Docket: A-391-13
Citation: 2015 FCA 136
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CORAM:
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PELLETIER J.A
GAUTHIER J.A.
SCOTT J.A.
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BETWEEN:
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TED MCMANAMAN
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Appellant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT
GAUTHIER J.A.
[1]
Ted McManaman is appealing from the decision (2013
FC 1064) rendered by Justice Mosley of the Federal Court that allowed the
respondent’s application for judicial review of a decision rendered by an
adjudicator from the Public Service Labour Relations Board (PSLRB). The judge
also rejected the appellant’s grievance regarding the allocation of overtime on
January 7, 2011.
[2]
The judge applied the reasonableness standard
and concluded that the adjudicator’s decision was unreasonable because, after
referring to the test set out in Canada (Attorney General) v.
Bucholtz, 2011 FC 1259 [Bucholtz], for determining whether the
employer had allocated available overtime work on an equitable basis, the
adjudicator allegedly did not apply that test in its entirety. According to the
judge, the adjudicator, on the one hand, did not consider the fiscal year as a
whole and, on the other, compared the appellant’s situation solely with that of
an employee who actually worked the overtime hours on January 7, 2011, but
was clearly not in a similar situation. According to the judge, in the light of
the test that the adjudicator had identified (paragraphs 29 to 33 of his
reasons, 2012 PSLRB 75), he should have compared the appellant’s situation with
those of other similarly situated employees over the course of the year.
[3]
In the context of an appeal from a decision disposing
of an application for judicial review, this Court must determine whether the
judge chose the correct standard of review and applied it properly (Agraira v.
Canada (Public Safety and Emergency Preparedness), 2013 SCC 36
at paragraph 46).
[4]
In this case, it is common ground that the judge
applied the correct standard. What therefore remains to be examined is whether
he applied it properly.
[5]
At the hearing, the appellant submitted that the
judge had simply substituted his opinion for that of the adjudicator. He states
that the adjudicator was entitled to conclude that overtime hours had been
assigned inequitably on January 7, 2011, even if this inequity involved
just one shift. According to the appellant, even though the adjudicator does
not directly address the appellant’s situation in relation to those of other similarly
situated employees in his analysis at paragraphs 35 to 37 of the reasons,
the adjudicator had sufficient evidence before him (see the evidence described
at paragraphs 5 and 6 of the reasons) for the Court to infer that he
implicitly concluded that this comparison confirmed the inequity in the
allocation of overtime to the appellant’s detriment.
[6]
The parties agree that the adjudicator described
the proper test and that this test necessarily involves the comparative
analysis described in Bucholtz. Therefore, the only real issue before us
is whether, using the approach set out in Newfoundland and Labrador Nurses'
Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR
708, particularly at paragraphs 14 and 15, the Court can in this case
infer from the outcome that the adjudicator implicitly concluded as the
appellant suggests, and this assumes that the evidence in the record was
sufficient for him to do so.
[7]
The parties have made some rather detailed
arguments regarding the evidence in the record. However, they do not agree on
which employees had to be taken into account in this case, or on the details
that the adjudicator needed to make the comparison described in Bucholtz.
[8]
In the absence of any guidance on this subject,
be it in the adjudicator’s decision or in arbitral case law, I cannot conclude
whether the decision is reasonable without defining the phrase “similarly
situated employees” and determining the relevant factors for comparison. The
deference owed to the adjudicator suggests that the Court should not substitute
its own judgment for that of the adjudicator to define these concepts, which
are at the core of the PSLRB’s expertise. .
[9]
I also agree with the appellant that the judge
erred in substituting his own interpretation of “similarly situated employees”
and rendering the decision that the adjudicator should have rendered. It
appears that he took the liberty of doing this because, in his view, there was
little chance that the facts in this case would reoccur, given the amendments
made to the collective agreement.
[10]
However, the parties before the Court agree that
the issue at stake— namely, which employees are similarly situated and must be
taken into account, and what evidence does an adjudicator need to conduct the
analysis set out in Bucholtz—is important because it is relevant in this
respect to a number of grievances that are still pending.
[11]
I therefore conclude that it would be more
appropriate to refer the matter back to the adjudicator to decide this issue
with regard to the grievance concerning January 7, 2011. I therefore propose
that the appeal be allowed and that, rendering the decision that the judge
should have made, the application for judicial review be allowed and the matter
referred back to the adjudicator to decide the grievance concerning the
allocation of overtime on January 7, 2011, in accordance with these
reasons, without costs.
“Johanne Gauthier”
“I agree.
J.D. Denis Pelletier J.A.”
“I agree.
A.F. Scott J.A.”
Certified true translation
François Brunet,
Revisor
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