Docket: A-508-14
Citation:
2015 FCA 117
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CORAM:
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STRATAS J.A.
SCOTT J.A.
BOIVIN J.A.
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BETWEEN:
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STEPHANIE
DELIOS
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Appellant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
STRATAS J.A.
[1]
Ms. Delios appeals from the judgment dated
November 5, 2014 of the Federal Court (per Justice Brown): 2014 FC 1042.
The Federal Court ruled that a labour adjudicator’s order was unreasonable and
quashed it.
[2]
The adjudicator (David P. Olsen) upheld Ms.
Delios’ grievance, accepting her interpretation of a provision in a collective
agreement, and awarded her one day’s pay: 2013 PSLRB 133. The Attorney General
applied for judicial review to quash the adjudicator’s order.
[3]
In allowing the Attorney General’s application,
the Federal Court disagreed with the adjudicator’s interpretation of the
collective agreement. Ms. Delios now appeals to this Court.
[4]
In my view, in assessing the reasonableness of
the adjudicator’s order, the Federal Court was insufficiently deferential. The
Federal Court should not have set it aside. The arbitrator’s order was
reasonable. Therefore, I would allow Ms. Delios’ appeal and restore the
adjudicator’s order, with costs.
A. The
basic facts
[5]
At all material times, Ms Delios worked at the
Canada Revenue Agency. Many who work there are unionized. Roughly 28,000 belong
to a bargaining unit represented by the Public Service Alliance of Canada and
are covered by a collective agreement. Roughly 12,000 belong to a bargaining
unit represented by the Professional Institute of the Public Service of Canada
and are covered by another collective agreement.
[6]
Both collective agreements allow for employees
to take 7.5 hours of personal leave, which amounts to one working day, every
fiscal year.
[7]
The facts giving rise to this appeal arose at
the start of 2008. At that time, Ms. Delios worked in a position covered by the
PSAC collective agreement. In January 2008, she took a day of personal leave,
exhausting her entitlement under the PSAC collective agreement to one day of personal
leave.
[8]
At the end of January, she took a new position
within the Agency. That position was covered by the PIPSC collective agreement,
not the PSAC collective agreement. A couple of months later, still within the
same fiscal year, she asked for a day of personal leave under the PIPSC
collective agreement. Her manager refused. She grieved the refusal.
[9]
In Ms. Delios’ view, after she changed positions
she was governed by the personal leave provision in the PIPSC collective
agreement. She had not taken any leave under that provision during the fiscal
year. Thus, her request for personal leave under the PIPSC collective agreement
should have been granted.
[10]
In the Agency’s view, having taken her personal
leave for the fiscal year under the PSAC collective agreement, Ms. Delios could
not take personal leave under the PIPSC collective agreement.
[11]
The personal leave provision in the PIPSC
collective agreement does not explicitly address the situation of employees in
Ms. Delios’ situation, i.e., those who transfer from the bargaining unit
governed by the PSAC collective agreement – or for that matter a bargaining
unit governed by a collective agreement elsewhere in the public service – into
the bargaining unit covered by the PIPSC collective agreement. The personal
leave provision in the PIPSC collective agreement reads as follows:
17.21 Personal Leave
(a) Subject to operational
requirements as determined by the Employer, and with an advance notice of at
least five (5) working days, the employee shall be granted in each fiscal year,
up to seven decimal five (7.5) hours of leave with pay for reasons of a
personal nature.
(b) The leave will be scheduled at
times convenient to both the employee and the Employer. Nevertheless the
Employer shall make every reasonable effort to grant the leaves at such times
as the employee may request.
[12]
Following denials of Ms. Delios’ grievance at
various levels within the Agency, her grievance was referred to adjudication
under the Public Service Labour Relations Act, S.C. 2003, c. 22.
[13]
The adjudicator upheld Ms. Delios’ grievance. He
interpreted article 17.21 of the PIPSC collective agreement and found that it
supported Ms. Delios’ view of the matter. He ordered that the Agency pay Ms.
Delios one day of salary at the rate existing at the time of her grievance.
Below, I shall examine the adjudicator’s reasoning in much more detail.
[14]
The Attorney General applied to the Federal
Court for judicial review of the adjudicator’s order. The Federal Court
purported to apply the reasonableness standard of review to the order and found
it unreasonable for two reasons. First, the Federal Court disagreed with the
adjudicator’s interpretation of the collective agreement. Second, it admitted a
new affidavit tendered by the Agency and then relied on part of it to find that
the adjudicator’s interpretation of the collective agreement would result in
significant additional cost and so it was unreasonable. As a result, the Federal
Court set aside the adjudicator’s order and remitted the matter to a different
adjudicator for re-determination. Below, I shall examine the Federal Court’s
reasoning in much more detail.
[15]
Ms. Delios appeals to this Court, seeking
reinstatement of the adjudicator’s order.
B. Analysis
[16]
Our task on appeal from an application for
judicial review is to assess whether the Federal Court correctly selected the
standard of review and then to determine whether it properly applied that
standard of review: Agraira v. Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paragraphs 45-47.
[17]
The parties agree that the Federal Court
correctly selected the standard of review of reasonableness. However, the
agreement of the parties on the standard of review does not bind us: Monsanto
Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54,
[2004] 3 S.C.R. 152 at paragraph 6. We must assess the matter for ourselves.
[18]
Here, I agree with the parties. In determining the
standard of review, the first step is to assess what is really in issue in the
judicial review. In this case, we are concerned with the adjudicator’s
interpretation of article 17.21 of the PIPSC collective agreement.
[19]
For decades now, the standard of review of
adjudicators’ interpretations of collective agreement provisions has been the
deferential standard of reasonableness or, under earlier law, the deferential
standard of patent unreasonableness: United
Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco
Construction Ltd., [1993] 2
S.C.R. 316, 102 D.L.R. (4th) 402; British Columbia Teachers’ Federation
v. BC Public School Employees’ Association, 2014 SCC 70, [2014] 3 S.C.R. 492; United Food and Commercial Workers,
Local 503 v. Wal‑Mart Canada Corp., 2014 SCC 45, [2014]
2 S.C.R. 323; Communications, Energy and Paperworkers Union of
Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2
S.C.R. 458; and many, many others. Even before we had patent unreasonableness
as a standard, reviewing courts were urged to defer to adjudicators’
interpretations of collective agreement provisions: see, e.g., Douglas Aircraft Co. of Canada v. McConnell, [1980] 1 S.C.R. 245
at page 275, 99 D.L.R. (3d) 385.
[20]
This makes sense.
For one thing, labour adjudicators’ decisions are often protected by privative
clauses. Here, we have one: the Public Service
Labour Relations Act, above, section 233, adopting subsections 34(1)
and (3) of the Public Service Labour Relations and Employment Board Act, S.C. 2013, c. 40. And interpretations of collective agreement
provisions involve elements of factual appreciation, specialization and expertise
concerning collective agreements, the disputes that arise under them, the
negotiations that lead up to them and, more broadly, how the management-labour
dynamic swirling around them plays out in various circumstances. These elements
all point to the standard of reasonableness, not correctness: Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraphs 52-55.
[21]
These elements of factual appreciation,
specialization and expertise also affect the manner in which reviewing courts
should conduct reasonableness review of a labour adjudicator’s decision. When
conducting reasonableness review, reviewing courts assess whether the
adjudicator’s interpretation of the collective agreement falls within a range
of acceptability or defensibility or, put another way, whether a decision is
within the decision-maker’s margin of appreciation: Dunsmuir,
above at paragraph 47. But that range or margin can be narrow or wide depending
on the nature of the question and the circumstances: Catalyst Paper Corp. v.
North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5 at paragraphs 17-18
and 23; Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 59; McLean
v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 at paragraphs 37-41. In a case like this, the elements
that go into interpreting collective agreement provisions – matters of
factual appreciation and specialized expertise outside of the ken of the courts
– entitle labour adjudicators to a wide margin of
appreciation: Canada (Minister of Transport, Infrastructure and Communities)
v. Farwaha, 2014 FCA 56, 455 N.R. 157 at paragraphs
90-99.
[22]
Ms. Delios submits that although the Federal
Court said it was conducting reasonableness review, it did not. In her view,
the Federal Court substituted its own interpretation of article 17.21 of the
PIPSC collective agreement for that of the adjudicator.
[23]
Ms. Delios points to various things the Federal
Court did, including enunciating and imposing a “correct”
interpretive test (at paragraphs 48 and 52), deploying its own interpretation
of the collective agreement provisions (at paragraphs 49, 53 and 70), reproaching
the adjudicator for reading words out of the collective agreement or rewriting
it when he did no such thing (at paragraphs 51 and 54-55), referring to the
intentions of the parties outside of the words they used in the collective
agreement (at paragraphs 54 and 62), using words of correctness review (e.g.,
heading B, the “true construction of the terms
of the collective agreement” [my emphasis]), making its own assessment
whether a labour relations result was “absurd” (at
paragraph 62), admitting new evidence to show why its own interpretation of the
collective agreement was superior to that of the adjudicator (at paragraphs
63-66), finding that the language of article 17.21 was plain and clear when
even the Agency suggested it was not (at paragraphs 47 and 50), finding that
another adjudicator’s decision was perfectly clear and completely on point when
even the Agency suggested it was only similar (at paragraph 69), and using that
decision (that was not binding on the adjudicator) to conclude that the
adjudicator was wrong (at paragraph 69).
[24]
The Attorney General supports the Federal
Court’s decision. He asserts many of the same points set out in the preceding
paragraph.
[25]
I agree with Ms. Delios’ submissions. Although
the Federal Court correctly identified reasonableness as the standard of
review, it actually performed correctness review.
[26]
The Supreme Court has told us that
reasonableness review involves, among other things, a respectful attention to
the decision and reasons of the administrative decision-maker: Dunsmuir,
above at paragraphs 48 and 56. This means that we begin by identifying the
precise issue that was before the administrative decision-maker, noting any
legislative methodologies or authorizing provisions that must be followed. To
the extent the administrator interpreted those methodologies or authorizing
provisions, the reasonableness of those interpretations also falls to be
considered. Then we proceed to the core of reasonableness review. Bearing in
mind the margin of appreciation that the administrator should be given – a
margin that can be narrow, moderate or wide according to the circumstances – we
examine the administrator’s decision in light of the evidentiary record and the
law, to examine whether the decision is acceptable and defensible on the facts
and the law.
[27]
The evidentiary record, legislation and case law
bearing on the problem, judicial understandings of the rule of law and
constitutional standards help to inform acceptability and defensibility. Here,
certain indicators, sometimes called “badges of
unreasonableness,” may assist: Farwaha, above at paragraph 100.
For example, a decision whose effects appear to conflict with the purpose of
the provision under which the administrator is operating may well raise an
apprehension of unreasonableness: Montréal (City) v. Montreal Port
Authority, 2010 SCC 14, [2010] 1 S.C.R. 427 at paragraphs 42 and 47. In that sort of
case, the quality of the explanations given by the administrator in its reasons
on that point may matter a great deal. Another badge of unreasonableness is the
making of key factual findings with no rational basis or entirely at odds with
the evidence. But care must be taken not to allow acceptability and
defensibility in the administrative law sense to reduce itself to the
application of rules founded upon badges. Acceptability and defensibility is a
nuanced concept informed by the real-life problems and solutions recounted in
the administrative law cases, not a jumble of rough-and-ready, hard-and-fast
rules.
[28]
Under the reasonableness standard, we do not
develop our own view of the matter and then apply it to the administrator’s
decision, finding any inconsistency to be unreasonable. In other words, as
reviewing judges, we do not make our own yardstick and then use that yardstick
to measure what the administrator did, finding any inconsistency to be
unreasonable. That is nothing more than the court developing, asserting and
enforcing its own view of the matter – correctness review.
[29]
Here, applying the proper approach to
reasonableness, the adjudicator’s decision must be held to be reasonable.
[30]
First, the adjudicator
identified the precise issue before him: whether article 17.21 of the PIPSC
collective agreement addressed the situation of
employees in Ms. Delios’ situation. The adjudicator asked whether the provision
imports “a notion of ‘public-service-wide’ application
as the [Agency] contends that they do” (at paragraph 16).
[31]
Next, the adjudicator found that Ms. Delios’
entitlement to the personal leave benefit stemmed from Article 17.21 of the
PIPSC collective agreement and not elsewhere (at paragraph 18). So the task was
to interpret the article (at paragraphs 16 and 18). And the words “in each fiscal year” did not themselves resolve the
task (at paragraph 18).
[32]
Next, the adjudicator looked to other provisions
of the collective agreement to assist in the interpretation of article 17.21.
This is the sort of thing that adjudicators experienced in the interpretation
of collective agreements do: D.J.M. Brown & D.M. Beatty, Canadian Labour
Arbitration, 4th ed., looseleaf (Toronto: Carswell, 2006) at chapter 4. The
adjudicator noted that where restrictions on leaves were present, the
collective agreement provided for them in other provisions (at paragraphs
19-21). He concluded from the existence of these other provisions that “where the parties…have agreed to place a temporal or other
limitation on a leave entitlement arising under the collective agreement, they
have done so explicitly” (at paragraph 22).
[33]
In its submissions to the adjudicator, the
Agency urged the adjudicator to follow another adjudicator’s decision. The
adjudicator considered the decision and concluded that “the
outcome of that case rested on factors considered by the adjudicator that are not
present in the instant case” (at paragraph 23). In addition to
distinguishing the decision, the adjudicator could have added that it was not
binding on him, but he did not.
[34]
The adjudicator, obeying the prohibition set out
in section 229 of the Public Service Labour Relations Act, declined to
modify the text of article 17.21.
[35]
Lastly, the adjudicator dealt with a particular
controversy placed before him. In her submissions to the adjudicator, Ms.
Delios suggested that her interpretation of article 17.21 would not result in
any hardship because relatively few people transfer between bargaining units. The
Agency responded that in fact the cost would be “quite
serious” and “costly.” The Agency did not
provide any facts or figures to support this. On this state of this evidence,
the adjudicator declined to make any factual finding on this. Instead, he
concluded that “[a]ny perceived unfairness or inequity
resulting from the application of the collective agreement [as he interpreted
it] should be resolved at the bargaining table” (at paragraph 24).
[36]
Behind this finding is the adjudicator’s specialized
and expert appreciation that in any collective agreement – often a document of
considerable length and complexity – there will be issues left on the table,
unresolved. Collective bargaining can be tough, each side must make difficult compromises,
and so there are any number of things in the final deal that can seem unfair or
inequitable to the parties. As the adjudicator noted, it is not for him to
modify the text of the agreement to address those issues. Rather, as the
adjudicator held, it is for the next round of bargaining.
[37]
Overall, all of the above observations and
findings of the adjudicator are rooted within his factual appreciation and
labour relations specialization and expertise. To use the language of
reasonableness review, they are within his margin of appreciation. To the
extent there is any unfairness, inequity or additional cost resulting from his
interpretation of the collective agreement, it is an artifact of the collective
bargaining process. The overall result reached by the adjudicator is acceptable
and defensible on the facts and the law and, thus, reasonable.
[38]
One last issue remains. In support of its
application for judicial review in the Federal Court, the Attorney General
filed an affidavit containing evidence of the cost associated with the
adjudicator’s interpretation. The Federal Court relied upon paragraphs 20-21 of
this affidavit to find that the adjudicator’s interpretation of article 17.21
of the PIPSC collective agreement would cost the Agency roughly an extra one
million dollars a year. The Federal Court considered that result to be “absurd” in a freestanding policy sense and used it to
find that the adjudicator’s interpretation was unreasonable.
[39]
As explained above, this was an instance of
correctness review, not reasonableness review. And, as a matter of law, in conducting
reasonableness review and assessing whether an administrative decision is
outside the margin of appreciation we give to the administrator, we consider the
evidentiary record, the legislation and case law bearing on the problem, judicial
understandings of the rule of law and constitutional standards – not freestanding
policy divorced from those considerations. We all have freestanding policy
views. But judicial review is about applying legal standards, not our views.
[40]
Further, the Federal Court should have disregarded
paragraphs 20-21 of the affidavit filed before it. They were inadmissible.
[41]
In administrative regimes such as this, Parliament
has given the administrative decision-maker, not the reviewing court, the job
of finding the facts. Because of this demarcation
of roles, the reviewing court cannot allow itself to become a forum for
fact-finding on the merits of the matter. See generally Association
of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access
Copyright), 2012 FCA 22, 428 N.R. 297 at paragraph 17.
[42]
Accordingly, as a general rule, the evidentiary
record before the Federal Court on judicial review is restricted to the
evidentiary record that was before the administrative decision-maker. In other
words, as a general rule, evidence that was not before the administrative
decision-maker and that goes to the merits of the matter before the Board is
not admissible on judicial review. As a result, most affidavits filed on
judicial review only attach the record that was before the administrative
decision-maker, without commentary. This is proper. See generally Connolly
v. Canada (Attorney General), 2014 FCA 294, 466 N.R. 44 at paragraph 7,
citing Access Copyright, above at paragraphs 19-20.
[43]
There are narrow, principled exceptions to the
general rule against filing evidence on
judicial review that was not before the administrative
decision-maker: Access Copyright, above at paragraph 20. In the
case before us, the Federal Court invoked one of the exceptions, the “general background” exception. The discussion that
follows is limited to this exception.
[44]
Under this exception, a party can file an
affidavit providing “general background in
circumstances where that information might assist [the review court to
understand] the issues relevant to the judicial review”: Access Copyright, above at paragraph
20(a).
[45]
The “general background”
exception applies to non-argumentative orienting statements that assist the
reviewing court in understanding the history and nature of the case that was
before the administrative decision-maker. In judicial reviews of complex
administrative decisions where there is procedural and factual complexity and a
record comprised of hundreds or thousands of documents, reviewing courts find
it useful to receive an affidavit that briefly reviews in a neutral and
uncontroversial way the procedures that took place below and the categories of
evidence that the parties placed before the administrator. As long as the
affidavit does not engage in spin or advocacy – that is the role of the
memorandum of fact and law – it is admissible as an exception to the general
rule.
[46]
But “[c]are must be
taken to ensure that the affidavit does not go further and provide evidence
relevant to the merits of the matter decided by the administrative
decision-maker, invading the role of the latter as fact-finder and
merits-decider”: Access Copyright, above at paragraph 20(a).
[47]
In this case, the first 18 paragraphs of the
Agency’s affidavit filed before the Federal Court are helpful and orienting. In
the relatively simple record we have here, it was not necessary for the
affidavit to do that, but no objection can be taken to it. Those paragraphs are
permissible under the general background exception.
[48]
But paragraphs 19-21 of the affidavit cross the
line. Paragraph 19 is argumentative, much like a paragraph in a memorandum of
fact and law, urging a particular result upon the reviewing court. And
paragraphs 20 and 21 speak further on the factual merits of the matter,
something that was for the adjudicator, not the Federal Court.
[49]
The Federal Court should not have relied upon
the facts and figures contained in paragraphs 20-21 of the affidavit to make a
finding of fact about the financial hardship that would be visited upon the
Agency as a result of the adjudicator’s interpretation of article 17.21 of the
PIPSC collective agreement. The adjudicator, as the fact-finder on the merits,
declined to make such a factual finding. It was not for the Federal Court,
restricted to its role as a reviewing court, to make it.
[50]
Even if the
adjudicator had made a factual finding on that point, in the absence of another
recognized exception to the general rule of inadmissibility applying, the
Federal Court could not entertain evidence varying or supplementing it.
[51]
The Federal Court considered the evidence in
paragraphs 20-21 of the affidavit to be familiar to the parties, accurate,
disclosed in a timely way, and not prejudicial (at paragraph 41). All that may
be so, but that does not make the evidence admissible. To the extent that Chopra
v. Canada (Treasury Board) (1999), 168 F.T.R. 273 (T.D.), relied upon by
the Federal Court, says otherwise, it should not be followed.
[52]
The test set out
at paragraphs 44-46, above, was not met here. Paragraphs
20-21 of the affidavit do not supply general background information designed to
assist the reviewing court in understanding the issues. Rather, they offer additional
evidence on the factual merits designed to encourage the reviewing court to
form its own views on the factual merits contrary to the demarcation of roles
between it and the adjudicator. That evidence should have been placed before
the adjudicator for his assessment as the fact-finder, not before the Federal
Court on review.
[53]
Even though no formal motion was brought against
paragraphs 20-21 of the affidavit, Ms. Delios did not accept they could be used
in the way the Federal Court used them. In those circumstances, the Federal
Court should have regarded them as improper and should not have considered
them.
[54]
Overall, I conclude that the adjudicator’s
decision passes muster under reasonableness review.
C. Proposed disposition
[55]
I would allow the appeal, set aside the judgment
of the Federal Court dated November 5, 2014 in file T-1957-13, dismiss the
application for judicial review and restore the order dated November 1, 2013 of
the adjudicator in file 566-34-3487.
[56]
In the event of this disposition, counsel
helpfully agreed on the issue of costs. In accordance with their agreement, I
would award Ms. Delios her costs of this appeal and the application in the
Federal Court in the total amount of $5,000, all inclusive.
“David Stratas”
“I agree
A.F. Scott J.A.”
“I agree
Richard Boivin J.A.”
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