Canada (Attorney General) v. King, 2003 FCT 593

Date: 20030514

Docket: T-2094-01

Neutral citation: 2003 FCT 593

BETWEEN:

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                       Applicant

                                                                              - and -

                                                JOHN KING and KAREN E. HOLZER

                                                                                                                                               Respondents

                                                            REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]                 These reasons follows the hearing of an application for judicial review of a decision of Yvon Tarte, acting as an adjudicator under the authority of section 92 of the Public Service Staff Relations Act^[1] wherein he allowed certain grievances of the Respondents and ordered that:

Any time docked from the grievors pay as a result of the employers' interpretation of clause 43.02 of the collective agreement will be returned to them.

The grievors referred to in the foregoing brief quotation are the Respondents herein.

[2]                 Section 92 of the Public Service Staff Relations Act reads as follows:

92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,

(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),

(I) disciplinary action resulting in suspension or a financial penalty, or

(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or

(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

(2) Where a grievance that may be presented by an employee to adjudication is a grievance described in paragraph (1)(a), the employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit, to which the collective agreement or arbitral award referred to in that paragraph applies, signifies in the prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings.

(3) Nothing in subsection (1) shall be construed or applied as permitting the referral to adjudication of a grievance with respect to any termination of employment under the Public Service Employment Act.

(4) The Governor in Council may, by order, designate for the purposes of paragraph (1)(b) any portion of the public service of Canada specified in Part II of Schedule I.

92. (1) Après l'avoir porté jusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief portant sur_:

a) l'interprétation ou l'application, à son endroit, d'une disposition d'une convention collective ou d'une décision arbitrale;

b) dans le cas d'un fonctionnaire d'un ministère ou secteur de l'administration publique fédérale spécifié à la partie I de l'annexe I ou désigné par décret pris au titre du paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques;

c) dans les autres cas, une mesure disciplinaire entraînant le licenciement, la suspension ou une sanction pécuniaire.

(2) Pour pouvoir renvoyer à l'arbitrage un grief du type visé à l'alinéa (1)a), le fonctionnaire doit obtenir, dans les formes réglementaires, l'approbation de son agent négociateur et son acceptation de le représenter dans la procédure d'arbitrage.

(3) Le paragraphe (1) n'a pas pour effet de permettre le renvoi à l'arbitrage d'un grief portant sur le licenciement prévu sous le régime de la Loi sur l'emploi dans la fonction publique.

(4) Le gouverneur en conseil peut, par décret, désigner, pour l'application de l'alinéa (1)b), tout secteur de l'administration publique fédérale spécifié à la partie II de l'annexe I.

[3]                 It was not in dispute before me that the Respondents were, either "...employee[s] in a department or other portion of the Public Service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4) [of section 92]..." and thus falling within paragraph 92(1)(b), or employees within the scope of paragraph 92(1)(c). Neither was it in dispute that the Respondents had been subjected to disciplinary action resulting in a financial penalty.

[4]                 In the result, it was further not in dispute that the Adjudicator was acting within the scope of authority of an adjudicator under section 92 of the Public Service Staff Relations Act.

BACKGROUND

[5]                 The Respondents were, at all relevant times, employees of Canada Customs and Revenue Agency ("CCRA").    Once again at all relevant times, the Respondents' employment was governed by a collective agreement between CCRA and the Public Service Alliance of Canada ("PSAC") signed by CCRA and by PSAC on the 23^rd of June, 2000^[2]. Their hours of employment were governed by Variable Shift Schedule Arrangements ("VSSAs") entered into at the local level. VSSAs were authorized by the collective agreement governing the Respondents' employment.

[6]                 Under the relevant collective agreement, the standard work week was 37.5 hours. Under the appropriate VSSAs, the Respondent John King's workday was 8.57 hours rather than 7.5 hours, 7.5 hours being the normal workday to produce a five-day work week totalling 37.5 hours of work. The Respondent Karen Holzer worked a 10 hour day rather than a 7.5 hour day. Nonetheless, each worked an average of 37.5 hours per week over a period of 56 days. In the result, the Respondents averaged out to an ordinary work week of 37.5 hours but worked what I understand are often referred to as "compressed hours".

[7]                 The Respondents, like all other employees under the relevant collective agreement, were entitled to five (5) days per year of "Leave With Pay For Family-Related Responsibilities". That entitlement was governed by Article 43 of the relevant collective agreement which was in the following terms:

                                                                 ARTICLE 43

             LEAVE WITH PAY FOR FAMILY-RELATED RESPONSIBILITIES

43.01       For the purpose of this Article, family is defined as spouse (or common-law spouse resident with the employee), dependent children (including foster children or children of legal or common-law spouse), parents (including step-parents or foster parents), or any relative permanently residing in the employee's household or with whom the employee permanently resides.

43.02       The total leave with pay which may be granted under this Article shall not exceed five (5) days in a fiscal year.

43.03        Subject to clause 43.02, the Employer shall grant leave with pay under the following circumstances:

(a)            up to one (1) day to take a dependent family member for medical or dental appointments, or for appointments with school authorities or adoption agencies, if the supervisor was notified of the appointment as far in advance as possible;

(b)           to provide for the immediate and temporary care of a sick member of the employee's family and to provide an employee with time to make alternate care arrangements where the illness is of a longer duration;

(c)            to provide for the immediate and temporary care of an elderly member of the employee's family;

(d)            two (2) days leave with pay for needs directly related to the birth or to the adoption of the employee's child, which may be divided into two (2) periods and granted on separate days.

[8]                 The Respondents took advantage of the family-related responsibilities leave provision of their collective agreement, as they were entitled to do.

[9]                 The Applicant took the position that a "day" within the meaning of Article 43 of the relevant collective agreement, and more particularly within the meaning of Article 43.02, was a "normal" 7.5 hour workday and not the longer workday that each of the Respondents in fact worked under the terms of their relevant VSSAs. In the result, when each of the Respondents took five days of family-related responsibilities leave, they were "docked" pay, in the terms of the Adjudicator's decision, for the number of hours they took off work in excess of 37.5 hours.

[10]            It was this action by the employer that gave rise to the grievances that were the subject of the arbitration decision that is under review.

THE DECISION UNDER REVIEW

[11]            The Adjudicator's reasons for decision consisted of only eight (8) paragraphs. For ease of reference, they are quoted here in full:

Reasons for decision

These cases deal with the interpretation of the word day in article 43 of the collective agreement. Although the word day is not defined for the purposes of family related leave and although arguments can be made for both interpretations being advanced by the parties, I believe that the position taken by the grievors and their bargaining agent is the most appropriate in the circumstances.

A normal interpretation of the word day as a period of 24 hours is consistent with the intent and scheme of the collective agreement. Unless otherwise specified, as in the case of earned vacation or sick leave, a day must mean just that. This view is supported by the employer's own interpretation of the 10 day suspension imposed on Mr. King. In that case the employer argued that, given the grievor's shift work, a 10 day suspension amounted to 85.4 hours and not the standard 75 hours.

It is also supported by the fact that in subclause 25.27(g) the parties have specifically called for the conversion into hours of the acting pay qualifying period expressed in days in the collective agreement. A similar provision could easily have been inserted in the collective agreement with respect to the period of time available for family related leave.

As was stated in the Phillips case ... "...the employer's view would perpetrate an unfairness on those employees who work long shifts...". The events giving rise to family related leave do not fit within the confines of a 7.5 hour shift.

As in the Phillips case ... clause 45.01 dealing with marriage leave sheds some light on the question. In that case the adjudicator, at pages 32-33, stated:

Clause M-21.01 Marriage Leave With Pay [...] specifies that "providing an employee gives the employer at least five (5) days notice, the employee shall be granted five (5) days marriage leave with pay for the purpose of getting married". In this provision, the term "day" is used for two purposes: firstly, as the basis for notice to the employer and secondly, in describing the entitlement. It is inconceivable to me that the notice required under this provision is in effect a little over two days for those employees who are working 18-hour shifts. Surely it would be quite disruptive to the employer's operation if the entitlement in this provision could be triggered on such short notice. A more logical interpretation would be that both the entitlement in respect of marriage leave and the entitlement to leave for family-related responsibilities were intended to allow the employee sufficient time off to respond to the real needs of employees which are envisaged in these provisions. To interpret it otherwise is neither consistent with the terms of the agreement nor would it be equitable to the employees as a whole.

I should add that the Phillips decision ... was decided in 1991. The employer has had ample opportunity and time to clarify the meaning of the word day in the family related leave provisions of the collective agreement in subsequent rounds of collective bargaining had it wished to do so.

Finally, I do not believe that this interpretation of the provision dealing with family related leave violate clause 25.25 of the collective agreement since article 43 contemplates the granting of such leave on the basis of a 24 hour period.

The grievances of Mr. King and Ms. Holzer are allowed. Any time docked from the grievors pay as a result of the employer's interpretation of clause 43.02 of the collective agreement will be returned to them.^[3]                      [Citations omitted]

THE ISSUES

[12]            Only two (2) issues were argued on this application for judicial review. The first, the appropriate standard of review, essentially gave rise to no dispute between the parties. The second, simply stated, was whether or not, against the appropriate standard of review, the Adjudicator made any reviewable error.

ANALYSIS

a)         Standard of Review

[13]            In Barry v. Canada (Treasury Board)^[4], Justice Robertson, following a brief analysis of precedents in the Supreme Court of Canada, wrote at paragraph [4]:

In conclusion, the standard of review of an adjudicator's decision, rendered under the [Public Service Staff Relations Act], with respect to the interpretation of the provisions of a collective agreement is whether the decision is patently unreasonable. This was true prior to June 1, 1993 [when a privative clause contained in the Act was repealed] and the same holds true after that date.

[14]            It was not in dispute before me that the issue before the Adjudicator and that is now before this Court, was "...with respect to the interpretation of the provisions of a collective agreement...".

[15]            In Essex County Roman Catholic School Board (The Windsor-Essex Catholic School Board) v. Ontario English Catholic Teachers' Association^[5], Justice MacPherson, for the Court and under the heading "Was the arbitrator's award patently unreasonable?" wrote at paragraph 36:

To the non-legal ear, an accusation that one's interpretation or opinion on some matter is patently unreasonable would probably be regarded as a serious, even stinging, rebuke. In the legal context, it is clear that the label carries with it an equally serious rebuke. In a long line of cases, the Supreme Court of Canada has cautioned courts against easy resort to the label in the exercise of their judicial review function. As expressed by Cory J. in Canada (Attorney General) v. Public Service Alliance of Canada,... :

It is said that it is difficult to know what "patently unreasonable" means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reason. Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary "patently", an adverb, is defined as "openly, evidently, clearly". "Unreasonable" is defined as "[n]ot having the faculty of reason; irrational. . . . Not acting in accordance with reason or good sense". Thus, based on the dictionary definition of the words "patently unreasonable" it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test.                                                                                               [italics in the report of MacPherson J.A.'s reasons, one citation omitted]

[16]            Recently, my colleague, Justice Heneghan had before her a decision of an adjudicator in which the Adjudicator upheld the grievance of an individual, apparently one of the Respondents here, respecting the calculation of his compensation for having worked on a designated paid holiday. In Canada (Attorney General) v. King^[6], Justice Heneghan concluded at paragraph [25] of her reasons:

The Applicant has not established that the decision is patently unreasonable, in the sense of being "clearly irrational" or "simply ridiculous".

Justice Heneghan's decision was appealed. The Federal Court of Appeal disposed of the appeal in very brief reasons, the second paragraph of which reads as follows:

We are not persuaded that the Adjudicator's decision can be viewed as clearly irrational. We say this despite the able argument of counsel for the appellant to the effect that the Adjudicator's decision was patently unreasonable.^[7]

[17]            Counsel for the Applicant urged that none of the foregoing authorities stands for the principle that the decision of an adjudicator in the interpretation of a collective agreement is "bullet proof" on judicial review. In this regard, counsel cited Canada Safeway Ltd. v. RWDSU, Local 454^[8] where the Supreme Court of Canada considered a decision of a Board of Arbitrators that imported a concept of constructive layoff, not found in the collective agreement at issue, and concluded that it gave rise to a scheduling grievance not specified in the collective agreement. The Court concluded at paragraph 82, page 1116, that the Board of Arbitrators had granted a remedy "...not rationally connected to the breach alleged and [running] counter to the provisions of the collective agreement" and that, in so doing, the Board of Arbitrators had reached a determination that was patently unreasonable. Counsel for the Applicant urged that I should reach a similar conclusion on the facts of this matter.

b)         Was the Arbitrator's decision that is under review patently unreasonable?

[18]            Counsel for the Applicant urged that I should determine that the answer to this issue question, the sole substantive issue before the Court, is "yes", primarily by reference to Article 33 of the relevant collective agreement, and more particularly by reference to clause 33.01. The headings preceding clause 33.01 and clause 33.01 itself read as follows:

                                                                 ARTICLE 33

                                            LEAVE - GENERAL

33.01

(a)            When an employee becomes subject to this Agreement, his or her earned daily leave credits shall be converted into hours. When an employer ceases to be subject to this Agreement, his or her earned hourly leave credits shall be reconverted into days, with one day being equal to seven and one-half (7 ½) hours.

(b)           When leave is granted, it will be granted on an hourly basis and the number of hours debited for each day of leave being equal to the number of hours of work scheduled for the employee for the day in question.

(c)            Notwithstanding the above, in Article 47, Bereavement Leave With Pay, a "day" will mean a calendar day.       [Emphasis added]

[19]            Counsel for the Applicant urged that clause 33.01 applies directly with respect to leave for family-related responsibilities, as provided for in Article 43, which, like clause 33.01 is within Part IV- LEAVE PROVISIONS of the relevant collective agreement. As such, counsel submitted, in interpreting the leave for family-related responsibilities provision, the concept "day" should be converted into hours with one (1) day being equal to seven and one half (7 ½) hours. He urged that, by reference to sub-clause 33.01(c), the sole exception to such conversion into hours related to Bereavement Leave With Pay where a "day" is to mean a calendar day. Thus, counsel posited, since a day is to be converted to seven and one half (7 ½) hours, those like the Respondents who worked longer hours under a VSSA should only be entitled to a work credit of seven and one half (7 ½) hours for a calendar day taken as leave for family-related responsibilities, notwithstanding that, if they had worked that day, they would have worked more than seven and one half (7 ½) hours and been paid for the hours they worked according to their VSSAs.

[20]            The Arbitrator acknowledged this argument before him when, at paragraph [19] of his reasons, under the headings "Arguments" and "For the employer" he wrote:

The general clause of the collective agreement dealing with leave (33.01) requires that leave credits be converted to hours. Given that under clause 43.02 family related leave cannot exceed 5 days, it becomes obvious that the 5 days must be converted to 37.5 hours.

[21]            The Arbitrator did not explicitly address this argument. That being said, I am satisfied that he did implicitly address it in paragraph [21] of his reasons earlier quoted, but repeated here for convenience:

These cases deal with the interpretation of the word day in article 43 of the collective agreement. Although the word day is not defined for the purposes of family related leave and although arguments can be made for both interpretations being advanced by the parties, I believe that the position taken by the grievors and their bargaining agent is the most appropriate in the circumstances.

[22]            I am satisfied that this brief analysis and conclusion by the Arbitrator was open to him. Put another way, I am satisfied that his quoted conclusion was neither "clearly irrational" or "evidently not in accordance with reason". I was referred to nothing in the relevant collective agreement that indicates that leave with pay for family-related responsibilities is "earned daily leave" within the meaning of clause 33.01 of the collective agreement. If leave with pay for family-related responsibilities is not "earned daily leave" but rather is a daily leave credit that is an entitlement, and I am satisfied that it is open to such an interpretation, then clause 33.01 simply does not apply to leave with pay for family-related responsibilities notwithstanding the fact that clause 33.01 and clause 43.01 both appear in Part IV, LEAVE PROVISIONS of the collective agreement.

[23]            A cursory analysis of the Leave With Pay for Family-Related Responsibilities provision of the collective agreement reveals: first, that it is a form of compassionate leave not unlike Bereavement Leave With Pay, which is specifically excepted from the general principles of clause 33.01; and second, that it is a form of an entitlement leave rather than an earned daily leave. Arguably, since it is an entitlement leave, rather than an earned daily leave, it falls outside sub-clause 33.01(a). Bur that provides no explanation as to why it is not treated, within the context of clause 33.01, in the same way as Bereavement Leave With Pay. I am satisfied that it is equally distinguishable from Bereavement Leave, which is for a period of five (5) consecutive calendar days, which must include the day of the funeral and which, almost inevitably, will not all be workdays in the majority of circumstances. I am satisfied that this distinction is sufficient to allow the Adjudicator to conclude as he did.

[24]            In the result, I am satisfied that it was open to the Adjudicator to interpret "day" in the Leave With Pay for Family-Related Responsibilities provision of the collective agreement without reference to clause 33.01 of the agreement and, in so doing, to conclude that, in the Leave With Pay for Family-Related Responsibilities provision of the collective agreement, "day" means a period of twenty-four (24) consecutive hours, regardless of the number of hours that a particular employee such as either of the Respondents might have worked in that "day". In the further result, it was open to the Adjudicator to conclude that it was contrary to the collective agreement for the employer to have "docked" from the grievors, here the Respondents, pay for hours taken by either of them, in excess of 37.5 hours, as leave with pay for family-related responsibilities.

CONCLUSION

[25]            Based upon the foregoing analysis, this application for judicial review will be dismissed. Each side sought costs in the event that it was successful. I am satisfied that costs should follow the event. The Respondents will be entitled to a single set of costs, as against the Applicant.

(Sgd.) "Frederick E. Gibson"

J.F.C.C.

Vancouver, B.C.

May 14, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-2094-01

STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA

v. JOHN KING ET AL.

PLACE OF HEARING:                                   OTTAWA, ON

DATE OF HEARING:                                     April 29, 2003

REASONS FOR ORDER:                              GIBSON J.

DATED:                      May 14, 2003

APPEARANCES:

Mr. Richard Fader                                                FOR THE APPLICANT

Mr. James Cameron                                             FOR THE RESPONDENTS

SOLICITORS OF RECORD:

Morris Rosenberg                                                 FOR THE APPLICANT

Deputy Attorney General of Canada

Raven, Allen, Cameron & Ballantyne                  FOR THE RESPONDENTS

Ottawa, ON