Date:
20070322
Docket: A-301-06
Citation: 2007 FCA 117
CORAM: RICHARD C.J.
LÉTOURNEAU
J.A.
NOËL J.A.
BETWEEN:
BRIAN
ROSEKAT
Appellant
and
ATTORNEY
GENERAL OF CANADA
Respondent
Heard at Ottawa,
Ontario, on March 22,
2007.
Judgment delivered from the Bench at Ottawa, Ontario, on March 22, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: RICHARD
C.J.
Date:
20070322
Docket: A-301-06
Citation:
2007 FCA 117
CORAM: RICHARD
C.J.
LÉTOURNEAU J.A.
NOËL
J.A.
BETWEEN:
BRIAN ROSEKAT
Appellant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Ottawa, Ontario, on March 22, 2007)
RICHARD C.J.
[1]
This
is an appeal of the decision of Mr. Justice Rouleau of the Federal Court (2006
FC 769) dismissing an application for judicial review of the decision of D.R.
Quigley (the “adjudicator”) of the Public Service Labour Relations Board
(“Board”) acting pursuant to section 92 of the Public Service Staff
Relations Act, R.S.C. 1985, c. P-35. The application puts into question the
adjudicator’s interpretation of the collective agreement and its application to
the appellant’s particular situation.
[2]
The
facts in this case are not in dispute.
[3]
The
relevant provisions of the collective agreement are as follows:
ARTICLE 5
MANAGEMENT RIGHTS
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5.01 All the functions,
rights, powers and authority which the Employer has not specifically
abridged, delegated or modified by this Agreement are recognized by the
Institute as being retained by the Employer.
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ARTICLE 15
VACATION LEAVE
...
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15.05
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Provision
for Vacation Leave
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a.
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Employees are expected to take all their
vacation leave during the vacation year in which it is earned.
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b.
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In order to maintain operational
requirements, the Employer reserves the right to schedule an employee's
vacation leave but shall make every reasonable effort:
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i.
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to provide an employee's vacation leave in
an amount and at such time as the employee may request;
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ii.
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not to recall an employee to duty after he
has proceeded on vacation leave.
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c.
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The Employer shall give an employee as much
notice as is practicable and reasonable of approval, denial or cancellation
of a request for vacation or furlough leave. In the case of denial,
alteration or cancellation of such leave, the Employer shall give the written
reason therefore, upon written request from the employee.
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...
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15.07
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Carry-Over
and Liquidation of Vacation Leave
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a.
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Where in any vacation year all of the
vacation leave credited to an employee has not been scheduled, the employee
may carry over into the following vacation year up to a maximum of
thirty-five (35) days credits. All vacation credits in excess of thirty-five
(35) days will be paid in cash at the employee's daily rate of pay as
calculated from the classification prescribed in his certificate of
appointment of his substantive position on the last day of the vacation year.
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b.
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During any vacation year, upon application
by the employee and at the discretion of the Employer, earned but unused
vacation leave credits in excess of fifteen (15) days may be paid in cash at
the employee's daily rate of pay as calculated from the classification
prescribed in his certificate of appointment of his substantive position on
March 31 st, of the previous vacation year.
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c.
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Notwithstanding paragraph (a), if on the
date of signing of this Agreement or on the date an employee becomes subject
to this Agreement, he or she has more than two hundred and sixty-two point
five (262.5) hours of unused vacation leave credits earned during previous
years, a minimum of seventy-five (75) hours credit per year shall be granted,
or paid in cash by March 31 st of each year, until all vacation leave credits
in excess of two hundred and sixty-two point five (262.5) hours have been
liquidated. Payment shall be in one installment per year, and shall be at his
or her daily rate of pay as calculated from the classification prescribed in
his or her certificate of appointment of his or her substantive position on
March 31 st of the applicable previous vacation year.
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[4]
The
adjudicator found as a fact that the grievor was never denied vacation leave;
in fact, he was asked on several occasions to submit a vacation leave plan but
refused to do so, although he had reached the 35-day carry-over limit stated in
subclause 15.07(a) (paragraph 57).
[5]
The
adjudicator also found as a fact that the grievor was not denied vacation leave
in an amount and at such time as requested. The employer gave him ample
opportunity and several opportunities to schedule his vacation leave, but he
chose not to do so (paragraph 58).
[6]
The
adjudicator found the wording in subclause 15.05(a) very clear: “Employees are
expected to take all their vacation leave during the vacation year in which it
is earned” (paragraph 50).
[7]
The
adjudicator then determined at paragraph 56:
The wording of clause
5.01 provides that the employer retains all rights, functions, powers and
authority unless these are specifically restricted by the collective agreement.
Clause 15.05(b) recognizes that the employer, in order to maintain operational
requirements, reserves the right to schedule an employee’s vacation leave, but
the collective agreement restricts this right. The employer must make every
reasonable effort to provide an employee vacation leave at such time and in an
amount as the employee may request. As well, the employer must be reasonable in
its application of 15.05(b)(ii) and 15.05(c). I find no limitations in the
collective agreement to the employer’s right to schedule an employee’s vacation
leave when the employee refuses to take vacation leave during the fiscal year.
[8]
Accordingly,
the adjudicator dismissed the grievance.
[9]
We
cannot find any reviewable error by the adjudicator in this case. Having so
decided, it is not necessary to express an opinion on the alternative ground
adopted by the applications’ judge, namely that the phrase “In order to
maintain operational requirements” in subclause 15.05(b) is sufficiently broad
to include financial constraints.
[10]
Accordingly,
the appeal will be dismissed with costs.
"J. Richard"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-301-06
(APPEAL FROM A JUDGMENT THE HONOURABLE
PAUL ROULEAU DATED JUNE 16, 2006, DOCKET NO. T-1887-05)
STYLE OF CAUSE: Brian
Rosekat v. Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 22, 2007
REASONS FOR JUDGMENT OF THE COURT BY: RICHARD C.J.,
LÉTOURNEAU J.A.
and
NOËL J.A.
DELIVERED FROM THE BENCH BY: RICHARD C.J.
APPEARANCES:
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Mr. Steven Welchner
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FOR THE APPELLANT
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Mr. Stéphane
Hould
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Welchner Law Office
Ottawa, Ontario
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FOR THE APPELLANT
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John H. Sims,
Q.C.
Deputy Attorney General of Canada
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FOR THE
RESPONDENT
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