Docket: A-308-16
Citation:
2017 FCA 81
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CORAM:
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GAUTHIER J.A.
BOIVIN J.A.
WOODS J.A.
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BETWEEN:
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BRIAN ALLEN,
DAVID DUNCAN,
JOLANTA
MALGORZATA KANABUS-KAMINSKA, DAVID O'NEIL, DARWIN REED, and
RESEARCH
COUNCIL EMPLOYEES' ASSOCIATION
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Applicants
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And
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NATIONAL
RESEARCH COUNCIL OF CANADA
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on April
25, 2017).
GAUTHIER J.A.
[1]
This is an application for judicial review of
the decision (2016 PSLREB 76) of an adjudicator of the Public Service Labour
Relations and Employment Board (the Board) dismissing various grievances filed
by the applicants.
[2]
The Research Council Employees’ Association
(RCEA) is a bargaining agent representing the majority of employees at the
National Research Council of Canada (NRC). It filed a policy grievance in
respect of a practice adopted by the NRC in computing the severance pay for
layoff of employees in the Technical Category (To) Bargaining Unit.
[3]
The five individual applicants were all members
of the RCEA employed in the To Bargaining Unit until they were laid off by the
NRC in 2013. Their individual grievances, which were heard by the adjudicator together
with the RCEA’s grievance, all concern the amount they said should have been
payable to them upon their layoff under the collective agreement. These five
claimants had all opted to cash out their accumulated severance (maximum 30
weeks) in accordance with article 56.10 (a) of the collective agreement at
issue after the provisions dealing with severance pay for voluntary termination
were eliminated from the collective agreement.
[4]
The applicants raised two issues before us:
i.
Whether the adjudicator’s interpretation of the
collective agreement was unreasonable; and
ii.
Whether the adjudicator erred in failing to apply
the doctrine of issue estoppel on the basis that the same issue had been
determined by the Board in the context of a review of the Terms of Reference for
an interest arbitration involving substantially the same parties in 2012 (2012
PSLRB 115).
[5]
The parties disagree on the standard of review
applicable to the second issue. We are of the view that the adjudicator’s application
of the common law doctrine of issue estoppel to the particular facts before him
is reviewable on a standard of reasonableness (Nor-Man Regional Health
Authority v. Manitoba Association of Health Care Professionals, 2011 SCC
59, 2011 [2011] 3 S.C.R. 616 (Nor-Man); Loewen v. Manitoba Teachers’
Society, 2015 MBCA 13).
[6]
The adjudicator held that for the purpose of
applying the cap (that is the maximum total benefits to which an employee is
entitled) of 70 weeks set out in article 3.6.13.1 the Work Force Adjustment
(WFA) Policy incorporated in the collective agreement (article 55.1), one must
consider what an employee is entitled to under article 56.1.3, which
specifically deals with this question in respect of layoffs. We understand from
the reasons and its Appendix 1 that it is only after computing the effect of
the cap on the maximum total benefits to which one is entitled under the WFA
Policy, that article 56.7.1 comes into play to determine what is payable upon departure
because of payments already made in respect of other severance benefits. For
example, a payment in advance made to an employee who opted for cashing out
under article 56.10(a) would reduce the amount payable with respect to the
layoff to give effect to the said provision and to avoid pyramiding benefits.
[7]
The applicants argued that there was a more
appropriate way to construe article 3.6.13.1 of the WFA Policy that would give
effect to all the relevant paragraphs of article 56 which deals with severance
pay. More particularly they submit that on the plain meaning of article 56.7.1,
the weeks of continuous work for which another severance benefit was paid to an
employee pursuant to article 56.9 and 56.10(a) should be deducted from the maximum
entitlement set out at article 56.1.3 before applying the 70-week cap provided
at article 3.6.13.1 of the WFA Policy. This method would result in all the
individual grievances before the adjudicator, in an increased amount to be paid
compared to what the said employees would have received had they opted to
receive a single payment pursuant to article 56.10(b) (all severance benefits
to be paid upon departure).
[8]
While it is evident that the reasons of the
adjudicator could have been drafted more clearly, we are satisfied that upon
reading the decision as a whole and in its context, it is sufficient to enable
us to exercise our jurisdiction and to “connect the
dots” (Newfoundland and Labrador Nurses' Union v. Newfoundland and
Labrador (Treasury Board, 2011 SCC 62, [2011] 3 S.C.R. 708).
[9]
The interpretation of a collective agreement is
at the very core of an adjudicator’s expertise. It may well be that the
construction proposed by the applicants could have been adopted by the
adjudicator or by this Court, but this is not the question before us. What must
be determined is whether the interpretation adopted by the adjudicator is
within the range of possible issues defensible on the law and the facts.
[10]
We are satisfied that the adjudicator was alert
and alive to all the arguments put forth by the applicants, including the
weight and effect to be given to the 2012 decision of the Board. We have not
been persuaded that the adjudicator made a reviewable error in construing the
collective agreement that would justify our intervention. His conclusion was
reasonable.
[11]
With respect to the issue of issue estoppel, the
parties agree that the adjudicator was not satisfied that in 2012, the Board
had to construe the provisions in play before him, including particularly
article 56.7.1. This is in fact why the NRC argued that it was not necessary
for him to decide whether the 2012 decision was manifestly wrong. The
applicants submit that the adjudicator erred in reaching this conclusion. We
have not been convinced that the adjudicator’s decision not to apply issue
estoppel was unreasonable in the circumstances of this case and in light of
governing principles of labour arbitration in Canada (Nor-Man).
[12]
In light of the foregoing, the application will
be dismissed with costs.
"Johanne Gauthier"
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