Docket: A-366-15
Citation:
2016 FCA 148
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CORAM:
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DAWSON J.A.
RENNIE J.A.
GLEASON J.A.
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BETWEEN:
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CANADA REVENUE AGENCY
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Applicant
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and
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JEFFREY ALAN
CLOUGH, DIAN ROBSON AND EDWARD LEUNG
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Respondents
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on May 11, 2016).
GLEASON J.A.
[1]
In this application for judicial review, the
applicant, the Canada Revenue Agency [the CRA], seeks to set aside the May 22,
2015 decision of an adjudicator of the Public Service Labour and Employment
Relations Board [the PSLERB], upholding the respondents’ grievances (2015
PSLREB 48).
[2]
In their grievances, the respondents sought
severance pay based on their years of service with the CRA and in the British
Columbia public service, where they had worked as auditors before being
transferred to the CRA. They were so transferred in 2010 in conjunction with
plans to develop a harmonized sales tax [HST] in British Columbia. Although the
HST was not implemented following a 2011 provincial referendum in which the
proposal for the HST was rejected by voters, the respondents were given the
option of remaining employed with the CRA and chose to do so.
[3]
Their grievances arose under a new provision in
the 2012-2014 collective agreement between the CRA and the respondents’ bargaining
agent, the Professional Institute of the Public Service of Canada [PIPSC]. This
new collective agreement provision capped the accrual of severance pay
entitlements on retirement or resignation to the amounts accrued to the
effective date of the new collective agreement and afforded employees the
option of electing immediate payment of their accrued severance pay. The
relevant collective agreement provisions establish severance pay entitlement with
reference to the number of years of an employee’s “continuous
employment”. That term is defined in article 2.01 of the collective
agreement as having the same meaning as in the CRA’s Terms and Conditions of
Employment Policy [the Policy].
[4]
The Policy defines “continuous
employment” as “periods of service in the public
service”, as defined in the Public Service Superannuation Act,
R.S.C. 1985, c. P-36 [the PSSA]. The PSSA contains a definition
of “public service”, which is defined in section
3 of that Act as essentially meaning employment with any federal department or
board, commission or corporation listed in Schedule I of the PSSA. The
CRA is listed in Schedule I to the PSSA, and its employees are therefore
entitled to pensions under the PSSA. The PSSA, however, contains
other provisions that allow for the recognition of periods of service with
other organizations in respect of entitlements under the PSSA. By virtue
of these provisions, the grievors were entitled to have their years of service
in the British Columbia public service recognized under the PSSA, with
the result that their PSSA pensions would be based on their service with
both British Columbia and the CRA.
[5]
In her decision, the PSLREB adjudicator found
the provisions defining “continuous employment”
in the collective agreement to be ambiguous and therefore had regard to
extrinsic evidence to interpret the term. She further found that there was
support in the evidence for the view that “continuous
employment”, with reference to the grievors’ severance pay entitlements,
was to be interpreted as including both their years of service in the British
Columbia public service and with the CRA. This evidence included statements in the
human resources agreements between the CRA and the Government of British
Columbia, in a memorandum of understanding between the CRA and the PIPSC as
well as several statements made by members of CRA management to the grievors
and the PIPSC leadership. To a greater or lesser degree, each of these
statements indicated that transferring employees’ entitlements to
service-related benefits would be based on their total years of service with
both the British Columbia public service and the CRA.
[6]
It is common ground between the parties that the
adjudicator’s decision is reviewable on the reasonableness standard, as,
indeed, has been firmly established by the case law of this Court: see, for
example, Amos v. Canada (Attorney General), 2011 FCA 38 at paragraphs
29-32, 417 N.R. 74; Bahniuk v. Canada (Attorney General), 2016 FCA 127
at paragraph 14, 2016 CarswellNat 1429.
[7]
The applicant argues that the adjudicator’s
determination that it was appropriate to consider the extrinsic evidence was
unreasonable and also submits that it was unreasonable to conclude that such
evidence demonstrated that “continuous employment”
was to be interpreted in the manner the grievors suggested. The applicant says
that the terms of the collective agreement were clear and must inevitably lead
to the opposite conclusion.
[8]
With respect, we disagree. We see nothing
unreasonable in holding that the relevant provisions in the collective
agreement, the Policy and the PSSA are ambiguous and, therefore, find
that it was not unreasonable for the adjudicator to have considered the
extrinsic evidence. Simply put, the concept of “continuous
employment” is far from clear on its face and its ambiguity is
heightened by the fact that the service in question may be counted under the PSSA
as continuous service for purposes of pension entitlement. As the Policy ties
the collective agreement definition of “continuous employment”
to the PSSA, and the PSSA recognizes the disputed service for
pension purposes, there was ample basis for a finding of ambiguity in this
case. The adjudicator’s holding on this point is thus not unreasonable.
[9]
Nor is her assessment of the extrinsic evidence
unreasonable. There was ample evidence to support the grievors’ interpretation,
and it was therefore open to the adjudicator to interpret “continuous employment”, for purposes of calculating
the grievors’ severance pay entitlement, as including their years of employment
in the British Columbia public service and with the CRA.
[10]
It follows that the adjudicator’s determination
cannot be disturbed and that this application will therefore be dismissed with
costs, fixed in the all-inclusive amount of $3000.00.
"Mary J.L. Gleason"
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