Dufour v. Canada (Attorney General), docket T-423-95

                                                     T-423-95

OTTAWA, ONTARIO, MAY 8, 1996

BEFORE: PINARD J.

IN RE an application to review and set aside under subsection 18(1) and section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended;

AND IN RE the decision rendered on January 26, 1995 by Board Member Marguerite-Marie Galipeau, an adjudicator appointed under section 93 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (File No.: 166-2-25151)

B E T W E E N:

                     PAQUERETTE DUFOUR,

                                                   Applicant,

                           - and -

                 ATTORNEY GENERAL OF CANADA

                    (Agriculture Canada),

                                                  Respondent.

                          O R D E R

The application for judicial review of the decision rendered on January 26, 1995 by a member of the Public Service Staff Relations Board acting as an adjudicator in respect of a grievance referred to adjudication under section 92 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, is dismissed.

                                                  YVON PINARD     

                                                           J.         

Certified true translation

Stephen Balogh

                                                     T-423-95

IN RE an application to review and set aside under subsection 18(1) and section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended;

AND IN RE the decision rendered on January 26, 1995 by Board Member Marguerite-Marie Galipeau, an adjudicator appointed under section 93 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (File No.: 166-2-25151)

B E T W E E N:

                     PAQUERETTE DUFOUR,

                                                   Applicant,

                           - and -

                 ATTORNEY GENERAL OF CANADA

                    (Agriculture Canada),

                                                  Respondent.

                      REASONS FOR ORDER

PINARD J.

This application for judicial review concerns the decision rendered on January 26, 1995 by a member of the Public Service Staff Relations Board acting as an adjudicator in respect of a grievance referred to adjudication under section 92 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35.

The applicant is an employee of the federal Department of Agriculture and has been performing the duties of a Veterinarian VM-01 at La Malbaie since June 1990. Between February 1991 and August 1992, she worked on an acting basis as a Veterinarian VM-02 at Baie St-Paul for some 158 days, usually at the rate of two or three days a week. On July 20, 1992, she presented a grievance at the first level of the grievance process in which she contested the employer's decision to deny her acting pay for the period since 1991 during which she worked as a Veterinarian VM-02 at Baie St-Paul. The grievance related to the interpretation and application of the master agreement between Treasury Board and the Professional Institute of the Public Service of Canada, and more specifically to clause 46.09 thereof, which reads as follows:

46.09 Acting Pay

When an employee is required by the Employer to substantially perform the duties of a higher classification level on an acting basis for the required number of 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 in which he acts.

When a day designated as a paid holiday occurs during the qualifying period, the holiday shall be considered as a day worked for the purpose of the qualifying period;

(a)     The required number of consecutive working days referred to in clause 46.09 is as follows:

. . . ten (10) consecutive working days for the VM Group, levels 1-3. . . .

It is necessary to reproduce the following extract from the adjudicator's decision dismissing the applicant's grievance:

[translation]

In this case, the burden of proof was on the employee, and it is my view that she has failed to discharge it.

According to the table (Exhibit A-2) showing the days on which the employee performed "the duties of a higher classification level" (VM-02) "on an acting basis", the employee worked, on the whole and without exception, a minimum of two days a week on an acting basis during the period in question (from January 1991 to August 1992).

However, there is no evidence that she worked on an acting basis on ten "consecutive" days without receiving acting pay. Instead, it can be seen from the evidence that she worked two, three or four days a week on an acting basis, after which she returned to her substantive position (VM-01).

Prima facie, it seems to me that the intention of the parties in using the word "consecutive" was that the ten working days must follow one another, that is, that they must be "consecutive".

The word "consecutive" is not defined in the master agreement. What is its ordinary meaning? The Petit Robert dictionary (1988 edition) defines "consécutif" as follows: "1. Se dit de choses qui se suivent dans le temps (surtout), dans l'espace ou selon un ordre notionnel. Pendant six jours consécutifs. Des période (sic) consécutives d'activité et de détente. Des neurones consécutifs. Deux angles consécutifs. Nombre consécutifs; valeur consécutives".

The Nouveau Petit Robert (1993 edition) defines "consécutif" as follows: "1. Qui se suivent immédiatement dans le temps, ou (moins cour.) dans l'espace ou selon un ordre notionnel. Il a plu pendant six jours consécutifs (cf. D'affilée, de suite). Des périodes consécutives d'activité et de détente -- successif. Deux angles consécutifs. Nombres consécutifs; valeurs consécutives."

It should be noted that the word "consécution", which shares the same root, is defined as follows: "1. Didact. Suite, enchaînement. Consécution de sons, d'images."

As for the adverb "consécutivement", it is defined as follows: "Immédiatement après; sans interruption -- successivement. Il eut consécutivement deux accidents, coup sur coup; à la file. Trois termes pris consécutivement dans une série. . . ."

The Petit Larousse dictionary (1991 edition) defines "consécutif" as follows: "1. Qui se suit immédiatement dans le temps, dans l'espace ou dans l'ordre numérique; successif. Avoir la fièvre trois jours consécutifs." It defines "consécution" and "consécutivement" in the same way as the above definition from the Petit Robert.

The French version of clause 46.09 also uses the word "consécutif". The Concise Oxford Dictionary (seventh edition) defines it as follows: "consecutive: following continuously; proceeding in logical sequence". Webster's Ninth New Collegiate Dictionary defines "consecutive" as follows: "following one after the other in order: successive".

As for the New Shorter Oxford English Dictionary, it defines "consecutive" as follows: "1. Following continuously; following one's or its predecessor in uninterrupted sequence. . . ."

In my view, I must give the word "consecutive" its ordinary meaning. It seems to me that the ordinary meaning of the word implies a lack of interruption.

Furthermore, I agree with counsel for the employer that if I were to give "consecutive" the meaning suggested by the employee, an employee working on an acting basis one day a month over a twelve-month period would accordingly be entitled to acting pay. In my view, that is not what the parties intended.

Having said this, it seems normal to me that an employee who works two or three days a week every week on an acting basis would consider it more equitable to receive acting pay as a result. However, this reason alone is in my opinion insufficient to justify my extending the word "consecutive" beyond its ordinary meaning.

In view of this conclusion, I will not rule on the time issue.

For these reasons, the grievance is dismissed.

What is in issue in this Court is not the adjudicator's findings of fact but her interpretation of clause 46.09 of the collective agreement. Although she agreed that it was only on an acting basis that she was performing the duties of a Veterinarian VM-02 at Baie St-Paul, the applicant submitted that due to the regularity of this particular work, the days, during the period in question, of annual leave, sick leave and storm leave and those reserved for professional training should all be considered days worked for the purposes of establishing the required number of consecutive working days specified in clause 46.09, supra. More specifically, the applicant complained that the adjudicator had considered the dictionary definitions of the word "consecutive" used in the provision while ignoring the context in which the word was used. As for the respondent, although agreeing that days of leave granted by the employer do not interrupt the required number of ten consecutive working days, he nevertheless submitted that such leave cannot be considered days worked for the purposes of establishing that period, since clause 46.09 provides for only one exception in that respect, namely days designated as paid holidays that occur during the qualifying period.

Analysis

In my view, this is a case in which the Court must defer to the decision of the administrative tribunal in question. On the subject of curial deference, I intend, as I did in two recent decisions,^[1] to refer to the authorities that must in my view be applied. The Supreme Court of Canada, per Cory J., said the following in Canada (A.G.) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at page 961:

In expressing the reluctance courts should feel in interfering in decisions of administrative tribunals, McLachlin J. echoed the dicta of Dickson C.J. in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455. Writing for a unanimous Court Dickson C.J. stated at pp. 464-65:

A restrained approach to disturbing the decisions of specialized administrative tribunals, particularly in the context of labour relations, is essential if the courts are to respect the intentions and policies of Parliament and the provincial legislatures in establishing such tribunals. . . .

A reviewing court, whether under s. 28(1)(b) of the Federal Court Act, or under the common law principles of judicial review, should not interfere with the decision of a statutory decision maker in a case such as this unless the statutory decision maker makes a mistake of law, such as addressing his or her mind to the wrong question, applying the wrong principle, failing to apply a principle he or she would have applied, or incorrectly applying a legal principle. [Emphasis added.]

In summary, the courts have an important role to play in reviewing the decisions of specialized administrative tribunals. Indeed, judicial review has a constitutional foundation. See [1981] 2 S.C.R. 220">Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220. In undertaking the review courts must ensure first that the board has acted within its jurisdiction by following the rules of procedural fairness, second, that it acted within the bounds of the jurisdiction conferred upon it by its empowering statute, and third, that the decision it reached when acting within its jurisdiction was not patently unreasonable. On this last issue, courts should accord substantial deference to administrative tribunals, particularly when composed of experts operating in a sensitive area.

Going on to explain what is meant by "patently unreasonable", Cory J. wrote the following:

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 reasons. 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.

It is true that the decision of the administrative tribunal in Canada (A.G.) v. Public Service Alliance of Canada was protected by a broad privative clause, unlike that in the case at bar. That same year, however, in United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, 153 N.R. 81, the Supreme Court of Canada held that judicial deference should be accorded to the decisions of arbitrators interpreting a collective agreement even in the absence of a privative clause. At pages 337-338, Sopinka J. stated the following:

In a number of past decisions, this Court has indicated that judicial deference should be accorded to the decisions of arbitrators interpreting a collective agreement even in the absence of a privative clause. For example, in [1980] 1 S.C.R. 245">Douglas Aircraft Co. of Canada v. McConnell, [1980] 1 S.C.R. 245, Estey J. commented, at p. 275, with the rest of the Court concurring on this point, that:

. . . the law of review has evolved, even in the absence of a privative clause, to a point of recognition of the purpose of contractually-rooted statutory arbitration: namely, the speedy, inexpensive and certain settlement of differences without interruption of the work of the parties. The scope of review only mirrors this purpose if it concerns itself only with matters of law which assume jurisdictional proportions.

Although this passage might be taken to suggest that an arbitrator's decision on any question of law may be immune from review, I am of the view that it refers to questions of law in interpreting the collective agreement and not the interpretation of a statute or a rule of common law. I am uncertain as to what is meant by "jurisdictional proportions" in this context as there is no privative clause requiring that the jurisdictional limits of the tribunal be ascertained in order to determine whether a particular decision is immune from review. I assume, however, that Estey J. was merely following the language of [1979] 2 S.C.R. 227">Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 ("CUPE"), and like cases of the time which did involve privative clauses, and that what he is referring to is the policy of deference with respect to matters relating to the interpretation of collective agreements which is the stuff of the "differences" to which he refers.

Shortly after this, Sopinka J. added the following at pages 340-341:

Once it has been determined that curial deference to a particular decision of a tribunal is appropriate, the tribunal has the right to be wrong, regardless of how many reviewing judges disagree with its decision. A patently unreasonable error is more easily defined by what it is not than by what it is. This Court has said that a finding or decision of a tribunal is not patently unreasonable if there is any evidence capable of supporting the decision even though the reviewing court may not have reached the same conclusion (Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, at pp. 687-88), or, in the context of a collective agreement, so long as the words of that agreement have not been given an interpretation which those words cannot reasonably bear (Bradburn, supra, per Laskin C.J., at p. 849). What these statements mean, in my view, is that the court will defer even if the interpretation given by the tribunal to the collective agreement is not the "right" interpretation in the court's view nor even the "best" of two possible interpretations, so long as it is an interpretation reasonably attributable to the words of the agreement. Or, as stated by Dickson J. in CUPE, at p. 237:

. . . was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?

See also PSAC No. 2 (reasons of Cory J.).

In Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230, at pages 250-251, La Forest J. also held that special consideration must be shown to an arbitrator's expertise in questions relating to the interpretation of collective agreements:

. . . This Court has stated in previous cases that courts should, as a matter of policy, defer to the expertise of the arbitrator in questions relating to the interpretation of collective agreements; see [1980] 1 S.C.R. 178">Volvo Canada Ltd. v. U.A.W., Local 720, [1980] 1 S.C.R. 178 and [1980] 1 S.C.R. 245">Douglas Aircraft Co. of Canada v. McConnell, [1980] 1 S.C.R. 245. This development is traced in the dissenting reasons of Wilson J. in National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at pp. 1340-42. It is clear that an arbitrator has jurisdiction stricto sensu to interpret the provisions of a collective agreement in the course of determining the arbitrability of matters under that agreement. In that case the arbitrator is acting within his or her "home territory", and any judicial review of that interpretation must only be to a standard of patent unreasonableness.

Finally, in Pezim v. B.C. (Superintendent of Brokers), [1994] 2 S.C.R. 557, Iacobucci J. considered the spectrum of standards developed by the courts for determining the applicable standard of review. He wrote the following at pages 589-591:

From the outset, it is important to set forth certain principles of judicial review. There exist various standards of review with respect to the myriad of administrative agencies that exist in our country. The central question in ascertaining the standard of review is to determine the legislative intent in conferring jurisdiction on the administrative tribunal. In answering this question, the courts have looked at various factors. Included in the analysis is an examination of the tribunal's role or function. Also crucial is whether or not the agency's decisions are protected by a privative clause. Finally, of fundamental importance, is whether or not the question goes to the jurisdiction of the tribunal involved.

Having regard to the large number of factors relevant in determining the applicable standard of review, the courts have developed a spectrum that ranges from the standard of reasonableness to that of correctness. Courts have also enunciated a principle of deference that applies not just to the facts as found by the tribunal, but also to the legal questions before the tribunal in the light of its role and expertise. At the reasonableness end of the spectrum, where deference is at its highest, are those cases where a tribunal protected by a true privative clause, is deciding a matter within its jurisdiction and where there is no statutory right of appeal. See [1979] 2 S.C.R. 227">Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1089 (Bibeault), and Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756.

At the correctness end of the spectrum, where deference in terms of legal questions is at its lowest, are those cases where the issues concern the interpretation of a provision limiting the tribunal's jurisdiction (jurisdictional error) or where there is a statutory right of appeal which allows the reviewing court to substitute its opinion for that of the tribunal and where the tribunal has no greater expertise than the court on the issue in question, as for example in the area of human rights. See for example Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, and University of British Columbia v. Berg, [1993] 2 S.C.R. 353.

It should be mentioned that the same judge also held, at pages 591-592, that the existence of a privative clause is not conclusive in determining the applicable standard of review:

Consequently, even where there is no privative clause and where there is a statutory right of appeal, the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal's expertise. This point was reaffirmed in United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316 (Bradco), where Sopinka J., writing for the majority, stated the following at p. 335:

. . . the expertise of the tribunal is of the utmost importance in determining the intention of the legislator with respect to the degree of deference to be shown to a tribunal's decision in the absence of a full privative clause. Even where the tribunal's enabling statute provides explicitly for appellate review, as was the case in Bell Canada, supra, it has been stressed that deference should be shown by the appellate tribunal to the opinions of the specialized lower tribunal on matters squarely within its jurisdiction.

On the other side of the coin, a lack of relative expertise on the part of the tribunal vis-à-vis the particular issue before it as compared with the reviewing court is a ground for a refusal of deference.

In Attorney General of Canada v. Mervin James Wiseman,^[2] my colleague Cullen J. of the Trial Division of this Court considered it sufficient to say that only decisions of this kind that are not supportable by the evidence are subject to intervention by the courts:

In my opinion, having considered the criteria referred to above and the cases from the Supreme Court dealing with the standard of review, I find that the decision of the arbitrator in the case at bar should be accorded considerable or significant curial deference, particularly since it concerns a matter squarely within the scope of the arbitrator's jurisdiction and special expertise. Although I was unable to come up with a pat phrase -- such as "patently reasonable" -- to describe the kind of decision that demands judicial intercession, it is sufficient to say that only decisions not supportable by the evidence are subject to intervention.

In the case at bar, the specialized nature of the administrative tribunal is not in dispute: the decision was made by an adjudicator in her area of expertise, the interpretation of a clause from a collective agreement. Although the Public Service Staff Relations Act, under which the adjudicator made her decision, ceased to contain a privative clause on June 1, 1993, it still does not provide for an appeal from the adjudicator's decision. It should be noted that the adjudicator's findings of fact are not really in dispute, which is easy to understand, as the decision was clearly based on significant evidence in the record and on the applicant's testimony before the adjudicator. As we know, in issues related to the assessment of the facts and to credibility, it is not open to this Court to substitute its decision for that of the adjudicator where, as in the case at bar, the applicant fails to prove that the adjudicator based her decision on an erroneous finding of fact that she made in a perverse or capricious manner or without regard for the material before her.

The adjudicator had to interpret clause 46.09 of the collective agreement in light of all the other provisions of the agreement, including those that clarify the intention of the parties. The applicant has failed to satisfy me that the adjudicator's interpretation thereof conflicts with those other provisions. Furthermore, the second paragraph of clause 46.09 provides for an exception to the method to be applied to establish the qualifying period for acting pay by stating that a paid holiday is a day worked. It is therefore logical to conclude that the qualifying period is calculated solely on the basis of consecutive days worked. In these circumstances, the adjudicator's interpretation that days of leave other than days designated as paid holidays, like days worked in the substantive position, are not included in establishing the qualifying period does not seem unreasonable to me.

As a result, in view of the law and the facts, it would be inappropriate, especially in a case like this requiring a high standard of judicial review, to intervene in the decision of an adjudicator who has, within the statutory limits of jurisdiction, interpreted a collective agreement with sufficient rationality on the basis of the facts before her and without offending the principles of natural justice or procedural fairness.

The application for judicial review must accordingly be dismissed.

OTTAWA, Ontario

May 8, 1996

                                                  YVON PINARD     

                                                           J.         

Certified true translation

Stephen Balogh

FEDERAL COURT OF CANADA

TRIAL DIVISION

Names of counsel and solicitors of record

Court No.:               T-423-95

Style of cause:          Paquerette Dufour -and- Attorney General of Canada (Agriculture Canada)

Place of hearing:        Ottawa, Ontario

Date of hearing:         May 6, 1996

Reasons for judgment by:      Pinard J.

Dated:                   May 8, 1996

APPEARANCES:

Sean T. McGee                                 for the Applicant

Roger Lafrenière                             for the Respondent

SOLICITORS OF RECORD:

Nelligan Power                                for the Applicant

Ottawa, Ontario

George Thomson                               for the Respondent

Deputy Attorney General of Canada

Ottawa, Ontario