Date: 20090914
Dockets: A-583-08
A-585-08
Citation: 2009 FCA 263
CORAM: NOËL J.A.
PELLETIER J.A.
TRUDEL J.A.
A-583-08
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Appellant
and
FRANK NITSCHMANN, ERIC
ARMSTRONG, AU HAI NGUYEN,
QUIRINO DEL CASTILLO, DOUG CHAPPELL, PIERRE GOULET,
TERRANCE McKINNON, GERARD PINEAULT,
MUZAFFOR AHMED,
GERRY SANDER, DAVID OLIVE, THE ESTATE OF
THE LATE DAVID SWAIN
Respondents
A-585-08
BETWEEN:
FRANK NITSCHMANN, ERIC ARMSTRONG, AU HAI
NGUYEN,
QUIRINO DEL CASTILLO, DOUG CHAPPELL, PIERRE GOULET,
TERRANCE McKINNON, GERARD PINEAULT,
MUZAFFOR AHMED,
GERRY SANDER, DAVID OLIVE, THE ESTATE OF
THE LATE DAVID SWAIN
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by TREASURY BOARD
Respondent
Heard at Ottawa, Ontario, on September
9, 2009.
Judgment delivered at Ottawa,
Ontario, on September
14, 2009.
REASONS FOR JUDGMENT BY: NOËL
J.A.
CONCURRED
IN BY: PELLETIER
J.A.
TRUDEL J.A.
Date: 20090914
Dockets: A-583-08
A-585-08
Citation: 2009 FCA 263
CORAM: NOËL
J.A.
PELLETIER
J.A.
TRUDEL
J.A.
A-583-08
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
FRANK NITSCHMANN, ERIC ARMSTRONG, AU HAI
NGUYEN,
QUIRINO DEL CASTILLO, DOUG CHAPPELL, PIERRE GOULET,
TERRANCE McKINNON, GERARD PINEAULT,
MUZAFFOR AHMED,
GERRY SANDER, DAVID OLIVE, THE ESTATE OF
THE LATE DAVID SWAIN
Respondents
A-585-08
BETWEEN:
FRANK NITSCHMANN, ERIC ARMSTRONG, AU HAI
NGUYEN,
QUIRINO DEL CASTILLO, DOUG CHAPPELL, PIERRE GOULET,
TERRANCE McKINNON, GERARD PINEAULT,
MUZAFFOR AHMED,
GERRY SANDER, DAVID OLIVE, THE ESTATE OF
THE LATE DAVID SWAIN
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by TREASURY BOARD
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1]
These
are appeals from decisions of Justice Snider (the Federal Court Judge), dated
October 24, 2008, disposing of two applications for judicial review in the course
of a single set of reasons. The applications were directed at decisions
rendered by an adjudicator of the Public Service Labour Relations Board (the
adjudicator) rendered pursuant to the Public Service Staff Relations Act,
R.S.C. 1985, c. P-35 (the PSSRA).
[2]
The
appeals were heard together by order of the Chief Justice dated May 22, 2009
and the following reasons dispose of both appeals. The original will be filed
in court file A-583-08 and a copy thereof in court file A-585-08.
BACKGROUND
[3]
The
dispute involves a group of heating plant operators (the employees) employed in
a section of Public Works and Government Services Canada (the employer). Their
work relationship is governed by a collective agreement negotiated between the
Treasury Board of Canada and the Public Service Alliance of Canada (the
collective agreement).
[4]
The
dispute results from a unilateral change brought by the employer to the
employees work schedule. Until 2002, 10 of the employees worked 12-hour shifts
on a rotating basis over a 12-week schedule for an average of 40 hours per week
(averaged over the 12-week cycle). One of the employees worked a consistent
schedule of 8 hours during the day, Monday to Friday.
[5]
On October 28, 2002, the employer imposed a
5-week shift schedule that required all the employees to work a mix of 8-hour
and 12-hour shifts. More specifically, the employees had to work 4 days of
8-hour shifts over a 5-week schedule with the remainder of the shifts being 12
hours in length. Employees continued to work an average of 40 hours per week,
though the average was now calculated over a 5-week cycle rather than over a
12-week cycle.
[6]
The
employer now concedes that the change which it brought to the work schedule was
in breach of the collective agreement. The issue turns on the extent of the
damages, if any, payable as a result of this breach.
[7]
In
rejecting the applications for judicial review, the Federal Court Judge upheld the
adjudicator’s decision to award the overtime rate for the hours worked outside
of those permitted under the collective agreement (the authorized schedule),
and not to award any amounts for statutory holiday premiums and transportation
expenses with respect to the hours worked outside of the authorized schedule.
STANDARD OF REVIEW
[8]
The
parties concede that the Federal Court Judge properly concluded that deference was
owed to the adjudicator on both issues and that the appropriate standard of
review is that of reasonableness as defined by the Supreme Court of Canada in Dunsmuir
v. New
Brunswick,
2008 SCC 9 (Dunsmuir). I agree that reasonableness is the standard
applicable to the review of the adjudicator’s decision by the Federal Court
Judge given that both issues turn on the interpretation and application of the
collective agreement, an exercise with which adjudicators have particular
familiarity.
[9]
When
reviewing for reasonableness, a Court must examine the reasons given for the
decision in order to ensure that it contains a rational justification. A
decision is rationally justified if it falls within a range of possible,
acceptable outcomes which are defensible having regard to the relevant facts
and the law (Dunsmuir, above, para. 47).
ANALYSIS AND DECISION
[10]
The first
issue (A-583-08) is whether the employees should be compensated, by way of
damages, for the hours worked outside the authorized work schedule. In his
decision, the adjudicator held that damages were to be awarded based on the
difference in overtime and other applicable premiums between the improperly
imposed shift schedule and the authorized work schedule that the employees were
working prior to the breach of the collective agreement. The main portions of
his reasons 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
had 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.
That was the method the bargaining agent used in its calculations (contained in
its submissions). 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.
[11]
The
term “overtime” is defined in the collective agreement as “authorized work in
excess of the employee’s scheduled hours of work”. As was noted by the Federal
Court Judge, it is evident from the adjudicator’s reasons that he interpreted
the term “overtime” to include hours worked outside of the authorized work
schedule. The question, therefore, that the Federal Court Judge had to answer
was whether the adjudicator’s interpretation of the term “overtime” fell within
a range of possible, acceptable outcomes which are defensible when regard is
had to the facts and the law.
[12]
The submission
of the employer is that the collective agreement provides for overtime only
with respect to work done in excess of the employees’ scheduled hours of
work and that overtime is not available for work done outside of the
employees’ scheduled hours of work. Thus, the employer argues that, in
construing the term “overtime” to include hours worked outside of the
authorized work schedule, the adjudicator awarded a remedy that required, in
effect, an amendment to the collective agreement contrary to subsection 96(2)
of the PSSRA.
[13]
A
review of the relevant jurisprudence and doctrine in the field of labour
arbitration indicates that the words “in excess of” can apply to work hours
that fall outside of an authorized work schedule and that this does not mean
that work must be in addition to normal work hours (Reference is made to Re
United Glass and Ceramic Workers, Local 248, and Canadian Pittsburgh Industries
Ltd. (1972), 24 L.A.C. 402 (Brown) (QL) at 2, 5; 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)); Donald J. M. Brown
and David M. Beatty, Canadian Labour Arbitration, 4th ed. (Aurora:
The Cartwright Group, 2007) at para. 8:2110; Prof. E. E. Palmer, Collective
Agreement Arbitration in Canada, 3rd ed. (Markham: Butterworths
Canada Ltd., 1991) at 606). In my respectful view, it was open to the Federal
Court Judge to accept the adjudicator’s interpretation of the term “overtime” as
reasonable.
[14]
The
employees for their part (A-585-08) submit that the denial of damages to
compensate for expenses incurred in traveling to work for those days that they
worked under the unauthorized schedule that would have been a day of rest under
the authorized schedule is inconsistent with a plain reading of the collective
agreement and the adjudicator’s own express findings respecting compensation on
account of overtime.
[15]
Under
clause 29.10 of the collective agreement transportation expenses for overtime
hours are payable to an employee where the work is not contiguous to the
employee’s scheduled hours and the employee is required to travel to
work other than by normal public transportation. Having regard to the evidence
before him, the adjudicator concluded that the employees did not incur
additional transportation expenses as a result of the unauthorized schedule. He stated
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.
[16]
In
the absence of evidence of expenses beyond those that would have been incurred
under the authorized schedule, it was reasonable for the Federal Court Judge to
uphold the adjudicator’s decision.
[17]
The employees also take issue with the Federal
Court Judge’s dismissal of their claim for designated holiday pay. Under the
12-week schedule, designated holidays which fell on a day of rest were deemed
to occur on the employee’s next work day and, in respect of work done on that
day, the employee received his regular rate of pay plus a holiday premium equal
to one and one half times his regular rate of pay. Under the 5-week cycle, when
a designated holiday fell on a day of rest within the maintenance portion of
the cycle (4 eight hour shifts), the holiday was, once again, deemed to occur on
the employee’s next work day, but the employee was simply given the day off
with pay. Thus instead of working 12 hours at 2.5 times the regular rate of
pay, employees were paid their regular pay for 8 hours which they did not work.
[18]
The adjudicator held that there was no loss as
the employee had not worked the designated holiday and had received a day of
paid leave. The Federal Court judge accepted that this was a reasonable
conclusion. With respect, this conclusion is unreasonable because it ignores
the actual loss of pay suffered by the employees when the 12-week schedule is
laid over the unauthorized
5-week schedule. These losses were recognized by the employer in its own
calculations (see
A-583-08, Appeal Book, vol. 3, pp. 434, 436 and 437).
[19]
The adjudicator acted unreasonably in departing
from the method which he himself had imposed for the calculation of losses
arising from the implementation of the unauthorized schedule. As a result, I
would allow the employees’ appeal on this issue.
DISPOSITION
[20]
I would
dismiss the employer’s appeal in file A-583-08 and allow the employees’ appeal in
file A-585-08 in part, set aside the decision of the adjudicator insofar as
compensation for designated holiday pay is concerned, and remit the matter back
to the adjudicator for reconsideration in a manner consistent with these
reasons.
[21]
Given
the above disposition, the employer should bear the costs of the appeal in file
A-583-08, and the costs of both the judicial review application and the appeal
in file A-585-08. However given the limited success in file A-585-08, I would
direct that costs be computed at the lower end of Column III of Tariff B.
“Marc
Noël”
“I
agree.
J.D. Denis Pelletier J.A.”
“I
agree.
Johanne Trudel J.A.”
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