Piotrowski v. Canada (Attorney General), 2003 FCT 757

Date: 20030620

Docket: T-1827-01

Citation: 2003 FCT 757

BETWEEN:

                                                               PIOTR PIOTROWSKI

                                                                                                                                                       Applicant

                                                                                 and

                                            THE ATTORNEY GENERAL OF CANADA

                                                    (Canadian Food Inspection Agency)

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]                 These reasons follow the hearing of an application for judicial review of a decision of a member of the Public Service Staff Relations Board (the "Adjudicator") made pursuant to section 92 of the Public Service Staff Relations Act^[1]. The decision under review is dated the 14^th of September, 2001. The relevant portions of section 92 of the Public Service Staff Relations Act read 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,

...

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.

...

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;

...

(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.

...

[2]                 The Adjudicator allowed, in part, only the Applicant's request for payment of overtime worked outside his normal workday hours. More specifically, while the Applicant had requested that he be paid overtime for work performed between 4:15 a.m. and 6:00 a.m. each workday from the 1^st of May, 2000, the Adjudicator directed the payment of overtime only for work performed between 4:15 a.m. and 4:30 a.m.

BACKGROUND

[3]                 The matter before the Adjudicator proceeded on the basis of an agreed statement of facts from which the following background is drawn.

[4]                 At all relevant times, the Applicant was employed as a veterinarian by the Canadian Food Inspection Agency. Once again at all relevant times, he was the Acting Veterinarian in Charge at a facility in Brampton, Ontario, which slaughtered and processed chickens for Canadian consumers and for export to the United States.

[5]                 The Applicant was covered by the terms of a collective agreement between the Canadian Food Inspection Agency and the Professional Institute of the Public Service of Canada regarding the Veterinary Medicine Group Bargaining Unit (the "Collective Agreement").

[6]                 From sometime in the mid-1990s, the Applicant's workday commenced at 5:30 a.m. and ended at 2:00 p.m. with a 30 minute unpaid meal break. While the Applicant was working those hours, he was remunerated for seven and one-half (7 ½) hours at "straight time" and for ½ hour at the overtime rate of one and one-half (1 and ½) times straight time. Sometime in the spring or early summer of 2000, the Applicant's workday was modified so his start time was 4:15 a.m. and his finishing time was 12:30 p.m., which workday, once again, included a thirty (30) minute unpaid meal break. It was the Applicant's pay for his hours of employment that began sometime in the spring or early summer of 2000 that was before the Adjudicator.

THE RELEVANT PROVISIONS OF THE COLLECTIVE AGREEMENT

[7]                 Article 7.01 of the Collective Agreement defines, among other terms, "overtime" for the purposes of the Collective Agreement, to mean "...work required by the Employer, to be performed by the employee in excess of the employees' daily hours of work."

[8]                 Article B1 dealing with hours of work provides that it does not apply to VM Group employees on shift work. The Applicant was at all relevant times a member of the VM Group.

[9]                 Clause B1.02, entitled Non-Shift Work, provides as follows:

Subject to Article B2, the normal work week shall be thirty-seven and one-half (37 ½) hours and the normal work day shall be seven and one-half (7 ½) consecutive hours, exclusive of a lunch period, between the hours of 6:00 a.m. and 6:00 p.m. The normal work week shall be Monday to Friday inclusive.

[10]            Article B2 deals with shift work. Clause B2.01(a) provides:

(a)             When, because of operational requirement, hours of work are scheduled for employees on a rotating or irregular basis, they shall be scheduled so that employees work an average of seven and one-half (7 ½) hours per day and thirty-seven and one-half (37 ½) hours per week exclusive of meal breaks.                                                                                   [emphasis added]

[11]            The Collective Agreement provides for no hours of work that are not either non-shift work or shift work.

[12]            Article B3 dealing with overtime provides that employees required by the Employer to work overtime shall be compensated at the rate of time and one-half for each hour of overtime worked, calculated on the basis of each completed period of fifteen (15) minutes.

THE DECISION UNDER REVIEW

[13]            The central paragraph of the decision under review, for the purposes of this application, is the following:

I come to the conclusion that the new schedule for [the Applicant], starting in May 2000, has to be considered as shift work following Article B2 of the collective agreement. The wording of the "Non-Shift Work" clause (B1.02) states that the normal work day shall be between the hours of 6:00 a.m. and 6:00 p.m. and cannot include a schedule outside this time frame. The new schedule of [the Applicant] has a start time of 4:30 a.m. and a finishing time of 12:30 p.m. and is outside the 6:00 a.m. and 6:00 p.m. timeframe for non-shift work as defined in clause B1.02.    A work schedule which does not come under the definition of "Non-Shift Work" under clause B1.02 is, in my view, shift work under Article B2 of the collective agreement.

The Adjudicator subsequently went on to deal the fifteen (15) minute period that the Applicant worked each working day between 4:15 a.m. and 4:30 a.m. His disposition with respect to that fifteen (15) minute period in each working day was not before the Court on this application.

[14]            In support of his foregoing conclusion, the Adjudicator relied on the following passage from Zirpdji v. Canada (Treasury Board)^[2], a decision of the Canada Public Service Staff Relations Board dated the 13^th of May, 1976:

...Any work which does not come under the definition of day work under clause 25.02 is in my view shift work under clause 25.06 and would come within the meaning of the words "on a rotating or irregular basis" in accordance with what I deem to be the intention of the parties at the time they signed the agreement, having regard to all the provisions thereof... .

[15]            The Decision-Maker commented on the foregoing quotation in the foregoing paragraph:

This decision was endorsed by the Public Service Staff Relations Board on an application by the grievors to the Board under section 23 of the Public Service Staff Relations Act, as it then was, which permitted the reference of the decision of an adjudicator to the Board on a question of law or jurisdiction ... . In Freitag..., adjudicator Kenneth E. Norman stated that the sweeping proposition upon which the decision in Savard and Zirpdji ... rests, admits of no exception. I share his opinion and, as expressed in paragraphs 22 and 23, the grievor was performing shift work after May 2000.                                                                           [citations omitted]

THE ISSUES

[16]            Before the Court, counsel were in agreement that the issues on this application for judicial review were the following: first, the appropriate standard of review; and secondly, whether, against the appropriate standard of review, the Adjudicator made a reviewable error in deciding as he did.

ANALYSIS

           a)         Standard of Review

[17]            In Barry v. Canada (Treasury Board)^[3], Justice Robertson, for the Court, wrote at paragraph [3]:

In our respectful view, the standard of review adopted by the Motions judge is contrary to the teachings of the Supreme Court. It is true that prior to the repeal of the privative clause, that court had held in Canada (Attorney General) v. Public Service Alliance of Canada, ... that the appropriate standard of review for decisions of an adjudicator acting under the Act was whether the decision was "patently unreasonable" . In our view, nothing has changed by virtue of the repeal of the privative clause. In United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., ..., Sopinka , J. writing for the court, held that even where there is no privative clause the standard of review for arbitral awards which involve the interpretation of collective agreements is circumscribed by the concept of patently unreasonable:

...

                                                                                                                 [citations omitted]

It was not in dispute before me that the decision here under review is an arbitral award involving the interpretation of a collective agreement.

[18]            In Green v. Canada (Treasury Board)^[4], Justice Sharlow, for the Court, wrote at paragraphs [7] and [8]:

In a judicial review of the decision of an adjudicator under the Public Service Staff Relations Act, the appropriate standard is patent unreasonableness: ... .Thus, the adjudicator's decision must stand unless it is "clearly irrational, that is to say evidently not in accordance with reason" ... .

A decision may be patently unreasonable if, for example, it is unsupported by evidence or if it is based on unsound reasoning. ...                                                                                                                                [citations omitted, emphasis added]

[19]            Finally, as recently as the 3^rd of April of this year, Justice Iacobucci commented on the concept of "patent unreasonableness" in Law Society of New Brunswick v. Ryan^[5]. At paragraph [52] of his reasons on behalf of the Court, he wrote:

... A patently unreasonable decision has been described as "clearly irrational" or "evidently not in accordance with reason" ... . A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand.                                                                                                     [citations omitted]

           b)         Reviewable Error

[20]            Counsel for the Applicant urged that the decision under review was, in the words of Justice Sharlow in Green, supra, "...based on unsound reasoning" and that against the guidance just quoted so recently provided by the Supreme Court of Canada, was a decision that "...is so flawed that no amount of curial deference can justify letting it stand." Counsel urged that, while the Applicant's hours of work for the period of time in issue were certainly not between the hours of 6:00 a.m. and 6:00 p.m. so as to constitute non-shift work within the terms of the Collective Agreement, neither were they "...hours of work ... scheduled ... on a rotating or irregular basis..." so as to fall within the concept of shift work. Thus, he urged, they were consecutive hours of work, scheduled on a regular basis, five (5) days a week, all within the normal work week. As such, he urged they were indeed non-shift work with the portion of the Applicant's regularly scheduled hours of work preceding 6:00 a.m. on each work day, hours that should be compensated at the overtime rate provided for in the Collective Agreement.

[21]            By contrast, counsel for the Respondent urged that such an interpretation would produce an anomalous result. If the Applicant's hours of work, or those of any other employee covered by the Collective Agreement were, for example, scheduled on a regular basis, five (5) days a week during the normal work week between 6:30 p.m. and 4:30 a.m. inclusive of a one-half (½) hour unpaid meal period, on the basis of the interpretation urged on behalf of the Applicant, the employees' regularly scheduled seven and one-half (7 ½) hour workday would all be paid at the overtime rate. Counsel urged that, while in such a circumstance, a shift premium might well be justified, overtime pay could not be.

[22]            I am satisfied that the decision under review was, against a standard of patent unreasonableness, open to the Adjudicator. The words in the provision of the Collective Agreement dealing with shift work "...scheduled ... on a rotating or irregular basis, ..." must be read in a manner that gives meaning to the word "irregular" that is different from the concept of "...a rotating... basis". I am satisfied that the word "irregular", in its ordinary meaning, supports the concept of hours outside the "regular" hours for non-shift work, those hours being 6:00 a.m. to 6:00 p.m. Certainly, to a significant degree, the Applicant's regularly scheduled hours of work were irregular in the sense of being significantly outside of the regular hours of work. I am satisfied that this interpretation is entirely consistent with the words from Zirpdji, supra, quoted and relied on by the Adjudicator.

[23]            Counsel for the Applicant quite properly urged that the facts underlying the Zirpdji decision were very different than those before the Court. With this submission I agree. That being said, the generalized words from that decision relied on by the Adjudicator are, I am satisfied, apt on the facts of this matter.

CONCLUSION

[24]                Based upon the foregoing brief analysis, against a standard of review of patent unreasonableness, I am satisfied that the Adjudicator made no reviewable error in arriving at the decision that he did. I conclude that his decision was not based on "unsound reasoning". It is not a decision that "...is so flawed that no amount of curial deference can justify letting it stand."

[25]            In the result, this application for judicial review will be dismissed. Neither party sought costs. There will be no order as to costs.

_____________________________

         J.F.C.C.

Ottawa, Ontario

June 20, 2003

                         FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-1827-01

STYLE OF CAUSE: PIOTR PIOTROWSKI v. ATTORNEY GENERAL OF

CANADA

PLACE OF HEARING:                                   OTTAWA

DATE OF HEARING:                                     JUNE 10, 2003

REASONS FOR ORDER :                           GIBSON, J.

DATED:                      June 20, 2003

APPEARANCES:

DOUGALD BROWN                                                     FOR THE APPLICANT

JOHN JAWORSKI                                             FOR THE RESPONDENT

SOLICITORS OF RECORD:

NELLIGAN O'BRIEN PAYNE LLP                 FOR THE APPLICANT

OTTAWA

MORRIS ROSENBERG                                                 FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL

OF CANADA