Date: 20030627
Docket: T-238-02
Citation: 2003 FCT 807
OTTAWA, Ontario, Friday, this 27th day of June, 2003
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
KATHY BUNKA
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of an adjudicator appointed pursuant to the Public Service Staff Relations Act, R.S.C. 1985 c. P-35, as amended (the "Act"), denying the grievance of the applicant, who alleged that her employer, the Treasury Board (Department of Foreign Affairs and International Trade), violated the collective agreement by denying her acting pay.
FACTS
[2] The applicant is a foreign service officer with the Department of Foreign Affairs and International Trade and classified at the FS-01 group and level. On July 31, 1999, as part of a rotational assignment, she began substantively performing the duties of an FS-02 level employee on an acting basis. For reasons that will be set out below, she was not entitled to acting pay at the FS-02 level under the terms of the collective agreement in place in 1999. On August 31, 2000, a new collective agreement containing a clause that entitled the applicant to acting pay at the FS-02 level was signed between the Treasury Board and the Professional Association of Foreign Service Officers. As a result of this agreement, the applicant received acting pay at the FS-02 level from August 31, 2000 onward.
[3] The applicant states that the new collective agreement entitled her to acting pay at the FS-02 level starting on the date she commenced her acting appointment. She filed a grievance seeking back pay for the time period of July 31, 1999 to August 30, 2000, but it was denied by her employer. The Treasury Board took the position that the new collective agreement was only in force as of August 31, 2000 and did not apply retroactively. The matter proceeded to an adjudication under the Act. The issue before the adjudicator was whether the applicant was entitled to receive pay at the FS-02 level as of the date she commenced her acting appointment or as of the date of the new collective agreement was signed.
COLLECTIVE AGREEMENTS
[4] The relevant clause of the old collective agreement that dealt with acting pay was clause 42.11, which stated:
42.11 Acting Pay
An employee who is assigned to a posting abroad or an assignment in Canada, pursuant to a rotational pattern, is not entitled to acting pay pursuant to this clause by virtue of such assignment. However, if in the course of such an assignment he is required by the Employer to substantially perform and performs the duties of a position which is classified at a higher classification level on an acting basis for a period in excess of fifteen (15) consecutive working days, he shall be paid acting pay calculated from the date on which he commenced to act as if he had been appointed to that higher classification level for the period he acts.
[5] The relevant clauses of the new collective agreement are clauses 42.08 and 44.02. The relevant portions of these two clauses state:
42.08 Acting Pay
An employee who is required by the Employer to substantially perform and performs the duties of a position which is classified at a higher classification level on an acting basis for a period in excess of four (4) consecutive working days shall be paid acting pay calculated from the date on which he commenced to act as if he had been appointed to that higher classification level for the period he acts.
[...]
44.02 Unless otherwise expressly stipulated, this Agreement shall become effective on the date it is signed.
DECISION OF THE ADJUDICATOR
[6] The adjudicator began his decision with a review of the history of clause 42.08. He noted that the replacement of clause 42.11 was prompted by the Public Service Staff Relations Board's decision in Leduc and Treasury Board (Department of Foreign Affairs and International Trade), [1999] C.P.S.S.R.B. No. 109 (QL). In Leduc Vice-Chairperson P. Chodos determined that foreign service officers were only entitled to acting pay under clause 42.11 if they substantially performed the duties of a position at a higher classification level than that of the position which they had assumed by virtue of a rotational assignment. This applied even where the rotational position was classified at a higher level than the employee. For the applicant and other FS-01 officers assigned to perform FS-02 positions on a rotational basis, the decision meant that they were not entitled to acting pay for that assignment unless they substantially performed the duties of a position classified at a higher level than FS-02. The adjudicator concluded that clause 42.08 was designed to eliminate the exception made in clause 42.11 for foreign service officers participating in rotational assignments.
[7] The adjudicator then turned to interpreting clause 42.08. He held that the language of the new clause was "not ambiguous or unclear" and that extrinsic evidence did not need to be considered. He also noted that neither of the parties had submitted such evidence and concluded at page 11 of his decision:
Ms. Bunka was an FS-1 acting as an FS-2 on a rotational assignment as of July 31, 1999 and until the change through negotiations she was not entitled to acting due to the rotational aspect of her position. On the basis of the language of the relevant articles of the collective agreement, I find that they have no retroactive application.
In this case, Ms. Bunka is not entitled to acting pay prior to the date of signing of the collective agreement (August 31, 2000).
APPLICANT'S POSITION
[8] The applicant argues that despite his finding that the provisions were "not ambiguous or unclear", the adjudicator erred by looking to the history of the provision, the basis on which it was negotiated and how the previous provision would have been interpreted. She also argues that there is no issue of retroactivity because at the time she filed her grievance, clause 42.08 was contained in the collective agreement. Alternatively, if there is an issue of retroactivity, then the words "calculated from the date on which he commenced to act" contained in clause 42.08, expressly allow for retroactive application.
RESPONDENT'S POSITION
[9] The respondent contends that the extrinsic evidence the adjudicator is alleged to have relied upon was merely background information that served to explain the issue between the parties. Further, it argues that the standard of patent unreasonableness is applicable to the adjudicator's decision and that his interpretation of clause 42.08 was not an irrational one. The language of the new collective agreement was clear in stating that employees were not entitled to newly negotiated benefits for any time prior to the signing of the agreement.
ANALYSIS
[10] I agree fully with the respondent. The adjudicator simply reviewed the background
information that gave rise to the complaint at the outset of his decision and did not rely upon extrinsic evidence when he examined clause 42.08. Interpreting the terms of a collective agreement is a task within the scope of the adjudicator's jurisdiction and expertise, and the
question on judicial review is whether the adjudicator's interpretation was patently
unreasonable: United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316 at p. 337; and Barry v. Canada (Treasury Board) (1997), 221 N.R. 223 at para. 4 (F.C.A.). The adjudicator's decision in the case at bar was not patently unreasonable. Clause 42.08 does not mention a specific date at which it becomes effective and does not contain express language making it applicable to situations that existed prior to the signing of the new collective agreement. If the parties intended clause 42.08 to apply, override and reverse clause 42.11 of the old collective agreement for the time period the old collective agreement was in force, clause 42.08 should and would have expressly so provided. A retroactive effect will not be presumed unless clearly provided.
[11] The language of clause 42.08 can be contrasted with that of clause 42.03 of the new collective agreement, which provides an example of the type of language used to expressly apply a provision retroactively. It states in part:
42.03 Pay Ranges
(a) The pay ranges set forth in Appendix "A" shall become effective on the dates specified therein.
(b) Where the rates of pay set forth in Appendix "A" have an effective date prior to the date of signing of the Agreement the following shall apply:
(i) "retroactive period" for the purposes of sub-paragraphs (ii) to (v) means the period commencing on the effective date of the retroactive upward revision in rates of pay and ending on the day the Agreement is signed or when an arbitral award is rendered therefore;
[...]
[12] Accordingly, the effective date of clause 42.08 is governed by the general rule contained clause 44.02. This means that the applicant is not entitled to acting pay for the FS-02 level from July 31, 1999 to August 30, 2000. No error was committed by the adjudicator in making this finding.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed with costs.
"Michael A. Kelen" ______________________________
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-238-02
STYLE OF CAUSE: KATHY BUNKA v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: OTTAWA
DATE OF HEARING: JUNE 25, 2003
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: JUNE 27, 2003
APPEARANCES:
Mr. Andrew Raven FOR THE APPLICANT
Ms. Colleen Edwards FOR THE RESPONDENT
SOLICITORS OF RECORD:
Raven, Allen, Cameron & Ballantyne FOR THE APPLICANT
Ottawa, Ontario
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
FEDERAL COURT OF CANADA
Date: 20030627
Docket: T-238-02
BETWEEN:
KATHY BUNKA
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
AND ORDER
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