true question of jurisdiction. The
Supreme Court, in Dunsmuir v. New Brunswick, 2008 SCC 9,
defined such questions at paragraph 59, as those “where the tribunal must
explicitly determine whether its statutory grant of power gives it the
authority to decide a particular matter.” In the present case, the Adjudicator
interpreted, applied and determined a remedy flowing from the breach of a
collective agreement. This is not a true jurisdictional question. The standard
of review is reasonableness.
[10]
Thus,
the task of the Court is to determine “whether the decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir, above, at para. 47).
B. Did the Adjudicator
err by concluding that the Employees should be compensated, as damages, for
hours worked outside those in the previous schedule?
[11]
In
submissions to the Adjudicator, the Employer argued that the calculation of
damages should be done by comparing the total hours worked between the
authorized or previous schedule and the unauthorized schedule. Using this
method of calculation, the Employees suffered little loss.
The Adjudicator rejected this argument. The
critical portions of his reasons for doing so are as follows:
[9] In my decision of February 28,
2007, I concluded that damages were to be awarded based on the difference in
overtime and other applicable premiums between the improperly imposed shift
schedule and the schedule that the grievors were working prior to the breach of
the collective agreement. Damages were to be calculated for the period from
October 28, 2002 to July 5, 2005 (para. 47 of that decision).
[10] In that decision, I came to the
following conclusion on the methodology to be used for calculating the damages.
[42] …To calculate the damages, the
parties will have to lay the 12-hour/12-week shift schedule that the grievors
would have worked on top of the 12-hour/5-week shift schedule the grievors did
work…
[11] Calculating damages is
necessarily speculative since it is impossible to come to any definitive
conclusions on what might have happened if the collective agreement has been
respected. I addressed the speculative nature of determining the damages in my
February 28, 2007 decision. I was clear in that decision that it would be
necessary to compare the two schedules by laying one over the other...The
employer’s position that the grievors should only be compensated for the
difference in total hours worked is not in accord with this methodology. If
that were the only consequence of an improper change in variable hours of work,
there would be little cost to the employer in breaching the collective
agreement. The result of the improperly imposed schedule was that the grievors
worked on days they would not have worked under the previous schedule. That
represents a loss suffered by the grievors for which they should be
compensated.
[12]
The
term “overtime” is defined in the applicable collective agreement as
“authorized work in excess of the employee’s scheduled hours of work”.
[13]
The
thrust of the Employer’s argument is that the definition of overtime in the
collective agreement only allows for the payment of overtime when the hours
worked are additional to normal hours. In this case, the total number of hours
worked by the Employees under the imposed schedule was not any different from
the total number of hours worked in the previous schedule. The assertion is
that the collective agreement provides for overtime only with respect to work
done in excess of the employee’s normal scheduled hours of work;
overtime is not available for work done outside of an employee’s
scheduled hours of work. Thus, the Employer submits, the Adjudicator awarded a
remedy that required, in effect, an amendment to the collective agreement
contrary to s. 96(2) of the PSSRA. In doing so, it is argued, the Adjudicator
exceeded his jurisdiction (Canada (A.G.) v. Hester, [1997] 2 F.C. 706
(T.D.), Canada (A.G.) v. Lussier, [1993] F.C.J. No. 64 (F.C.A.) (QL)).
[14]
I
first note that this complex question of whether work done outside of the
normal scheduled hours could meet the definition of overtime provided for in
the collective agreement was not made to the Adjudicator. Had such an argument
been made, I am confident that the Adjudicator would have directly dealt with
it. On this basis alone, this argument could be rejected. However, the argument
can also be dismissed on its merits.
[15]
It
is evident from the Adjudicator’s reasons that he interpreted the term
“overtime” to include hours worked outside of usual hours. The question before
me is whether that interpretation of “in excess of” falls “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.” (Dunsmuir, above, at para. 47). Given that labour adjudicators
have substantial expertise with respect to interpretation of collective
agreements, I find that this particular Adjudicator’s interpretation was
reasonable. As was pointed out by the Employees, arbitrators have found in past
cases that the words “in excess of” could apply to hours that fell outside the
hours an employee normally worked (See Int’l Mine Workers, Local 902, and
Loblaw Groceterias Co. Ltd. (1963), 14 L.A.C. 53 (Little), Re
Printing Specialties & Paper Products Union, Local 466, and Interchem
Canada Ltd. (1969), 21 L.A.C. 46 (Weatherill)). It was open to the
Adjudicator to adopt this interpretation over the Employer’s methodology of
examining only differences in total number of hours worked.
[16]
The
Employer also submits that the Adjudicator erred by ordering a remedy that was
punitive in nature without any evidence to support that such a remedy was
warranted (Hester, above, Lussier, above). The Employer points to
the Adjudicator’s reasons, wherein he rejects the Applicant’s damages
calculation on the basis that “if that were the only consequence of an improper
change in variable hours of work, there would be little cost to the employer in
breaching the collective agreement.”
[17]
I
do not agree with the Employer’s characterization of the award. The words
isolated by the Employer must be read in the entire context. In the decision in
question, the Adjudicator plainly stated that the Employees suffered a loss by
having to work on days they would not have worked but for the improperly
imposed schedule. It was within the Adjudicator’s discretion to come to this
conclusion. The consequential remedial relief granted to the Employees was also
within the Adjudicator’s broad discretionary powers and within a range of
reasonable outcomes.
[18]
I
would also note that we are dealing here with a breach of contract, the damages
for which seek to put the plaintiff in the position they would have been in if
the breach had not occurred. Just as the Adjudicator stated in his decision,
this is necessarily speculative. Furthermore, damages for breach of contract
must be contrasted with damages for tort, which attempts to compensate the
plaintiff for actual loss suffered. Arguably, it would be unreasonable in a
case such as this to confine the Adjudicator to award damages springing solely
from the proof of real loss suffered by the Employees.
C. Did the Adjudicator err by
failing to award transportation expenses?
[19]
In
their submissions to the Adjudicator, the Employees submitted that they would
be entitled to a mileage allowance for those days that they worked under the
new schedule that would have been a day of rest under the previous schedule.
The Adjudicator declined to make such an award, stating that:
The intent of this provision [clause
29.10 of the collective agreement] is to compensate employees for
transportation expenses on a day of rest. In this case, the grievors were
receiving days of rest – just not necessarily the day of rest they would have
received under the previous schedule. There was no evidence of additional
transportation expenses incurred as a result of the improper schedule.
Accordingly, I find that the grievors are not entitled to claim transportation
expenses.
[20]
Clause
29.10 of the collective agreement provides that:
Where an employee is required to report
to work overtime on a day of rest or to work overtime which is not contiguous
to the employee’s scheduled hours of work, and reports, and is required to use
transportation other than normal public transportation services, the employee
shall be reimbursed for reasonable expenses.
[21]
The
Employees submit that the Adjudicator’s decision on compensation for travel
allowances is unreasonable. The Adjudicator had accepted that all hours worked
under the wrongfully-imposed 5 week schedule constituted overtime within the
meaning of the collective agreement. He had also accepted that the Applicants
were required to travel on days of rest in order to work the shifts that were
wrongfully imposed upon them. It follows, the Employees argue, that they should
be compensated for the travel expenses they incurred while working these
overtime hours.
[22]
I
accept that the Employees’ position with respect to travel has some logic.
However, this does not necessarily mean that the Adjudicator’s position on this
issue is unreasonable. It must be remembered that the Adjudicator was using the
concept of overtime as a methodology for calculating damages. As noted by the
Adjudicator, “calculating damages is necessarily speculative since it is
impossible to come to any definitive conclusions on what might have happened if
the collective agreement has been respected.” In coming to a fair assessment of
damages, the Adjudicator acted reasonably by referencing the collective
agreement without necessarily adhering to each and every clause.
[23]
Further,
under clause 29.10, transportation expenses for overtime hours were payable to
an employee only where: (a) the work is not contiguous to the employee’s
scheduled hours; and, (b) the employee is required to travel to work other than
by normal public transportation. Contiguous, according to the Webster’s
dictionary means “next or near in time or sequence.” The Employees did not
establish that they were required to work overtime that was not “next or near
in time” to their normal scheduled hours of work. Nor was there evidence that
they were required to use transportation other than normal public transportation.
[24]
In
the context of an award of damages and in the absence of evidence of expenses
beyond those that would have been incurred under the previous schedule, it was
not unreasonable for the Adjudicator to decline to award transportation
expenses.
D. Did the Adjudicator err by
failing to award statutory premiums?
[25]
Under
the collective agreement, a holiday that coincides with an employee’s day of
rest is moved to the next working day. The result is that the employee will
work the deemed holiday and attract premium pay. In their submissions to the
Adjudicator, the Employees also argued that a statutory holiday premium may be
payable as part of the damages. The Adjudicator rejected this submission,
stating the following:
The grievors have not demonstrated that
there are any statutory holiday premiums owing. Any difference in statutory
holiday premiums between the two schedules would be the result of the grievors
not working on a statutory holiday. Accordingly, I see no reason to compensate
grievors at the premium rate for those hours.
[26]
Once
again, I can see no reviewable error in this reasoning or conclusion. In this
case, while the Employees may have been denied an opportunity for premium pay,
it was not unreasonable for the Adjudicator to exclude the possibility of
statutory premiums in this exercise of establishing a fair assessment.
IV. Conclusion
[27]
In
sum, I conclude that the Court’s intervention is not warranted in either of
these judicial reviews. They will both be dismissed.
[28]
I
turn to the question of costs. The Employer was successful in Court File No.
T-1831-07 and the Employees were successful in Court File No. T-1842-07. At
first blush, the application of the Employer (Court File No. T-1842-07) appears
to be much more complex and substantial than that of the Employees, thereby
warranting a greater award of costs to the Employees. However, I observe that
the underlying decision of the Adjudicator and the background to each
application is identical. Thus, if only Court File No. T-1831-07 had proceeded,
substantially the same amount of preparation would have been required.
Accordingly, I will exercise my discretion and decline to award costs to either
party.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application for judicial review in Court File No. T-1831-07 is dismissed;
2.
The
application for judicial review in Court File No. T-1842-07 is dismissed; and
3.
No
costs are awarded in either application.
“Judith
A. Snider”
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