Date: 20071010
Docket: T-2240-06
Citation: 2007
FC 1038
Ottawa, Ontario, October 10, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
GERALD
WRY, GAVEN LEWIS and DANIEL AMUNDSON
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The
applicants received summonses to attend a Public Service Labour Relations Board
(PSLRB) adjudication hearing in relation to a co-worker. When they claimed
overtime pay and expenses, the employer denied their claims. They grieved and
their grievances were denied. They referred the matter to adjudication. PSLRB
Adjudicator Dan Butler upheld the employer’s denial of the claims.
[2] The
applicants seek judicial review of the adjudicator’s decision and assert that his
interpretation of the relevant article of the Collective Agreement is patently
unreasonable. They contend that the adjudicator’s interpretation cannot be
supported rationally by the grammatical and ordinary language of the relevant
article, or the Collective Agreement generally. For the reasons that follow, I
conclude that the adjudicator’s decision was not patently unreasonable.
Background
[3] The
applicants are correctional officers at a federal medium-security institution
at Dorchester, New Brunswick. Their employment is
governed by a Collective Agreement between Treasury Board and the Union of
Canadian Correctional Officers.
[4] On
October 18, 2005, the applicants attended an adjudication hearing regarding
another correctional officer (the Rose adjudication). Summonses had been
issued, on behalf of the grievor, by the chairperson of the PSLRB. Each of the
applicants was scheduled for a day of rest on October 18th. Based
on article 23.01 of the Collective Agreement, the applicants claimed overtime
pay and expenses with respect to their attendance at the hearing. As noted
earlier, the employer denied the claims and their grievances were dismissed.
The applicants referred the matter to adjudication under paragraph 209(1)(a) of
the Public Service Labour Relations Act, S.C. 2003, c. 22
(PSLRA). PSLRB member Dan Butler was appointed adjudicator pursuant to
paragraph 223(2)(d) of the PSLRA.
[5] At
the adjudication hearing on September 22, 2006, the applicants agreed that
Adjudicator Butler would render one common decision for the three grievances.
No evidence was called at the hearing. The parties agreed to rely on the three
individual grievances and the employer’s responses to them as the factual basis
for the hearing. The only exhibit was the Collective Agreement.
The Collective Agreement
[6] The pertinent articles of the Collective
Agreement are:
Article 2.01(1)
“leave” means authorized absence from
duty by an employee during his or her regular or normal hours of work (congé)
Article 14.06
Where operational requirements permit,
the Employer will grant leave with pay to an employee who is:
(a)
a party to
the adjudication,
(b)
the
representative of an employee who is a party to an adjudication,
and
(c)
a witness
called by an employee who is a party to an adjudication.
Article 23.01
An employee, who is required by subpoena
or summons to attend as a witness, or a defendant, or a plaintiff in an action
against an inmate or any other person, in any of the proceedings specified in
Clause “30.17”, sub-clause “C” of this Agreement, as a result of the employee’s
actions in the performance of his or her authorized duties, shall be considered
on duty and shall be paid at the applicable rate of pay and shall be reimbursed
for reasonable expenses incurred for transportation, meals and lodging as
normally defined by the Employer.
Article 30.17
The employer shall grant leave with pay
to an employee for the period of time he or she is required:
(a)
to be
available for jury selection;
(b)
to serve
on a jury;
(c)
by
subpoena or summons to attend as a witness in any proceeding held:
(i)
in or
under the authority of a court of justice or before a grand jury,
(ii)
before a
court, judge, justice, magistrate or coroner,
(iii)
before the
Senate or House of Commons of Canada or a committee of the Senate
or House of Commons otherwise than in the performance of the duties of the
employee’s position,
(iv)
before a
legislative council, legislative assembly or house of assembly, or any
committee thereof that is authorized by law to compel the attendance of witnesses
before it, or
(v)
before an
arbitrator or umpire or a person or body of persons authorized by law to make
an inquiry and to compel the attendance of witnesses before it.
The Decision
[7] The
adjudicator denied the applicants’ grievance on the basis that “the
adjudication hearing in question on October 18, 2005 was not ‘an action against
an inmate or any other person’ as contemplated by article 23.01”.
[8] In
arriving at his decision, the adjudicator made the following findings:
• The
phrase “an action against an inmate or any other person” is not completely
open-ended. It must have a meaning that makes sense within the context of
clause 23.01 and the overall architecture of the Collective Agreement;
• It
cannot be said that the employer, acting as a party to an adjudication hearing
where an employee is challenging the termination of his employment, can fall
within “any other person” as contemplated by the phrase: “an action against an
inmate or any other person” in Article 23.01;
• The
parties to the Collective Agreement intended that the wording of clause 23.01
apply to something specific to the work of correctional officers or specific to
their workplace. They intended that there are certain types of proceedings
that correctional officers may be compelled to attend, specific to their work,
that merit the special benefits associated with being accorded “on duty”
status;
• There
is nothing in a reference to adjudication contesting a disciplinary termination
that, per se, is specific to the work of correctional officers or their
workplace;
• To
accept the notion that attendance as a witness under summons at any and all of
the classes of proceedings outlined in clause 30.17(c) gives rise to an
entitlement under clause 23.01 equates to reading clause 23.01 as if “an action
against an inmate or any other person” were not included or had no
significance.
The Standard of Review
[9] The
parties jointly submit, based on Canada (Attorney General) v. Public
Services Alliance of Canada, [1993] 1 S.C.R. 941 (PSAC),
that the applicable standard of review is patent unreasonableness. PSAC
involved a decision of the Public Service Staff Relations Board, the
predecessor to the decision-making body in this case.
[10] There
is ample authority from the Federal Court and the Federal Court of Appeal
holding that, in circumstances where an adjudicator’s decision turns on the
interpretation of a provision of a collective agreement (and no external
statutes or constitutional issues are involved), the standard of review is
patent unreasonableness: Banton v. Canada (Treasury Board) (1995), 90
F.T.R. 222 (F.C.T.D.); Canada (Attorney General) v. Cleary
(1998), 161 F.T.R. 238 (F.C.T.D.); Barry v. Canada (Treasury Board)
(1997), 221 N.R. 237 (F.C.A.); Currie v. Canada (Canadian Customs and Revenue
Agency), [2007] 1 F.C.R. 471 (F.C.A.).
[11] The
reasonableness standard of review applied in Voice Construction Ltd. v. Construction
& General Workers’ Union, Local 92, [2004[ 1 S.C.R. 609 (Voice
Construction) is not appropriate in this case. The Federal Court of Appeal
noted, in Public Service Alliance of Canada v. Canada (Canadian Food
Inspection Agency) (2005), 343 N.R. 334 (F.C.A.), that an adjudicator of
the PSSRB is not an ad hoc adjudicator appointed by the parties. Rather
the adjudicator is an individual with institutional expertise. Additionally,
the Court determined that the question of whether the provisions of the
collective agreement are triggered on the facts of the case is one of mixed
fact and law.
[12] Unlike
the situation in Voice Construction, section 233 of the PSLRA contains a
privative clause regarding the decision of the adjudicator. Further, article
49.01(h) of the Collective Agreement contains a strong privative clause with
respect to the adjudicator’s determination.
[13] For
the foregoing reasons, I concur with the parties that the applicable standard
of review is that of patent unreasonableness.
Analysis
[14] The
applicants submit that the adjudicator’s decision was patently unreasonable
because it is at odds with the plain and literal meaning of the words used in
the article and with the scheme of the Collective Agreement. They claim that
the decision turns on the meaning attributed to the phrase “any other person”.
According to the applicants, the word “any” in article 23.01 refers to “any” of
the cases set out in article 30.17(c). In plain English, it cannot mean
anything else. The words simply mean what they say. The adjudicator’s
decision renders the clause meaningless and yields an absurd result.
[15] I
disagree with the applicants’ position. It is evident that the adjudicator
fully appreciated his task. He stated that the basis of his determination had
to begin with the words in article 23.01 and that he was required to give plain
meaning to the words. He was satisfied that an “adjudication hearing” was
among the classes of proceedings listed in article 30.17(c), as
cross-referenced in article 23.01. He defined the critical issue as “whether
an adjudication hearing can be ‘an action against an inmate or any other
person’ within the meaning of [article] 23.01”.
[16] After
analysing the defined issue, the adjudicator opined that it “stretches the
imagination to hold that the parties intended the words ‘any other person’ to
mean anyone or any entity ‘under the sun’”. Rather, its meaning had to be
discerned contextually within article 23.01 as well as the Collective
Agreement. He determined that the phrase “any other person” took its colour
from the word “inmate” as well as from the words “specific to the work of
correction officers or specific to their workplace”.
[17] The
adjudicator was not convinced that the employer, acting as a party to an
adjudication hearing where an employee was challenging the termination of his
employment, could be interpreted as being an “other person” within the meaning
of the phrase “inmate or any other person”. Further, there was nothing in a
reference to adjudication contesting a disciplinary termination that, per se,
was specific to the work of correctional officers or their workplace. While
the details and circumstances of a reference “might well reflect conditions
specific to corrections work”, the action of referring a termination decision
to adjudication itself did not.
[18] The
adjudicator did not accept that the phrase “as a result of the employee’s
actions in the performance of his authorized duties” indicated that the
proceeding must be “work-related” in the general sense. Notably, there was no
evidence before the adjudicator establishing that the adjudication in question
was, or could have been, specific to the work of correction officers, or
specific to their workplace. Hence, it is difficult to conceive that the
conclusion could have been otherwise.
[19] The
adjudicator left the door open as to whether an action against the employer
“could qualify in some circumstances” as specific to the correctional
workplace. Whether any such action could involve an adjudication hearing (that
would qualify for the purposes of article 23.01) also remained an open
question.
[20] Further,
the adjudicator specifically addressed the presence of the word “any” in
article 23.01. He did not accept that the mere presence of the word
constituted sufficient reason to conclude that the parties intended that
attendance as a witness under summons at any and all of the classes of
proceedings outlined in article 30.17(c) would give rise to an entitlement
under article 23.01. Meaning had to be given to the conditional or modifying
phrase “an action against an inmate or any other person”. Any other
interpretation would ignore the presence of the phrase or render it
insignificant.
[21] In
conclusion, the adjudicator determined that the most reasonable interpretation
of the cross-reference to “any of the proceedings specified in [article] 30.17,
sub-clause “C” of this Agreement”, consistent with the intent of the parties,
required that the action triggering court duty must also be “a proceeding
listed in article 30.17(c)(v)”. The cross-reference constituted a device used by
the parties for simplicity. While the drafting might have been clearer, the
words did not bear the meaning argued by the applicants.
[22] Returning
to the standard of review regarding PSLRB adjudicators’ decisions, curial
deference is the norm. It is for the applicants to establish that the decision
is patently unreasonable, that is, it is clearly irrational. This they have
failed to do.
[23] The
adjudicator had regard to the relevant provisions of the Collective Agreement
and to the specific impugned provision. He correctly identified his task,
analysed the issue, and provided cogent reasons justifying his determination.
Even in circumstances where the court might have interpreted the provision
differently (and I do not suggest that is the case here), absent a clearly
irrational result, judicial intervention is not warranted.
[24] Correctness
is not the test. The interpretation need only be a rational one. The
interpretation advanced by the adjudicator, in my view, is more rational than
that advanced by the applicants. In this respect, I note the respondent’s
submission that, on the applicants’ interpretation, the article would give the
applicants more benefits for a day of rest than for a day of duty.
[25] In the
result, the application for judicial review must be dismissed.
ORDER
THIS COURT
ORDERS THAT the application for judicial review is dismissed with costs to
the respondent.
“Carolyn
Layden-Stevenson”
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