[1994] 2 F.C. 393
T-1201-93
Keith Jones (Applicant)
v.
Treasury Board (Health and Welfare Canada) (Respondent)
Indexed as: Jones v. Canada (Treasury Board) (T.D.)
Trial Division, Denault J.—Ottawa, January 17 and 27, 1994.
Public Service — Labour relations — Eligibility for injury-on-duty leave with pay — Employee sustaining work-related injury in plane crash — Instead of claiming compensation from Worker’s Compensation Board (WCB), applicant elected, pursuant to Government Employees Compensation Act (GECA), to sue third parties — Adjudicator’s determination effect of GECA to preclude eligibility for injury-on-duty leave with pay where employee has elected to bring civil suit not clearly irrational and resulting from interpretation reasonably attributable to words of collective agreement — WCB’s authority to make determination (required by collective agreement) applicant unable to perform duties due to work-related injury ended when applicant made election.
The applicant, a Public Service employee working as a nurse for Health and Welfare Canada in Manitoba, sustained serious work-related injuries in a plane crash. The Government Employees Compensation Act (GECA) provided two mutually exclusive options for seeking compensation: to claim compensation from the Manitoba Worker’s Compensation Board (WCB) or to bring a civil action against the airline and pilot. He chose to claim from the third parties.
When his sick leave and vacation leave credits were exhausted, the applicant requested, and was denied, injury-on-duty leave with pay pursuant to clause 17.12 of the collective agreement between Treasury Board and PIPS. This was an application for judicial review of the Adjudicator’s decision denying the applicant’s grievance against the employer’s refusal. The Adjudicator found that clause 17.12 of the collective agreement was subject to the GECA and that since the applicant elected not to receive compensation under that Act, he was not eligible for injury-on-duty leave with pay. The Adjudicator also found that the WCB did not make the determination required by the collective agreement that the applicant was unable to perform his duties because of a work-related injury.
Held, the application should be dismissed.
Decisions of adjudicators of the PSSRB are protected by a privative clause, section 101 of the Public Service Staff Relations Act. Recent decisions of the Supreme Court of Canada have indicated that significant deference should be accorded to decisions of the PSSRB and, in particular, to adjudicators interpreting a collective agreement.
The Adjudicator’s determination that the effect of the GECA, as a result of paragraph 57(2)(b) of the Public Service Staff Relations Act, was to preclude the eligibility for injury-on-duty leave with pay when an employee has elected to bring civil suit against possibly liable third parties was not “clearly irrational” and resulted from “an interpretation reasonably attributable to the words of the agreement”.
It was not unreasonable, on the basis of the evidence, for the Adjudicator to conclude that the WCB did not make a determination as required by clause 17.12 of the collective agreement. It was also reasonable in so far as it was based on a legal finding that the WCB had no authority to make such a determination after the applicant had made his election.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Government Employees Compensation Act, R.S.C., 1985, c. G-5, ss. 2, 4(1)a)(i),(ii),(b),(2)(a),(b),(3)( a),(b),(4), 9(1),(2).
Public Service Staff Relations Act, R.S.C., 1985, c. P- 35, ss. 57(2)(a),(b), 101, Sch. II.
The Worker’s Compensation Act, R.S.M. 1987, c. W200, s. 50(2),(3).
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; (1993), 101 D.L.R. (4th) 673; 150 N.R. 161; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; (1993), 102 D.L.R. (4th) 402; 153 N.R. 81; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; (1979), 25 N.B.R. (2d) 237; 97 D.L.R. (3d) 417; 51 A.P.R. 237; 79 CLLC 14,209; 26 N.R. 341.
APPLICATION FOR JUDICIAL REVIEW of a decision of an adjudicator of the Public Service Staff Relations Board ([1993] C.P.S.S.R.B. No. 69 (QL)) denying the applicant’s grievance against his employer’s refusal of injury-on-duty leave with pay requested following a work-related accident but after he had elected to bring a civil suit against possibly liable third parties. Application dismissed.
COUNSEL:
Dougald E. Brown for applicant.
Lubomyr Chabursky for respondent.
SOLICITORS:
Nelligan/Power, Ottawa, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
Denault J.: This is an application for judicial review of a decision of an adjudicator, Louis Tenace, of the Public Service Staff Relations Board dated April 23, 1993 [[1993] C.P.S.S.R.B. No. 69 (QL)] denying the applicant’s grievance.
The grounds for the application are:
1. The Board erred in holding that the Applicant was not entitled to claim injury-on-duty leave with pay pursuant to the Collective Agreement governing relations between the parties.
2. Alternatively, the Board erred in holding that the Workers Compensation Board of Manitoba did not made [sic] a determination in the Applicant’s case and that he was therefore, not entitled to injury-on-duty leave with pay.
The applicant is seeking an order setting aside the decision of the Adjudicator.
FACTS
The applicant is employed as a nurse by Health and Welfare Canada in Little Grand Rapids, Manitoba. During his return from a work-related conference on February 5, 1992, his plane crashed and he was seriously injured. He reported his injuries to the Manitoba Worker’s Compensation Board (WCB) on March 5, 1992. On April 8, 1992, he received a letter from Labour Canada informing him that because his injuries were work-related and involved third parties (the airline and pilot) the Government Employees Compensation Act, R.S.C., 1985, c. G-5 (GECA), provided him with two mutually exclusive options for seeking compensation: to bring a civil action against the third parties or to claim compensation from the WCB. The applicant elected on April 10, 1993, to claim from the third parties. Correspondence from A. Tataryn, Adjudicator, WCB, to Labour Canada dated June 19, 1992, reads as follows:
Due to the nature of the accident, Stephen Jones had the right to claim compensation benefits, and may have had the right to take legal action against the other legal party involved.
Mr. Jones has now indicated his intention not to claim compensation benefits. Therefore, we regret we are unable to assume responsibility for any time loss from work or treatment rendered as a result of this accident.
After his sick leave and vacation leave credits were exhausted, the applicant requested injury-on-duty leave with pay pursuant to clause 17.12 of the Master Agreement between the Treasury Board and the Professional Institute of the Public Service of Canada (the collective agreement). This was denied by his employer. The applicant filed a grievance against this action with the Public Service Staff Relations Board (PSSRB). The Adjudicator denied the grievance.
DECISION
The relevant portion of the Adjudicator’s decision is as follows (pages 10 to 11 of the decision):
I do not agree with the grievor’s representative that clause 17.12 can operate independently and separately from the Government Employees Compensation Act. There is no question that the Act applies to employees of whom Mr. Jones is one. The grievor’s representative argued that for that Act to apply, it was necessary to have a reference in it somewhere in clause 17.12. Again, with respect, I disagree. The Government Employees Compensation Act is an act of Parliament applying to government employees with the exception of regular members of the Canadian Forces or of the Royal Canadian Mounted Police. In that respect, it is no different from any other act of Parliament which applies to government employees which is not alluded to by specific reference in this collective agreement. On this basis alone, the grievance cannot succeed. Mr. Jones has decided, after seeking legal advice, to pursue a personal lawsuit against Ministic Airlines. In so doing, he elected not to receive compensation pursuant to the provisions of the Government Employees Compensation Act.
In addition, based on the evidence adduced, I must conclude that the WCB did not make a determination as required by clause 17.12. It appears the WCB would have honoured the grievor’s claim based on the information it had, however, it was never required to do so as the grievor elected not to pursue his claim with the WCB.
The first basis for the Adjudicator’s denial of the grievance is his determination that clause 17.12 of the collective agreement is subject to the GECA since that Act applies to all Government employees. The applicant elected not to receive compensation under the GECA and, as such, is not eligible for injury-on-duty leave with pay. The second basis for his decision is his finding that the WCB did not make the determination required by the collective agreement that the applicant was unable to perform his duties because of a work-related injury.
ISSUES
1. Did the Adjudicator err in his finding that an election pursuant to subsection 9(1) of the GECA to claim compensation from third parties precludes entitlement to injury-on-duty leave with pay pursuant to clause 17.12 of the collective agreement?
2. Did the Adjudicator err in his finding that the WCB did not make the determination required by clause 17.12 of the collective agreement that the applicant was unable to work because of a work-related injury?
STATUTORY PROVISIONS
Subsection 57(2) of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 reads:
57. …
(2) No collective agreement shall provide, directly or indirectly, for the alteration or elimination of any existing term or condition of employment or the establishment of any new term or condition of employment,
(a) the alteration or elimination or the establishment of which would require or have the effect of requiring the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating moneys required for its implementation; or
(b) that has been or may be established pursuant to any Act specified in Schedule II.
The Government Employees Compensation Act is listed in Schedule II.
The relevant provisions of the GECA are as follows:
2. In this Act,
…
“employee” means
(a) any person in the service of Her Majesty who is paid a direct wage or salary by or on behalf of Her Majesty,
…
4. (1) Subject to this Act, compensation shall be paid to
(a) an employee who
(i) is caused personal injury by an accident arising out of and in the course of his employment, or
(ii) is disabled by reason of an industrial disease due to the nature of the employment; and
(b) the dependants of an employee whose death results from such an accident or industrial disease.
(2) The employee or the dependants referred to in subsection (1) are, notwithstanding the nature or class of the employment, entitled to receive compensation at the same rate and under the same conditions as are provided under the law of the province where the employee is usually employed respecting compensation for workmen and the dependants of deceased workmen, employed by persons other than Her Majesty, who
(a) are caused personal injuries in that province by accidents arising out of and in the course of their employment; or
(b) are disabled in that province by reason of industrial diseases due to the nature of their employment.
(3) Compensation under subsection (1) shall be determined by
(a) the same board, officers or authority as is or are established by the law of the province for determining compensation for workmen and dependants of deceased workmen employed by persons other than Her Majesty; or
(b) such other board, officers or authority, or such court, as the Governor in Council may direct.
…
9. (1) Where an accident happens to an employee in the course of his employment under such circumstances as entitle the employee or his dependants to an action against a person other than Her Majesty, the employee or the dependants, if entitled to compensation under this Act, may claim compensation under this Act or may claim against that other person.
(2) Where a claim is made against a person other than Her Majesty and less is recovered and collected, either on a settlement approved by the Minister or under a judgment of a court of competent jurisdiction, than the amount of compensation to which the employee or dependants who made the claim are entitled under this Act, the difference between the amount so recovered and collected and the amount of that compensation shall be paid as compensation to the employee or dependants.
(3) If the employee or the dependants referred to in subsection (1) elect to claim compensation under this Act, Her Majesty shall be subrogated to the rights of the employee or dependants and may maintain an action in the name of the employee or dependants or of Her Majesty against the person against whom the action lies and any sum recovered shall be paid into the Consolidated Revenue Fund.
(4) Where an action is brought under subsection (3) and the amount recovered and collected exceeds the amount of compensation to which the employee or his dependants are entitled under this Act, there may be paid out of the Consolidated Revenue Fund to the employee or his dependants such portion of the excess as the Minister with the approval of the Treasury Board deems necessary, but if after that payment has been made the employee becomes entitled to an additional amount of compensation in respect of the same accident, the amount paid under this subsection may be deducted from the additional compensation.
Clause 17.12 of the Master Agreement between the Treasury Board and the Professional Institute of the Public Service of Canada (the collective agreement) provides the following:
17.12 Injury-on-Duty Leave With Pay
An employee shall be granted injury-on-duty leave with pay for such reasonable period as may be determined by the Employer where it is determined by a Provincial Worker’s Compensation Board that he is unable to perform his duties because of:
(a) personal injury accidentally received in the performance of his duties and not caused by the employee’s willful misconduct,
(b) sickness resulting from the nature of his employment,
or
(c) exposure to hazardous conditions in the course of his employment,
if the employee agrees to pay to the Receiver General of Canada any amount received by him for loss of wages in settlement of any claim he may have in respect of such injury, sickness or exposure.
APPLICANT’S POSITION
The applicant maintains that clause 17.12 of the collective agreement provides for a mandatory grant of injury-on-duty leave with pay if the following conditions are met: (1) a determination by the WCB that the injury is work-related and (2) an undertaking by the applicant to repay any amount received by him for loss of wages in settlement of any claim. In his submission, the guarantee of full salary if an employee is injured on duty is a benefit negotiated between the parties independent of the GECA. There is no express limitation of its application to claims under the GECA. Also, it is the applicant’s submission that the only interpretation of the provision which gives effect to all of the words used is that it can only apply in circumstances where an employee has waived the right to compensation and elected to bring an action. It does not automatically follow from the requirement that a determination be made by the WCB that an employee is only eligible for injury-on-duty leave with pay where he has elected to claim compensation benefits. The WCB may make a determination that an employee is unable to perform his duties because of a work-related injury even if the employee has decided not to claim under the GECA or provincial legislation. This determination “is simply a determination by an independent third party that an employee is truly disabled from performing his duties. This determination is entirely independent from the employee’s election to either seek compensation or proceed with a civil action.”
Secondly, the applicant submits that the Adjudicator’s finding that the WCB did not make a determination that he was unable to perform his duties because of a work-related injury is an erroneous finding made without regard to the material before him in a capricious or perverse manner. In addition to the letter of June 19, 1992, the applicant refers specifically to correspondence between A. Tataryn and the applicant dated March 11, 1993, indicating that had he elected to pursue compensation benefits his claim would have been approved.
RESPONDENT’S POSITION
The respondent submits that according to paragraph 57(2)(b) and Schedule II of the Public Service Staff Relations Act the interpretation of the collective agreement must be consistent with the GECA. To interpret clause 17.12 of the collective agreement in a manner that allows an employee to receive injury-on-duty leave with pay and simultaneously maintain a private lawsuit would circumvent the election principle established in subsection 9(1) of the GECA.
Regarding the Adjudicator’s finding that a determination within the meaning of clause 17.12 had not been made, the respondent submits that the determination required must be one which the WCB had the authority to make. The only legislation which grants the WCB authority to make such determinations in respect of federal employees is the GECA. In support of this proposition, they refer to subsection 50(3) of The Worker’s Compensation Act, R.S.M. 1987, c. W200, which provides that the WCB may only exercise powers given to it and subsection 50(2) of that Act and subsection 4(3) of the GECA giving it the authority to administer the GECA and determine compensation. In addition, the WCB only becomes seized with a claim and authorized to make a determination once an election to claim compensation is made. Therefore, the correspondence from Mr. Tataryn to the applicant cannot constitute a determination within the mandate of the WCB. The respondent also refers to a letter prepared at the time of the hearing before the PSSRB from Ms. Lori C. Ferguson Sain, Legal Counsel, WCB, to counsel for the respondent and to the Professional Institute of the Public Service of Canada stating:
In connection with the accident of February 5, 1992, Mr. Jones as a worker and his employer each filed notices of the accident with the WCB, as required under the Act and a claim file was opened by the WCB. However, as the accident involved a third party not covered by the Act, Mr. Jones elected not to claim compensation pursuant to subsection 9(1) of the Act and accordingly, the WCB has no authority to determine his entitlement to compensation at the present time.
ANALYSIS
It is important to note at the outset that decisions of adjudicators of the PSSRB are protected by a privative clause, section 101 of the Public Service Staff Relations Act, which reads as follows:
101. (1) Except as provided in this Act, every order, award, direction, decision, declaration or ruling of the Board, an arbitrator appointed under section 63, or an adjudicator is final and shall not be questioned or reviewed in any court.
(2) No order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Board, an arbitrator appointed under section 63 or an adjudicator in any of the proceedings of the Board, arbitrator or adjudicator.
In addition, the Supreme Court has rendered two recent decisions which have considered the appropriate standard of judicial review in the labour relations context. Both of these decisions apply in this instance: the first considered the standard of review under the above privative clause (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941) (PSAC) and the second considered the standard to be applied to decisions of an adjudicator interpreting a collective agreement (United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316) (Bradco). Both of these decisions indicate that significant deference should be accorded to decisions of the PSSRB and, in particular, to adjudicators interpreting a collective agreement.
In PSAC at page 955, the Court found that the appropriate standard of judicial review of decisions within the jurisdiction of the PSSRB and subject to section 101 of the Public Service Staff Relations Act is the “patently unreasonable” test set out in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227, at page 237:
… was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?
The Court in PSAC provided another formulation of the “patently unreasonable” test at pages 963-964:
Thus, based on the dictionary definition of the words “patently unreasonable”, it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test.
…
It is not enough that the decision of the Board is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational.
In Bradco, at pages 339 and 341, the Court found that even in the absence of a full privative clause:
… the arbitrator’s relative expertise mandates that the court defer to the decision of the arbitrator in this case unless his decision is found to be patently unreasonable.
…
… the court will defer even if the interpretation given by the tribunal to the collective agreement is not the “right” interpretation in the court’s view nor even the “best” of two possible interpretations, so long as it is an interpretation reasonably attributable to the words of the agreement.
The question I must determine, therefore, is whether the Adjudicator’s interpretation is “clearly irrational” or whether it cannot reasonably be “attributable to the words of the agreement.” The applicant argued that the patently unreasonable test should not apply in this instance because the issues being determined by the Adjudicator concerned the interplay between tort law and worker’s compensation schemes, not labour relations—the Adjudicator’s particular field of expertise. I must disagree. The interpretation and factual findings required by the decision of the Adjudicator fall squarely within the field of labour relations.
In my opinion, the Adjudicator’s determination that the effect of the GECA is to preclude eligibility for injury-on-duty leave with pay when an employee has elected to bring a civil suit against possibly liable third parties is not “clearly irrational” and results from “an interpretation reasonably attributable to the words of the agreement” for the following reasons.
The applicant’s submission that injury-on-duty leave with pay contemplated by clause 17.12 is a different benefit from the compensation provided under the provincial WCB scheme and the GECA is correct only in part. Subsection 4(4) of the GECA provides that a federal employee injured in a work-related incident has a right to compensation. Subsections 4(2) and 4(3) provide that the rate and conditions of compensation are to be determined by the WCB of the province in which the employee is usually employed in the same manner as the worker’s compensation scheme applies to other workers in that province. In Manitoba, The Worker’s Compensation Act provides for a maximum level of compensation equal to 75% of the worker’s average earnings.
In clause 17.12 of the collective agreement, the parties to the agreement negotiated a guarantee that federal employees who are members of the Professional Institute of the Public Service of Canada and who have been injured as a result of a work-related incident would receive a full salary for a reasonable period. In so far as clause 17.12 guarantees a full salary while The Worker’s Compensation Act of Manitoba only provides a maximum of 75% of the employee’s earnings, the applicant’s submission that the benefits provided under the two schemes are different is correct. However, they are substantially the same benefit in so far as they both represent income replacement or an income guarantee for federal employees injured in the course of their duties.
Usually there is nothing to prevent parties to a collective agreement from negotiating terms and conditions of employment which increase the benefits already provided by statute unless there is an express statutory prohibition. In my opinion, paragraph 57(2)(b) of the Public Service Staff Relations Act constitutes such a prohibition. It prohibits the alteration by means of a collective agreement of “any existing term or condition of employment … that has been or may be established pursuant to any Act specified in Schedule II.” The GECA is listed in Schedule II and in subsection 9(1) it provides a term or condition of employment which requires federal employees to choose between claiming compensation under the Act and claiming compensation pursuant to a civil action against possibly liable third parties. Subsection 9(2) provides that an employee who chooses to sue for compensation and who receives less than would have been provided under the GECA is entitled to a top-up equal to the difference. Clearly, there is nothing unreasonable in the Adjudicator’s interpretation of clause 17.12 of the collective agreement within the context of the compensation scheme set out in section 9 of the GECA; in fact such an analysis is mandated by paragraph 57(2)(b) of the Public Service Staff Relations Act. Nor can I find that his conclusion that injury-on-duty leave with pay provisions cannot operate independently from the GECA is clearly irrational.
Regarding the Adjudicator’s second conclusion that the WCB did not make a determination as required by clause 17.12 of the collective agreement, I cannot find that it was unreasonable considering, in particular, his previous conclusion. It appears that this conclusion is based in part upon his evaluation of the evidence, the various letters referred to above. As a finding of fact, it appears to me to be reasonable in that the Adjudicator had regard to the evidence before him and it was not made in a perverse or capricious manner. The conclusion is also reasonable in so far as it is based on a legal finding that the WCB had no authority to make the determination required by clause 17.12 in respect of employees who have elected to bring a civil action against possibly liable third parties. I would agree with the respondent’s submissions and the letter of Lori Sain that the WCB’s authority to make a determination that Mr. Jones would be unable to perform his duties because of a work-related injury ended when he made his election.
CONCLUSION
For the above reasons, I am of the opinion that the Adjudicator did not err when he denied the applicant’s grievance. I would therefore dismiss the application.