A-580-96
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
ROBERTSON J.A.
BETWEEN:
WAYNE
BARRY
Appellant
-
and -
TREASURY
BOARD
(TRANSPORT
CANADA)
Respondent
HEARD at Ottawa, Ontario, Wednesday, October 22,
1997.
JUDGMENT delivered from the Bench at Ottawa,
Ontario, on Wednesday, October 22, 1997.
REASONS FOR JUDGMENT BY: ROBERTSON,
J.A.
A-580-96
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
ROBERTSON J.A.
BETWEEN:
WAYNE
BARRY
Appellant
-
and -
TREASURY
BOARD
(TRANSPORT
CANADA)
Respondent
REASONS
FOR JUDGMENT
(Delivered from the
Bench, at Ottawa, Ontario
on Wednesday, the 22nd
day of October, 1997)
ROBERTSON J.A.:
This is an appeal from an Order of a
Motions Judge dismissing an application for judicial review of a decision
rendered by an adjudicator under the Public Service Staff Relations Act R.S.C.
1985, c.P-35 (the Act). The adjudicator held that the respondent
employer had made every reasonable effort to accommodate the appellant
employee's request for leave, as it was required to do under the terms of the
collective agreement. The Motions Judge found no error on the adjudicator's
part.
A preliminary issue raised on this
appeal concerns the standard of curial deference owed the adjudicator's
decision. The Motions Judge was of the view that because the privative clause
contained in the Act was repealed as of June 1, 1993, the proper
standard embraces the question of whether the adjudicator's decision is
"supportable by the evidence": see Public Service Reform Act,
S.C. 1992, c.54, s.73; and Canada (Attorney General) v. Wiseman
(1995), 95 F.T.R. 200; Canada (Procureur général) v. Séguin
(1995), 101 F.T.R. 64.
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. PSAC [1993] 1 S.C.R.
941 ("PSAC #2) 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., [1993] 2 S.C.R. 316 at 337-38, 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:
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 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.
...
A
similarly deferential approach based on the purpose of arbitration was taken in
Volvo Canada Ltd. v. U.A.W., Local 720, [1980] 1 S.C.R. 178, at
p. 214. In that case, a majority of this Court applied the patently
unreasonable test to the decision of an arbitrator appointed pursuant to a
collective agreement, even though this was consensual rather than statutory
arbitration and there was no privative clause per se. Noting that
neither of the parties to the agreement had any choice but to have a grievance
arbitrated, Pigeon J. stressed, at p. 214 that:
[o]n the
other hand, the arbitration is not meant to be an additional step before the
matter goes before the courts, the decision is meant to be final. It is
therefore imperative that decisions on the construction of a collective
agreement not be approached by asking how the Court would decide the point but
by asking whether it is a "patently unreasonable" interpretation of
the agreement.
In conclusion, the standard of review
of an adjudicator's decision, rendered under the Act, with respect to
the interpretation of the provisions of a collective agreement is whether the
decision is patently unreasonable. This was true prior to June 1, 1993 and the
same holds true after that date.
Having regard to the applicable
standard of review, we are not persuaded that the Motions Judge erred in
refusing to allow the judicial review application. Although the adjudicator's
decision is not a model of clarity and evidences some confusion, he did not
misapprehend the ultimate issue to be decided, nor can it be said that his
decision is "irrational". Accordingly, the appeal must be dismissed
with costs.
J.A.
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