Date: 20080402
Docket: T-1244-07
Citation: 2008 FC 411
Ottawa, Ontario,
the 2nd day of April 2008
Present:
The Honourable Orville Frenette
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
YVES LAMOTHE, CLAUDE FAVREAU,
KATIE BERNARD, SONJA LAURENDEAU,
NORMAND BÉLAIR, PÂQUETTE DUFOUR,
CARL GAGNON, KARINE NADEAU,
JOCELYNE GAUTHIER, HÉLÈNE GAGNON
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application under section 18.1 of the Federal Courts Act, R.S.C.
1985, c. F-7 for judicial review of a decision of a grievance adjudicator, a
member of the Public Service Labour Relations Board, dated June 7, 2007, in which she determined that
the respondents were entitled to compensation for travel time when they
attended training courses.
[2]
The Attorney
General submits that the adjudicator exceeded her jurisdiction by awarding a
benefit that was not bargained in the collective agreement, and that was in
fact clearly excluded by the parties when the collective agreement was
negotiated.
I. Facts
[3]
The respondents
are all employees in the Veterinary Medicine Group bargaining unit and
veterinarians at the VM‑01 or VM‑02 level whose positions are
located within the Meat Hygiene Section or the Animal Health Section in the Quebec region.
[4]
Each
respondent was required to attend training sessions offered by their employer
in the spring of 2004. Those sessions were held outside their normal employment
area.
[5]
The
respondents applied for overtime for the time devoted to training in excess of
their normal hours of work and for travel time between their residences and/or
their accommodations and the training site.
[6]
The
respondents were compensated for time devoted to training in excess of their
normal hours of work. Their travel expenses were also covered under the Treasury
Board Secretariat of Canada’s Travel Directive. However, the employer refused
to cover travel time between their residences and/or their accommodations and
the training site.
[7]
On
April 1, 2005, the respondents each filed a grievance with the Public
Service Labour Relations Board.
II. Adjudicator’s Decision
[8]
The
grievances were heard on January 30,
2007, and the
adjudicator’s decision was released on June 7, 2007.
[9]
After
reviewing the facts and arguments submitted by the parties, the adjudicator examined
article B7.08 of the collective agreement. In her opinion, that provision was
unequivocal; under that clause, an employee who travels to attend courses or
training sessions is not entitled to compensation for travel time. However, she
believed that the employer had created an exception to that rule when it
required its employees to attend training.
[10]
In support
of that conclusion, the adjudicator noted that each grievance related to
mandatory training. She said that even though the employer had made known its
refusal to compensate employees for travel time, it had not offered them the
choice of not attending training. The adjudicator further noted that the
grievors had all been authorized to travel, their expenses were covered as a
work situation, and the purpose of the training was to increase their
professional skills in their field as veterinarians.
[11]
The
adjudicator stated that there were two consequences to the fact that the
training was mandatory. First, the employer recognized that the training was
tantamount to work for compensation purpose. Second, the employer accepted that
employees should be compensated under the rules that apply to any other type of
work-related travel.
[12]
The
adjudicator concluded that by agreeing to compensate employees for hours of
training exceeding their regular work schedule, the employer recognized that
training was akin to work. Accordingly, travel to attend training is one consequence
of the employer’s decision to have employees attend training. The adjudicator
was therefore of the opinion that the employees were entitled to compensation
for their travel under the same conditions as those that apply to their work.
[13]
The
adjudicator also considered other instances when the employer sent its
employees on training, to show that compensating employees for travel time was
not a practice completely divorced from normal procedures. For example, the
adjudicator reviewed clause C19 of the collective agreement, which provided for
overtime to be paid for time spent travelling to or from a conference where the
employee has attended the conference to represent the interests of the employer.
[14]
The
adjudicator then found that the employees were also entitled to be compensated
for time travelling between their accommodations and the training centre. On
that point, she noted that the time employees spend travelling from their
residences to their workplaces differs from the time they spend travelling to a
training activity, because in the latter case they must comply with the time of
departure and travel time as set by the employer and are not free to decide how
they will use their time. That was the adjudicator’s conclusion in Landry v.
Library of Parliament, [1993] P.S.S.R.B. No. 90, in which he held that
travel time required to attend a course at the employer’s request should be
compensated, given that the employee is putting his or her personal time under
the employer’s control.
[15]
The
adjudicator concluded by rejecting the employees’ argument that the doctrine of
estoppel applied to the facts of the case. In her opinion, there was no
evidence that the employees had agreed to attend training on the strength of
claims made by the employer of its intent to compensate them for their travel
time. Ambiguity respecting compensation for travel expenses incurred to attend
mandatory training had been resolved by the new provisions of the collective
agreement, and accordingly there was no longer any ambiguity.
[16]
For those
reasons, the grievances were allowed.
III. Issues
[17]
The
Attorney General stated the two following questions:
A. Did the
grievance adjudicator err in fact and law when she found that the employer had
created an exception to the clause in the collective agreement in the case of
employees who are required to attend training?
B. Did the
grievance adjudicator err in fact and law when she found that that employees’
travel between their accommodations and the training centre must be compensated
where the employer determines the mode of transport?
IV. Standard of Review
[18]
The
parties agreed that the applicable standard of review is patent
unreasonableness. However, the recent decision of the Supreme Court of Canada
in Dunsmuir v. New Brunswick,
2008 SCC 9, has abolished the patent unreasonableness standard and revised the
manner in which the standard of review is determined.
[19]
According
to Dunsmuir, the standard of review is determined contextually and calls
for consideration of the following factors: whether there is a privative
clause; the reason for the existence of the administrative tribunal based on
interpretation of its enabling statute, the nature of the question in issue and
the expertise of the administrative tribunal.
[20]
The
grievances were all filed before April 1, 2005. Under section 2 of the Public Service
Modernization Act, S.C. 2003, c. 22, the new Public Service Labour
Relations Act, 2003, c. 22, section 2 (the new Act) was proclaimed in
force and replaced the former Public Service Staff Relations Act, R.S.C.
1985, c. P-35 (the former Act). Under section 61 of the Public
Service Modernization Act, the grievances filed by the respondents were
decided under the former Act.
[21]
The former
Act contained a privative clause, in subsection 96(3), but expressly
excluded grievances such as these, which may be referred to adjudication under
section 92 of the Act. Accordingly, in the circumstances of this case, no
privative clause applies.
[22]
It is
settled law that the interpretation and application of a collective agreement,
including referrals under the former Act in which infringement of the former Act
is alleged, are within the Board’s area of expertise: Public Service
Alliance of Canada v. Canada (Canada Food Inspection Agency), 2005 FCA 366;
Canada (Attorney General) v. Grover, 2007 FC 28.
[23]
The nature
of the question in issue is strictly one of law. This Court must determine
whether the adjudicator’s decision created an exemption from the collective
agreement or whether the adjudicator exceeded her jurisdiction by making a
finding the effect of which was to amend the collective agreement.
[24]
While I recognize
the adjudicator’s expertise, the fact that there is no privative clause and
that the question is strictly a question of law suggest the need for less
deference. Accordingly, it is my opinion that the applicable standard of review
in this case is the correctness standard.
V. Analysis
[25]
The
Attorney General submits that the existence of a clear and unequivocal clause
in the collective agreement prohibits compensation for travel time, whether
training is akin to work or not. There is an important distinction between work
and travel; because the respondents were not working when they were travelling,
they were not entitled to compensation. The approach taken by the adjudicator
disregards a clear clause in the collective agreement, and she therefore exceeded
her jurisdiction by making a finding the effect of which was to amend the
collective agreement, contrary to section 96 of the former Act.
[26]
The
Attorney General also notes that while the adjudicator had regard to the fact
that the training was mandatory and their participation was in its interests,
the collective agreement creates no exception that would have the effect of
allowing compensation in those circumstances. On the contrary, the effect of
the finding is to add conditions that amend the clause. It is generally
accepted that the wording of agreements cannot be amended by interpretation;
the collective agreement must be read as a single coherent unit.
[27]
He adds
that the adjudicator’s analogy between article B7.08 and article C19.02
is wrong. That clause deals with travel time in the context of career
development and specifically provides for compensation. There is no specific
provision for compensation when the travel time is connected with training and
the fact that there is no such provision indicates that the parties intended to
rule it out.
[28]
In reply,
the respondents accept the clear wording of the clause in the collective
agreement providing that no compensation shall be paid for the time an employee
spends travelling to training courses. However, they suggest that the
adjudicator acknowledged an ambiguity in the wording of that clause and this
justified the use of various methods of interpretation in order to interpret
that article.
[29]
One of
those methods of interpretation is to refer to past practice. That requires
that the adjudicator be satisfied that there was a practice on the employer’s
part, that the practice interprets the clause in question and that the parties
acquiesced in the practice and accordingly accepted that interpretation.
[30]
The
respondents submit that the adjudicator was satisfied that the three
requirements were met in this case. The existence of a past practice was
established by the evidence given by Michel Gingras, a negotiator for the
Professional Institute of the Public Service. That evidence, which the employer
did not attempt to contradict, showed that the employer would pay compensation
for travel time when employees attended a training course at its request. In
addition, that practice and the interpretation of the collective agreement were
accepted by the respondents’ union. The analogy between clause B.7.08 and
clause C19.02 was merely an example.
[31]
For the
two reasons that follow, I cannot accept the respondents’ arguments. First, in
my opinion, the adjudicator’s decision is not based on the evidence of past
practice. Even if I were wrong on that point, the evidence submitted by the
respondents would hardly be satisfactory for establishing past practice.
[32]
Clause B7.08
provides as follows:
Compensation under this Article shall not
be paid for travel time to courses, training sessions, conferences and seminars
unless so provided for in the Article 18, Career Development.
[33]
That
clause is clear; an employee who travels for training will not be compensated
for travel time “to … training sessions”. I do not think the respondents are
contesting that conclusion.
[34]
However,
the adjudicator found that the employer had created an exception where it
required its employees to attend training. The respondents suggest that the
adjudicator was making up for ambiguity in the collective agreement by looking
to evidence of past practice.
[35]
I do not
share that opinion, since it is apparent on reading the adjudicator’s complete
decision that it is not based on an analysis of that nature. We should consider
the two dispositive paragraphs of the adjudicator’s decision:
[36] In my opinion, there were two
consequences to the employer's decision to have the employees attend training.
The first was to recognize that such training was tantamount to work for
compensation purposes; the second was to accept that employees should be
compensated under the rules that apply to any other type of work-related
travel. In this particular case, by accepting to compensate employees
for hours of training exceeding their regular work schedule, the employer
specifically recognized that training was akin to work. The employer is now
being inconsistent in dissociating travel time from this observation by
referring to other provisions of the collective agreement that prohibit the
compensation of travel time required for attendance at training. Since
training constitutes work, travel to and from the training site is one
consequence of the employer's decision to have employees attend training. The
grievors are therefore entitled to compensation for their travel under the same
conditions as those that apply to government business.
[Emphasis added.]
[36]
This
passage clearly shows that the adjudicator’s decision is essentially based on
the fact that the training was mandatory and that the employees were
compensated for training time outside their normal work hours. Nowhere in the
adjudicator’s analysis does she base her decision on the evidence that travel
time was compensated in the past.
[37]
The
adjudicator does note that in certain circumstances travel time for “an
employee who attends a conference or convention at the request of the Employer
to represent the interests of the Employer” may be compensated by the employer
under article C19 of the collective agreement. However, where there is a
clear clause prohibiting compensation for travel time, as in this case, I agree
with the Attorney General that this analogy is not particularly useful.
[38]
The
adjudicator clearly made the decision she considered to be fairest to the
parties. In so doing, however, she ignored the plain wording of the collective
agreement and did not do an adequate analysis to establish the existence of a
past practice.
[39]
In any
event, I am not satisfied that the evidence in the record would have been
sufficient to establish such a practice.
VI. Past Practice and Estoppel
[40]
The
doctrine dealing with the issue of past practice that can contradict specific
clauses of a collective agreement holds that certain stringent requirements
must be met. The evidence must show a practice over several years, and must
meet the following requirements:
(a) be repeated over several
years;
(b) be accepted by all of the
parties involved; and
(c) not be ambiguous or
disputed.
[41]
The legal
literature tells us that the testimony of one witness is insufficient to meet
those requirements (Brown and Beatty, article 3:4430, Canadian Labour
Arbitration, vol. 1, Aurora, The Cartwright Group, 2007).
VII. Estoppel
[42]
The
doctrine of estoppel (préclusion or fin de non recevoir) comes to
us from English common law; it is described as follows:
The principle, as I understand it, is
that where one party has, by his words or conduct, made to the other a promise
or assurance which was intended to affect the legal relations between them and
to be acted on accordingly, then, once the other party has taken him at his
word and acted on it, the one who gave the promise or assurance cannot
afterwards be allowed to revert to the previous legal relations as if no such
promise or assurance has been made by him…
Combe v. Combe, [1951] 2 K.B. 215 (Denning
L.J.)
[43]
Evidence
of past practice may be admitted to establish estoppel in the context of
collective agreements governing labour relations (Brown and Beatty p.72).
[44]
The
doctrine has been applied in labour law to employees’ compensation (see Excel
Forest Products Ltd. and I.W.A.-Canada, Loc. 2995 (Re), 100 L.A.C. (4th)
16, Ontario, J. Sarra, September 4, 2001).
[45]
Accordingly,
in order to establish past practice, the party alleging it must show its existence
persuasively, that is, “one or two occurrences will not normally constitute a
sufficient practice to be reliable”. On the contrary; “when arbitrators have
relied on a past practice, it typically will have been a uniform practice over
a number of years”: Brown and Beatty, article 3:4400.
[46]
The only
evidence submitted by the respondents on this point was the testimony of
Mr. Gingras. We saw in the literature cited supra that the
testimony of one witness on this point is insufficient.
[47]
Mr. Gingras
said that he received an email on December 23, 2003, in which the Human
Resources Branch confirmed that “employees shall not be paid overtime nor be
compensated for time spent travelling to courses or training sessions”.
[48]
On January 26, 2004, Mr. Gingras wrote to
the staff relations manager and suggested that the employer’s refusal showed
that it was contradicting itself. As evidence of the contradiction, he included
an email in which, he contended, the employer had agreed to pay overtime and
travel time in relation to a mandatory course taken by another employee in
February 2003.
[49]
Before the
adjudicator, Mr. Gingras explained that overtime and travel time had been
paid to employees in the past. It is impossible to verify that assertion,
because there is no record of Mr. Gingras’ testimony before this Court.
However, he repeated the statement in his affidavit, filed on September 14,
2007.
[50]
Even if I
were to accept Mr. Gingras’ contentions, he offered only one example of a
situation in which the employer apparently compensated an employee for travel
time. In addition, the email does not state the position held by the employee
in question; it is therefore impossible to confirm whether the employee was
covered by the same collective agreement as the respondents in this case.
[51]
In the affidavit,
Mr. Gingras seems to suggest that this was common practice on the
employer’s part. He gave no other examples of it, however.
[52]
I
acknowledge that the employer submitted no evidence on this point. However, the
employer has no onus of replying to the respondents when they are unable to
establish the existence of a common interpretation of the collective agreement.
On that point, I would adopt the wise words written in City of Trail and International Association
of Fire Fighters, Local 941
(1983), 10 L.A.C. (3d) 251:
[T]he past practices of the parties, no
matter how clear and prolonged, can never provide a jurisdictional basis for
arbitral amendment of the agreement. Beyond that, evidence of past practice,
and other kinds of extrinsic evidence, should not be seized upon as an
analytical “escape hatch”. Whether or not there is a body of extrinsic
evidence, the question is always the same: what was the common intention of the
parties when they expressed their bargain in the way in which they did?
[53]
Accordingly,
I find the adjudicator’s decision regarding the existence of an exception to
article B7.08 to be incorrect. That finding is sufficient for the purposes
of this application for judicial review. However, I will make the following
comments regarding another question raised by the Attorney General.
[54]
The
Attorney General submits that the adjudicator’s finding that compensation must
also be paid for travel time between the hotel and the training centre is
incorrect because she failed to have regard to article B7.02 of the collective
agreement. That clause provides for compensation when an employee travels
between his or her residence and workplace. The Attorney General argues that
the term “residence” cannot include a hotel where the employees are staying.
That interpretation is consistent with the interpretations of the English term
“residence” discussed in Mayoh et al. v. Treasury Board (Regional Economic
Expansion), P.S.S.R.B. file Nos. 166-2-8896-8914, March 6, 1981, and
the French definitions of the terms “domicile” and “résidence”.
[55]
In
addition, article B7.01 deals with compensation only where the employee
travels outside his or her headquarters area for the purpose of performing
duties. Accordingly, the Attorney General submits, the article concerning
travel time is not relevant where the employee has reached the place where he
or she is performing local duties or receiving training, because the
headquarters area is no longer the destination or point of departure.
[56]
The
Attorney General also notes that article B7.07 includes time necessarily
spent at each stop-over, to a maximum of three hours, as travel time. This
indicates the specific circumstances in which an employee can be compensated
for travel time. Instead of having regard to the relevant clauses of the
collective agreement, the adjudicator considered inappropriate factors, and in
particular the decision in Landry v. Library of Parliament, [1993] P.S.S.R.B.
No. 90, in which the collective agreement did not contain a clause regarding
travel time, unlike the collective agreement in this case.
[57]
As a final
point, regarding the respondents’ argument that compensation paid in the past
operated to bring the doctrine of estoppel into play, the Attorney General
notes that there was no evidence on this point other than one example, where an
employee was compensated when he attended a course in February 2003. Moreover,
the respondents were unable to show that they suffered any prejudice after
relying on the employer’s representations stating that they would be
compensated for travel time, and in addition, well before they travelled, the
employer confirmed that the employees would not be able to claim travel time.
[58]
The
respondents reply that the adjudicator is not bound by the decision in Mayoh
because in that case the employer was being more generous than the collective
agreement provided, and, consequently, [the employee] was not entitled to
compensation for travel time. In the respondents’ submission, Landry is
the most appropriate decision because travel time was compensated where the
employer determined the mode of transport and the times of departure and
return. On the other hand, in Mayoh, the employer’s policy made up for
an oversight in the collective agreement; in this case, the employer has no
such policy.
[59]
On the
question of definitions, the respondents note that Mayoh interprets
“home” and not “residence”. In addition, as the adjudicator noted, the
interpretation could lead to absurd results, and so the expression “residence”
must be given a broad interpretation. Taking that approach, it was not
unreasonable for the adjudicator to conclude that the employer was required to
pay the employees compensation for travel between the hotel and the training
site. Accepting the employer’s interpretation produces an unreasonable result
that is not consistent with the purpose of the article.
[60]
The
respondents add that the interpretation of the terms “normal employment area”
and “headquarters area” is also unreasonable and they cannot be considered to
be the place where the employee attends to take a training course. Based on the
definitions in the collective agreement, the respondents submit, the only
reasonable conclusion is that the headquarters area is the place where the
employees ordinarily work, and not the place where the training courses take
place.
[61]
The
respondents’ final submission is that both the Attorney General and the
adjudicator have framed the question of estoppel incorrectly. They assert that
the question is whether the employer, having paid compensation for travel in
the past, and the union having relied on that interpretation, may unilaterally
change the interpretation of that article. The respondents submit that all of
the requirements for estoppel have been met. First, the adjudicator agreed that
there was a past practice that interpreted the collective agreement as
described by the respondents. That shows that the employer tried, by its
conduct, to affect its legal relations with its employees. Second, relying on
that conduct, the union did not try to renegotiate the clause when the
collective agreement was renewed in 2000. And third, the employer is now trying
to advance the interpretation that it claims to have advanced before the
training took place.
[62]
For
convenience, I reproduce the dispositive paragraph:
[42] With respect to the grievors' travel
between their accommodations and the training centre, in cases where the
employer determines the mode of transport as well as the times of departure and
return, I also believe that such time should be compensated. The time that
employees spend traveling from their residences to their workplaces differs
from the time they spend traveling to a training activity according to a
schedule set by the employer. In the first instance, employees are free to
decide how they will use their time and to travel as they deem best according
to their own constraints. In the second instance, employees must comply with
the time of departure and travel time as determined by the employer and cannot
choose to act otherwise. They are at the complete disposal of the employer
during that time.
[63]
It may be
correct to conclude that where an employee is required to travel for training
according to a schedule set by the employer, the employee must comply and is at
the disposal of the employer. However, while that may seem unfair, it does not
justify compensation when the collective agreement expressly prohibits it.
[64]
The
adjudicator’s analysis begins and ends with an analysis of the constraints
imposed by the training the employer required the employees to take, but she
makes no reference to the relevant clauses of the collective agreement. It
seems to me, however, that this should be the starting point for any analysis.
[65]
The
collective agreement contains specific clauses that apply where an employee is
required by the employer to travel outside his or her normal employment area
for the purpose of performing duties. As noted by the parties, the relevant
clauses govern compensation for travel time. In particular, they include
specific limitations and provide for compensation only for time travelling
between the employee’s “residence” and “workplace” or the time between the time
of departure and time of arrival at the “destination”.
[66]
The
Attorney General suggests that the term “residence” must be interpreted narrowly,
and must exclude the hotel where an employee is “residing”. The respondents
suggest a broader interpretation under which the term would include a temporary
residence.
[67]
Those
arguments to not answer the question, however. Article B7.08 seems to me
to settle the argument. For convenience, that article is reproduced below:
Compensation under this Article shall not be paid
for travel time to courses, training sessions, conferences and
seminars unless so provided for in the Article 18, Career Development.
[Emphasis added.]
[68]
As we saw
earlier, article B7.08 is clear and unequivocal. It provides for no
compensation for travel time where the travel is to attend a training course.
In addition, the wording of the article itself makes it clear that it is not
limited to travel time between the employee’s residence and accommodations, and
rather includes all travel time.
[69]
The fact
that there is no such clause in the collective agreement on which the grievance
in Landry was based makes that decision of little relevance in these
circumstances. As the Attorney General observed, that collective agreement did
not even contain a travel time clause. In Landry, the adjudicator
concluded that, under a provision granting compensation for overtime, the
employees were entitled to compensation for travel time outside their regular
work schedule. Article B7.08 prohibits such compensation in these
circumstances.
[70]
With
respect to the estoppel argument, the respondents must show, inter alia,
that there was a promise or conduct that induced them to affect their relations
with the employer. I am not satisfied that this first requirement of the
doctrine of estoppel has been met.
[71]
The
respondents suggest that the evidence of a [TRANSLATION] “well established” practice,
according to Mr. Gingras’ affidavit, illustrates the existence of the
conduct on which they relied.
[72]
The
conduct or promise on which the party alleging estoppel relies must be
“unequivocal”. For example, R.B. Blasina, the adjudicator in Abitibi
Consolidated Inc. and I.W.A. Canada, Local 1-424 (2000), 91 L.A.C. (4th) 21,
stated:
In other words, an estoppel will arise
when a person or party, unequivocally by his words or conduct, makes a
representation or affirmation in circumstances which make it unfair or unjust
to later resile from that representation or affirmation. The unfairness or
injustice must be more than slight. It does not matter whether the
representation or affirmation was made knowingly or unknowingly, or actively or
passively. The representation is taken to have that meaning which reasonably
was taken by the party who raises the estoppel.
[Emphasis added.]
[73]
In
addition, the existence of the conduct or promise on which a party relied is a
question of fact: Abitibi Consolidated.
[74]
As I noted
earlier, the evidence by no means establishes that there was such a past
practice, let alone a “well established” past practice. A mere assertion that
this was the case, in Mr. Gingras’ affidavit attesting to the fact, and a
single example, are by no means convincing and sufficient.
[75]
Accordingly,
the fact that there is no evidence of a promise or conduct precludes
application of the doctrine of estoppel in these circumstances.
VIII. Conclusion
[76]
The
adjudicator’s decision is an incorrect interpretation of the collective
agreement. Moreover, I am not satisfied that the decision is based on a well
established past practice, and in any event the evidence would be insufficient
to support such an analysis. For the same reason, I cannot accept the
respondents’ arguments regarding the application of the doctrine of estoppel.
JUDGMENT
THE COURT ORDERS that this application
for judicial review be allowed and the decision of the tribunal be set aside,
with costs. The matter is referred back to the Public Service Labour Relations
Board with the direction that the grievances be dismissed in accordance with
these reasons.
“Orville
Frenette”
Certified
true translation
Brian
McCordick, Translator
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