Date:
20130722
Docket:
T-136-12
Citation:
2013 FC 806
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Vancouver,
British Columbia, July 22, 2013
PRESENT: The Honourable
Mr. Justice Martineau
BETWEEN:
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ASSOCIATION OF JUSTICE
COUNSEL
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Applicant
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and
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ATTORNEY GENERAL OF
CANADA
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application to review the lawfulness of a decision rendered by Michèle A.
Pineau (adjudicator), who, pursuant to paragraph 223(2)(d) of the Public
Service Labour Relations Act, SC 2003, c 22 (PSLRA), was designated by the Chairperson
of the Public Service Labour Relations Board (Board) to hear the applicant’s
grievance. The grievance was dismissed. Hence, this application for judicial
review.
[2]
The
applicant, the Association of Justice Counsel (the Association) is the
exclusive bargaining agent for a group of legal officers (the bargaining unit) working
for the Department of Justice (the employer). The Treasury Board represents the
employer with regard to the determination of terms and conditions of employment
and may enter into any collective agreement binding Her Majesty the Queen in
Right of Canada. The Treasury Board and the employer are represented in this
application for judicial review by the Attorney General of Canada (respondent).
ASSOCIATION’S
POLICY GRIEVANCE
[3]
The
facts giving rise to this litigation are not in dispute and arise out of the
filing, on May 18, 2010, of a policy grievance (Association’s grievance) challenging
the reasonableness, and legality, of the changes made by the employer, in March
2010, to its policy on standby duty in immigration.
[4]
The
working conditions of legal officer s in the bargaining unit were initially set
by an arbitral award rendered on October 23, 2009, in lieu of a collective
agreement. The collective agreement came into effect on November 7, 2009, subject
to certain other provisions which only became effective on February 20, 2010. However,
the arbitral award of October 23, 2009, does not specifically deal with standby
duty in immigration such that the issue falls under the exercise of the employer’s
management rights.
[5]
A
legal officer must be available to respond to stay applications and urgent opinion
requests outside working hours. In the case of legal officers with
the Immigration Law Directorate in the Quebec Regional Office, which
has approximately fifty legal officers, the two elements of the former policy
on standby duty at issue here are found in an e-mail dated February 8, 2007,
from Michel Synnott: (1) a lawyer on standby duty will be compensated in the
form of two-and-half days’ discretionary time off; and (2) as long as there are
enough volunteers, standby duty will not mandatory (former policy). The changes
made by the employer in March 2010 to the former policy, which the Association
challenges in its grievance, are that standby duty is now mandatory for all
legal officers and that standby duty is no longer compensated, as stated in an
e-mail from Annie Van Der Meerschen dated April 13, 2010 (new policy).
[6]
The
Association’s grievance only concerns changes to Friday night and
weekend duty.
Here is how the Association describes the nature of the grievance:
[Translation]
The Association is grieving the fact that, in
imposing standby duty outside regular working hours, the Employer has failed to act reasonably,
fairly and in good faith, both in the exercise of its managerial rights and the
administration of the arbitral award. The Association is of the opinion that
the imposition of mandatory standby duty outside regular working hours is inconsistent with the
terms of the arbitral award.
There is nothing in the arbitral award or the
managerial rights that allows the Employer to impose restrictions on lawyers’ private
life while on standby duty outside regular working hours.
The Association is grieving the fact that the
Employer imposes standby duty outside regular working hours which, if refused, may result in
disciplinary action for the bargaining unit’s lawyers.
The Association is grieving the fact that lawyers
will no longer be compensated for standby duty assigned outside regular
working hours despite
the restrictions on their private life.
The Association is grieving the Employer’s
unilateral decision to change its policy for duty outside regular working
hours.
The Association is grieving the fact that the change
in the Employer’s policy contravenes the following:
•
The
Employer’s duty to inform and consult the Association when the Employer considers
changing one of its previous policies;
•
The
Employer’s policy on working hours and the arbitral award that encourages
flexible work schedules.
[7]
On
July 2, 2010, the grievance was denied at the final level of the
grievance process by Hélène Laurendeau, Assistant
Deputy Minister, Compensation and Labour Relations Sector, Treasury
Board Secretariat, who considered that the grievance was not arbitrable and
that, in any event, was without merit:
[Translation]
I have carefully reviewed Ms. Guttman’s
representations on the admissibility of the policy grievance, as
well as on the substance of the grievance. I have also examined the case law submitted in support of
her arguments.
Given
that the arbitral award is silent on the issue of on-call duty, I have come to
the conclusion that the grievance should be denied based on the fact that it
does not meet the definition of a policy grievance in section 220(1) of the
PSLRA as it does not deal with an alleged violation of the arbitral award.
I have nevertheless considered Ms. Guttman’s
representations concerning the substance of the grievance. I have concluded that general management rights permit
the employer to require lawyers to be on-call duty in order to meet operational
requirements
given
that the arbitral award is silent on
the issue of on-call status.
The requirement and burden on the employees are reasonable when one takes into
account the fact that employees would be paid for each hour worked, when called,
and that they could, in many cases, be paid the applicable overtime rate.
Finally, I would add that since all previous
policies were either replaced by the new collective agreement or are covered, as
is the case here, by residual management rights, the argument of past practice must fail.
In light of the above, the grievance is denied and the corrective
action sought is not granted.
[8]
On
July 15, 2010, the Board referred the grievance to adjudication.
[9]
On
July 27, 2010, and hence before the matter was heard by the adjudicator, the Association
entered into a collective agreement with the Treasury Board effective on the
date of its signature and scheduled to expire on May 9, 2011. The hearing
before the adjudicator began in Montréal from March 2 to March 4, 2011; the
hearing continued on September 16 and 26, 2011, when negotiations for renewal
of the collective agreement were already underway.
OBJECTION TO THE
ADJUDICATOR’S JURISDICTION
[10]
When
the hearing opened, the employer made a preliminary objection that the adjudicator
does not have jurisdiction to hear the grievance, on the ground that the
grievance does not concern a subject matter that is covered by section 220(1) of
the PSLRA, which states:
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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 collective agreement
ou une décision arbitrale, l’un peut présenter à l’autre un policy grievance 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 the bargaining unit de
façon générale.
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[Emphasis
added.]
[11]
The
Association invited the adjudicator to dismiss the objection and hear the
matter on the merits, arguing that the adjudicator has jurisdiction under section
220 of the PSLRA and that the grievance was arbitrable, as it involves
section 7 of the
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule
B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter), whereas the new policy on standby duty is neither fair
nor reasonable within the meaning of articles 5
and 6 of the collective agreement.
[12]
At
this point, it will be useful to reproduce article 5 of the collective
agreement (the managerial rights clause):
5.01 All the functions,
rights, powers and authority which the Employer has not specifically abridged,
delegated or modified by this Agreement are recognized by the Association as
being retained by the Employer.
5.02 The Employer will act reasonably, fairly and in
good faith in administering this Agreement.
[13]
Moreover,
the managerial rights clause was already included in the provisions stipulated
in the arbitral award of October 23, 2009, and had been in effect since November
1, 2009.
[14]
In
passing, the term “Employer,” used in the managerial rights clause or elsewhere
in the collective agreement, means Her Majesty in right
of Canada as represented by the Treasury Board, and includes any person
authorized to exercise the authority of the Treasury Board (article
2.01f). Reference must therefore be made to the relevant provisions found in
the important framework statute that is the Financial
Administration Act, R.S.C. 1985, c. F-11 (FAA), in particular sections 7 to 13.
[15]
Article
6 of the collective agreement (the rights of legal officers clause) counterbalances
the managerial rights clause:
6.01 Nothing in this
Agreement shall be construed as an abridgement or restriction of any lawyer's
constitutional rights or of any right expressly conferred in an Act of the
Parliament of Canada.
[16]
However,
it is precisely the rights of legal officers clause that the Association specifically
relies on to argue that the managerial rights clause must be interpreted and applied in light of section 7 of the
Charter, which protects the right to private life. At first blush, the
Association’s grievance is thus a policy grievance, and it is not surprising
that the adjudicator chose to reserve on the employer’s preliminary objection
and hear all of the evidence before making a final decision in this case.
PARTIES’ EVIDENCE
AND THE ADJUDICATOR’S FINAL DECISION
[17]
On
the merits of the grievance, five legal officers with the Immigration
Law Directorate in the Quebec Regional Office—Jocelyne
Murphy, Isabelle Brochu, Caroline Doyon, Émilie Tremblay and Gretchen Timmins—testified
before the adjudicator about the restrictions and inconveniences imposed on their private
lives by the obligation to perform standby duty, particularly the fact that it
is now mandatory and is not compensated. For instance, the
pager must be kept on and legal officers must remain within the operating range
required by the employer. In short, legal officers on call are forced to reorganize
their entire personal and family lives on Friday nights and weekends.
[18]
Management’s
witness, Michel Synnott, explained to the adjudicator that emergencies are
unpredictable in immigration and that the policy on standby duty is rationally
based. Also, the encroachment on legal officers' private lives is minimal. Furthermore,
according to the new policy, standby services are now limited to certain hours:
17:00 to 22:00 on weekdays and 09:00
to 21:00 on weekends. Since compensatory time off is no longer available,
legal officers no longer volunteer. However, if they are required to work on a
Friday night or the weekend, legal officers are paid in cash (LA-1 and LA-2A)
or compensated in leave (LA-2A and LA-3).
[19]
On
November 28, 2011, the adjudicator allowed the employer’s preliminary objection
to her jurisdiction and ordered the file closed. In substance, the adjudicator concluded
that she did not have jurisdiction under section 220(1) of the PSLRA. The
policy on standby duty “is not expressly or implicitly part of a matter dealt with by the collective agreement,” whereas “time
spent on standby . . . cannot be considered time
worked.”
Furthermore, by its behaviour, “the Association rescinded its right to
claim compensation for standby duty and, in this case, to have the policy
declared illegal or contrary to another Act of Parliament.” Articles
5 and 6 of the collective agreement “do not have a general
application that might create an entitlement to a remedy on a matter excluded
from the collective agreement.” Because she does not have
jurisdiction to decide the grievance, the adjudicator concluded that the “issue
. . . to grant a Charter remedy is moot.”
IS THE
APPLICATION FOR JUDICIAL REVIEW MOOT?
[20]
The
Association is asking this Court today to review the impugned decision on the
standard of correctness; it is seeking to have the decision set aside because the
adjudicator has jurisdiction and is requesting that the Court order the Board to
refer the grievance to a new adjudicator. As for the respondent, he submits that
the impugned decision must be reviewed on the standard of
reasonableness
and is requesting that this application be dismissed as the
impugned decision “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9 (Dunsmuir)).
[21]
However,
before considering the merits of this application for judicial review, it is
first necessary to dispose of the respondent’s preliminary submission that
there is no need for the Court to address the adjudicator’s jurisdiction or
the reasonableness of the impugned decision because the matter has become moot,
which is contested by the Association.
[22]
At
the hearing, counsel for the respondent argued that this application for
judicial review has become moot and that there is no need to determine the question
of jurisdiction or any constitutional issues raised by the grievance. With
respect to the alleged violation by the employer of article 6.01 of the
collective agreement and section 7 of the Charter, for example, the legal
officers affected can always present individual grievances.
[23]
The
respondent argues that the first collective agreement has since been replaced
by a new collective agreement, signed on March 12, 2013, and which will now
expire on May 9, 2014. The parties expressly agreed to remove all earnings for
work performed by legal officers outside working hours. In consideration of the
increase in legal officers’ base salary, the Association apparently agreed to concessions
regarding standby duty. Thus, a clause was added clause specifically providing
for compensation that may be granted, at the employer’s discretion, for Friday
night and weekend duty, as well as for time worked outside working hours.
[24]
At
the hearing, counsel referred to the French version of the “memorandum of
understanding” signed on June 25, 2012. One can see that article 13.02(e) of
the collective agreement was amended (the underlined portions show what is
different from the first collective agreement):
[Translation]
(e) Lawyers are eligible
for exceptional management leave with pay, as the delegated
manager considers appropriate, for a period of up to five (5) days in one (1)
fiscal year. Examples of situations where such leave sont may be
granted are where lawyers are required to work excessive hours or where a
lawyer is significantly restricted as a result of being on standby duty.
[25]
In
short, the respondent submits that by signing the new collective agreement, the
Association waived any right to seek the setting aside of the impugned decision
and to request that the grievance be referred to adjudication. Although it is
true, according to counsel for the respondent, that a policy grievance is now
arbitrable—because the question of standby duty is now expressly regulated by
the new article 13.02(e) of the collective agreement—the Association has
nonetheless lost all legal interest in pursuing or file a policy grievance challenging
the legality of the policy on standby duty.
[26]
As
would be expected, the Association completely disagrees with all the “assumptions”
the employer is now making about its intentions. Furthermore, the interpretation
and scope given by the employer to the new provisions of the collective
agreement respecting “management leave” is wrong in law. As evidence, the
so-called [Translation] “duty to
be on call,” referred to in French version of the memorandum of understanding
of June 25, 2012, is not found in the final version signed by the parties on March
12, 2013, which reads as follows:
(e)
Lawyers
are eligible for management leave with pay, as the delegated manager considers
appropriate, for a period of up to five (5) days in one (1) fiscal year.
Examples of situations where such leave may be granted are where lawyers are
required to work excessive hours or where a lawyer is significantly
restricted as a result of being on standby duty.
e) Le juriste est
admissible à un congé de direction payé que le gestionnaire délégué considère
comme approprié pour une période d’au plus cinq (5) jours par exercice
financier. Les exemples de situation où ces congés peuvent être accordés sont
lorsque le juriste doit travailler un nombre d’heures excessif ou lorsque le
juriste est limité d’une manière significative, dû aux périodes où il doit être
en disponibilité.
[Emphasis
added.]
[27]
For
the Association, the issue of whether the employer can force all legal officers
to participate, failing which they will face disciplinary sanctions, in standby
duty is neither resolved nor moot, and furthermore, by signing the new collective
agreement, the Association did not waive its right to have the new policy
declared unlawful under the Charter. Moreover, the employer’s interpretation of
its residual rights is in direct conflict with the rights of lawyers (article 6
of the collective agreement), and in particular, violates their fundamental
right to their private life (section 7 of the Charter).
[28]
The
Association also submits that legal officers with the Immigration Directorate ne
should not have to file individual grievances to challenge a policy generally applicable
to all members of the bargaining unit. According to the principle “work now,
grieve later,” such individual grievances will become moot, unless legal
officers refuses to be on standby duty, which will expose them, of course, to
disciplinary sanctions. The Association has a duty of fair representation to
all members of the bargaining unit, such that the policy grievance remains the
best vehicle to challenge the legality of the policy on standby duty.
[29]
I
have considered the factors usually applicable when a Court is asked to decline
to hear a case on the ground that the issue has become moot (Borowski v
Canada (Attorney General), [1989] 1 S.C.R. 342). It is a discretionary decision
and no particular factor is determinative. On balance, I am not satisfied that
the important issues raised in this application for judicial review are moot, nor
am I convinced that it is in the best interest of the parties and the administration
of justice to decline to decide on the merits of this application for judicial
review.
[30]
I
will explain.
[31]
I
begin by reiterating that under section 233(1) of the PSLRA , every
decision of an adjudicator is final and may not be questioned or reviewed in
any court.
Nonetheless, the same privative clause cannot immunize an adjudicator’s
decision on a judicial review because as the
Supreme Court notes in Dunsmuir at paragraph 30 “the
rule of law is maintained because the courts have the last word on
jurisdiction, and legislative supremacy is assured because determining the
applicable standard of review is accomplished by establishing legislative
intent.”
[32]
If
the Court declines to hear the matter, the impugned decision will remain, and legally
speaking, shall have effect. In practice, the employer may rely on this case to
argue that an adjudicator does not have jurisdiction when it comes to the
exercise of a residual power involving the policy on standby duty.
[33]
Despite
that a provision on compensation was added to the new collective agreement, the
issue of the adjudicator’s jurisdiction is still relevant today. The signing of
a new collective agreement did not cancel the existing grievances and nor is
the grievance of May 18, 2010, the only one with regard to the lawfulness of the
policy on standby duty. Beyond the strict question of compensation, the scope
of the managerial rights clause continues to be the source of a heated dispute
between the parties. Also, the application of section 7 of the Charter remains
an open question.
[34]
Finally,
what is being referred to here are substantive rights and not mere procedural
rights. Unit members, who wish to obey the law, should not be forced to avail
themselves of the constitutional rights they assert or face disciplinary sanctions.
Policy grievances may be presented. The issue is whether the adjudicator made a
reviewable error by refusing to decide on the merits of the Association’s
grievance. Lastly, any assumptions about the Association’s intentions seem to
me inappropriate at this point. Furthermore, I have heard all of the parties’ arguments
on the issue of the adjudicator’s jurisdiction and on the merits of this
application for judicial review. It is thus best to decide these issues.
[35]
I
therefore turn to consider this application for judicial review.
THE STANDARD OF
REVIEW
[36]
The
parties disagree as to the standard of review applicable in
this case.
[37]
In
Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36,
at paragraph 48, the Supreme Court notes that a court deciding an
application for judicial review must engage in a two-step process to identify
the proper standard of review, while adding the following to what has
already been written on the subject in Dunsmuir:
•
First, the reviewing court must consider whether the level of
deference to be accorded with regard to the type of question raised on the
application has been established satisfactorily in the jurisprudence.
•
The second inquiry becomes relevant if the first is unfruitful or
if the relevant precedents appear to be inconsistent with recent developments
in the common law principles of judicial review. At this second stage, the
court performs a full analysis in order to determine what the applicable
standard is.
[38]
However,
the first major challenge is that the two parties disagree on the
characterization of the issues raised in the application for judicial review.
[39]
If
we characterize the issue of whether the adjudicator has jurisdiction under section
220 of the PSLRA to hear the Association’s grievance as a “jurisdictional issue,”
whereas according to Dunsmuir, the impugned decision should be reviewed
on a standard of correctness. That is the Association’s
position. However, the respondent submits that the same case also leads the reviewing
court
to show deference where the question of jurisdiction is within
the expertise of the decision-making body. In the respondent’s view, the arbitrability
of the grievance raises a question of mixed fact and
law falling within the expertise of the adjudicator.
[40]
Knowing
that if I happen to err on the applicable standard of review, my decision will
be reviewed by the Federal Court of Appeal, I believe it is appropriate to adopt
a nuanced approach.
[41]
On
the one hand, as noted in Dunsmuir at paragraph 50, “[a]s important
as it is that courts have a proper understanding of reasonableness review as a
deferential standard, it is also without question that the standard of
correctness must be maintained in respect of jurisdictional and some other
questions of law.” On the other hand, it is important here to
take a “robust view” of the notion of jurisdiction, and as
stated in paragraph 59, “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.”
[42]
I
note that under section 221 of the PSLRA, a party that
presents a “policy grievance” may refer it to adjudication, so the
adjudicator certainly had jurisdiction in the narrow sense to decide
whether or not the Association’s grievance was a policy grievance as defined in
subsection 220(1) of the PSLRA , that is to say, generally involving the
interpretation or application of the collective agreement or the decisions
of an adjudicative tribunal. However, the Supreme Court noted in
2003 in Parry Sound (District), Social Services Administration Board v OPSEU,
Local 324, 2003 SCC 42, at paragraph 16 (Parry Sound), that “[w]here
an arbitration board is called upon to determine whether a matter is
arbitrable, it is well-established that a reviewing court can only intervene in
the case of a patently unreasonable error.”
[43]
The
fact of the matter according to pre-Dunsmuir case law, the degree of deference
to be accorded to a question of arbitrability was very high. The standard referred
to was the “patent unreasonableness” standard. In any event, as
noted in Dunsmuir, notwithstanding the theoretical
differences between the standards of patent unreasonableness and reasonableness
simpliciter, any actual difference between them in
terms of their operation appears to be illusory, such that if the
jurisprudence determined “in a satisfactory manner” that it
was the standard of patent unreasonableness that applied, logically
speaking, the standard of reasonableness should be the standard
of review applicable to a general question of arbitrability of the grievance. The
latter finding correlates well with the recent developments in the law of
judicial review that the adjudicator benefits from the presumption of particular
familiarity with the interpretation of the collective agreement and its
enabling statute: Dunsmuir at paragraphs 54 and 147; Nor-Man Regional
Health Authority Inc v Manitoba Association of Health Care Professionals,
2011 SCC 59, at paragraphs 31 and 36; Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, at paragraph 30;
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62, at paragraph 13; King v Canada (Attorney General),
2012 FC 488, at paragraph 95 (King), affirmed by 2013 FCA 131.
[44]
However,
the presumption of deference with respect to decisions of an
adjudicative tribunal
in labour law referred
to above is not
absolute. It surely does not include issues that are dependant upon the
interpretation of a provision of the Constitution (Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11), including
the Charter, or an enactment other than the enabling statute that the adjudicator
is required to consider or apply to dispose of a grievance. In such cases, the
standard of correctness must be maintained: Syndicat
des professionnelles du centre de jeunesse de Québec (CSN) c Desnoyers,
2005 QCCA 110, at paragraphs 5, 21 and 22; Isidore Garon Ltée v Tremblay;
Fillion et Frères (1976) inc v Syndicat national des employés de garage du
Québec inc, 2006 CSC 2, at paragraph 90. That is the case, for example,
when considering whether the substantive rights and obligations of the Charter
and the Canadian Human Rights Act, RSC, 1985, c H-6, are incorporated into
each collective agreement over which the adjudicator has jurisdiction (Parry
Sound, at paragraph 23). The Association relies here on the application of
section 7 of the Charter, via article 6 of the collective agreement.
MERITS OF THIS APPLICATION
FOR JUDICIAL REVIEW
[45]
Having
carefully reviewed the adjudicator’s reasons for concluding that the Association’s
grievance is not arbitrable in light of the evidence in the record and the applicable
law, I am of the view that her conclusion of lack of jurisdiction is
unreasonable in this case, as the adjudicator undoubtedly had jurisdiction
under the Act to determine the constitutional question raised by the Association’s
grievance.
[46]
The
source of the parties’ rights and obligations is of course the collective
agreement (McGavin Toastmaster Ltd v Ainscough, [1976] 1 S.C.R. 718), but
in the federal public service, consideration must also be given to articles 7
and 11.1 of the FAA, which grants the Treasury Board and deputy
heads very broad residual powers in the exercise of their
human resources management responsibilities, even within a
union environment (King, at paragraphs 110 to 127).
[47]
However,
nor is there any dispute that the adjudicator has jurisdiction over any matter involving
Charter rights, that may be raised in the administration or application of a collective
agreement: McLeod v Egan, [1975] 1 S.C.R. 517 (McLeod); Weber v
Ontario Hydro, [1995] 2 S.C.R. 929, at paragraphs 58-60 (Weber) Parry
Sound, at paragraphs 28-29. Furthermore, in Nova Scotia (Worker’s
Compensation Board) v Martin, 2003 CSC 54, at paragraph 3, the Supreme Court
has already established that
Administrative tribunals which have jurisdiction -- whether
explicit or implied -- to decide questions of law arising under a legislative
provision are presumed to have concomitant jurisdiction to decide the
constitutional validity of that provision.
[48]
Also,
according to paragraph 226(1)(g) of the PSLRA , the adjudicator cannot
refuse to interpret or apply any other Act of Parliament relating to employment
matters on the ground that there is a conflict between the Act and the collective
agreement. Said provision reads as follows:
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226.
(1) An adjudicator may, in relation to any matter referred to adjudication,
…
(g)
interpret and apply the Canadian Human Rights Act and any other Act
of Parliament relating to employment matters, other than the provisions
of the Canadian Human Rights Act related to the right to equal pay for work
of equal value, whether or not there is a conflict between the Act being
interpreted and applied and the collective agreement, if any;
…
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226.
(1) Pour instruire toute affaire dont il est saisi, the adjudicator de grief
peut :
[…]
g)
interpréter et appliquer la Loi canadienne sur les droits de la
personne, sauf les dispositions de celle-ci sur le droit à la parité
salariale pour l’exécution de fonctions équivalentes, ainsi que toute
autre loi fédérale relative à l’emploi, même si la loi en cause entre en
conflit avec une collective agreement;
[…]
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[Emphasis
added.]
[49]
However,
the adjudicator’s refusal to exercise her jurisdiction on the so-called ground
that the grievance was not arbitrable seems unreasonable to me. The adjudicator
reasoning is in all respects capricious and arbitrary because it fails to take
into account applicable legislation and the overall scheme of the provisions of
the PSLRA and the collective agreement. Before this Court, counsel for the respondent
also acknowledged that the employer’s managerial rights are not absolute and
cannot be interpreted in such a way as to limit a constitutional law or other
right derived from an Act of Parliament (section 32 of the Charter and article
6 of the collective agreement).
[50]
In
determining whether the grievance was arbitrable, the adjudicator had to simply
ask herself, as required by subsection 220(1) of the PSLRA , whether the subject
matter in
respect of the interpretation or application of a provision
of the collective agreement or an arbitral award. On its face, the grievance is
specifically in respect of an alleged violation of articles 5.02 and 6 of the
collective agreement, including section 7 of the Charter, in the exercise of the
employer’s residual managerial rights as outlined in article 5.01 of the collective
agreement, derived from any other Act of Parliament relating to employment
matters applicable in this case, namely, the FAA (paragraph 226(1)(g) of
the PSLRA ).
[51]
Contrary
to what the adjudicator surmises in the impugned decision, the arbitrability of
the Association’s policy grievance does not depend on the existence of a
specific provision in the collective agreement allowing the employer to
compensate legal officers who agree or are forced to be on standby duty on
Friday nights and weekends. As the Association has argued from the outset, the
grievance is based on a specific provision in the collective agreement which
requires the employer to act reasonably, fairly and in good faith, in the
administration of the collective agreement, which of course includes any of the
employer’s policies or decisions taken or adopted by the employer under the purported
authority of the managerial rights (5.01 of the collective agreement).
[52]
The
issue of compensation is not the focus of the policy grievance. In the impugned
decision, the adjudicator made much of the fact that the Association “rescinded
its right to claim compensation for standby duty and, in this case, to have the
policy declared illegal or contrary to another Act of Parliament”
(paragraph 89). And therein, in my view, lies the problem as “[u]nder McLeod,
a collective agreement cannot extend to an employer the right to
violate the statutory rights of its employees” (Parry
Sound, at paragraph 32).
[53]
As
the Supreme Court itself stated in Parry Sound at paragraphs 28 and
29:
As a practical matter, this means that the substantive rights and
obligations of employment-related statutes are implicit in each collective
agreement over which an arbitrator has jurisdiction. A collective agreement
might extend to an employer a broad right to manage the enterprise as it sees
fit, but this right is circumscribed by the employee's statutory rights. The
absence of an express provision that prohibits the violation of a particular
statutory right is insufficient to conclude that a violation of that right does
not constitute a violation of the collective agreement. Rather, human rights
and other employment-related statutes establish a floor beneath which an
employer and union cannot contract.
As a result, the substantive rights and obligations of the parties
to a collective agreement cannot be determined solely by reference to the
mutual intentions of the contracting parties as expressed in that agreement.
Under McLeod, there are certain terms and conditions
that are implicit in the agreement, irrespective of the mutual intentions of
the contracting parties. More specifically, a collective agreement cannot be
used to reserve the right of an employer to manage operations and direct the
work force otherwise than in accordance with its employees' statutory rights,
either expressly or by failing to stipulate constraints on what some
arbitrators regard as management's inherent right to manage the enterprise as
it sees fit. The statutory rights of employees constitute a bundle of rights to
which the parties can add but from which they cannot derogate.
[Emphasis
added.]
[54]
Beyond
the mere issue of financial compensation, while the time on standby cannot be
considered “work” (Maple Leaf Mills Inc v UFCW Loc 401, (1995) 50 LAC
(4th) 246), what the Association’s grievance contests is a condition of
employment unilaterally set by the employer, which obliges legal officers on
call, while they are away from the workplace during non-working
hours,
to carry a pager that must be kept on and be available on call to
respond to emergencies, meet with the client and argue a stay
at the time that the Federal Court requires, where applicable. In such cases, is
the employer acting in a reasonable and fair manner by not obtaining the
individual consent of each legal officer concerned? In the absence of consent, should
the employer offer compensation to the legal officer concerned (time off or
overtime pay)?
[55]
It
is precisely because legal officers on call are not at work that
the Association’s policy grievance raises the issue of reasonableness and
legality of a policy that applies to the members of the bargaining unit on a mandatory
basis. The question is whether the abolition of the former compensation policy
regarding legal officers who volunteer for standby duty in immigration outside
regular working hours is allowed under the collective
agreement, and if so, whether all of the provisions relied upon by the employer
are rendered inoperative because they violate a fundamental Charter right. Is this
an infringement on the legal officers’ private
life,
and if so, is the new policy justifiable and reasonable in the
absence of consent or compensation?
[56]
Without
ruling on the merits of the Association’s grievance, I note that the case law recognizes
that an individual’s right to private life is protected under section 7 of the Charter.
In such cases, the adjudicator will have to ask whether the employer’s policy
“strikes a reasonable balance.”
[57]
Thus,
as noted by the Supreme Court in Communications, Energy and Paperworkers
Union of Canada, Locale 30 v Irving Pulp and Paper, Ltd, 2013 SCC 34, at
paragraph 27:
In assessing KVP reasonableness in the
case of unilaterally imposed
employer rules or policies affecting employee privacy, arbitrators
have used a "balancing of interests" approach. As the intervener the
Alberta Federation of Labour noted:
Determining reasonableness requires labour
arbitrators to apply their labour relations expertise, consider all of the
surrounding circumstances, and determine whether the employer's policy strikes
a reasonable balance. Assessing the reasonableness of an employer's policy can
include assessing such things as the nature of the employer's interests, any
less intrusive means available to address the employer's concerns, and the
policy's impact on employees. [I.F., at para. 4]
[58]
I
repeat myself and note once again so that it is clear: in concrete terms, the
Association’s grievance deals with the scope of the residual powers that the
employer submits that it has under the collective agreement and the Act (the
FAA) to force legal officers to share between them standby duty and be available
for standby duty on a rotational basis. The fact of the matter is that
the so-called “jurisdiction” argument raised by the employer in the arbitration,
in the form of a preliminary objection, had all the characteristics of a
circular and specious argument. Moreover, the whole question of “reasonable
balance” was fully understood by the employer, which had Mr. Synnott testify at
arbitration, to counter any allegation that standby duty constitutes an
unreasonable unilateral sanction or an unjustified infringement on
the
employees’ private life.
[59]
I
find it regrettable that, after several days of hearing the matter and after
hearing all of the evidence, the adjudicator still chose not to rule, at least
alternatively, on the merits of the grievance. At the very least, the reasonableness
of her findings on the merits could have been reviewed by the Court in judicial
review. This would have spared the parties the burden of having to start over
again before another adjudicator, because, unfortunately, I cannot exercise my
discretion to refer the matter to the same adjudicator appointed by the Board pursuant
to paragraph 223(2)(d) of the PSLRA, as Ms. Pineau is no longer a member
of the Board.
[60]
Nor
is this an exceptional case in which the Court should render a decision on the
merits in the stead of the adjudicator. On the one hand, I did not hear the
witnesses and there are no transcripts of their testimony before the adjudicator,
whereas the denial of the grievance is based strictly on the finding of lack of
jurisdiction of the adjudicator. On the other hand, I cannot state here that
the Association’s grievance cannot succeed or that it is obvious that the Association
will succeed. I would add that even if the employer seems to have a serious
defence to the rationality of the policy on standby duty and minimal impairment,
that in itself is not sufficient to refuse to grant the remedies sought by the Association
in this application for judicial review.
[61]
In
the exercise of my judicial discretion, it is therefore appropriate to set
aside the impugned decision and refer to the matter to another adjudicator so
that it be decided on its merits.
CONCLUSION
[62]
For
these reasons, the application for judicial review will be allowed. The impugned
decision allowing the employer’s preliminary objection and closing the file on
the ground that the adjudicator does not have jurisdiction will be set aside
and the Association’s grievance will be referred back to the Board so that a new
adjudicator decide the grievance on its merits.
[63]
In
view of the result, costs will be awarded in favour of the Association.
JUDGMENT
THE COURT
ADJUGES AND ORDERS:
1. The application
for judicial review is allowed;
2. The impugned
decision allowing the employer’s preliminary objection and closing the file on
the ground that the adjudicator does not have jurisdiction is set aside and the
Association’s grievance is referred back to the Board so that a new adjudicator
decide the grievance on its merits; and
3. Cost
in favour of the Association.
“Luc Martineau”
Certified
true translation
Daniela
Guglietta, Translator
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