[1994] 1 F.C. 674
T-2013-92
Attorney General of Canada (Applicant)
v.
Rudolph Medford (Respondent)
Indexed as: Canada (Attorney General) v. Medford (T.D.)
Trial Division, Joyal J.—Ottawa, March 24 and October 27, 1993.
Public Service — Jurisdiction — Application for judicial review of Adjudicator’s declaration employer not satisfying spirit and intent of provision of collective agreement requiring equitable distribution of standby duties by offering to train one mechanic in emergency repair vehicle repairs in addition to respondent — Where privative clauses, i.e. PSSRA, s. 101, courts more concerned with how result arrived at, than result — Adjudicator reasoning shortage of qualified standby mechanics risk to proper operational requirements at Canada’s busiest airport — Whether exceeding jurisdiction by entering into policy considerations — Bringing to interpretation expertise in employer-employee relations — Decision not so patently unreasonable as to warrant judicial interference — No remedy provided but merely issued declaration, open to him on evidence before him.
This was an application for judicial review of the declaration by an Adjudicator, appointed under the Public Service Staff Relations Act that he was not satisfied that the employer had complied with the spirit and intent of the equitable distribution of standby duties provision in the Master Collective Agreement. The respondent was an equipment maintenance mechanic at Pearson International Airport. Under the Master Collective Agreement, the employer undertook to provide for equitable distribution of standby duties to deal with emergencies with respect to equipment. There is a special requirement at the Airport for mechanics qualified to repair emergency repair vehicles (ERVs). At all material times the respondent was the only employee so qualified. He filed a grievance that the employer’s failure to have more than one mechanic qualified for ERV repairs was a breach of the standby clause. The employer agreed to have a second mechanic trained in the maintenance of ERVs who would thereafter alternate standby duties with the respondent. The respondent requested that all 11 mechanics be trained and go on rotating standby duties. The employer stated that operational requirements combined with a shortage of staff precluded training all mechanics. The Adjudicator held that such restrictions were not an excuse and that he was not satisfied that the employer had complied with the spirit and intent of the collective agreement. At the time of the Adjudicator’s decision, the privative clause found in Public Service Staff Relations Act, section 101 had not yet been repealed. The issue was whether the Adjudicator’s finding was patently unreasonable.
Held, the application for judicial review should be dismissed.
Where an administrative tribunal is protected by a privative clause, courts should be more concerned with how the result was arrived at than with the result itself.
Taken in isolation, the Adjudicator’s interpretation would be wrong in law and open to judicial review. To suggest, as might be the effective result of the Adjudicator’s decision, that the employer’s undertaking to distribute standby duties fairly imposes a concomitant duty to train and qualify employees, simply to make the provision operative, might be regarded as a patently unreasonable departure from what is a simple formula to establish fair standby rosters and avoid favouritism or discrimination. However, it might also be argued that the employer has an obligation “to provide” for the equitable distribution of standby duties, no matter how many qualified people are employed. If an employer needs to train its employees or hire new ones “to provide” for equitable distribution and thereby fulfill its contractual obligation, it must do so. The Adjudicator viewed the shortage of duly qualified standby mechanics for ERVs as a risk to the proper operational requirements of mechanical and repair services at Canada’s busiest airport. He expressed concern as to what might happen if the sole qualified standby mechanic is unable to report when an emergency arises. While the Adjudicator may have entered into policy considerations which were beyond his mandate, as a member of the Public Service Staff Relations Board, he may have acquired an expertise in employer-employee relations which went beyond the narrow constructionist approach to the interpretation of a particular provision of the collective agreement. On the evidence before him, the Adjudicator could stretch the extent of the “obligation” imposed by the standby provision to send a message to the employer, while being extremely careful as to the kind of relief accorded the grievor. He merely issued a declaration that he was not satisfied that the employer had complied with the spirit and intent of the collective agreement. That was no remedy at all. Viewed in that light, the decision was not so patently unreasonable that Court intervention was warranted.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Public Service Staff Relations Act, R.S.C., 1985, c. P-35, ss. 96(2), 101 (rep. by S.C. 1992, c. 54, s. 73).
CASES JUDICIALLY CONSIDERED
APPLIED:
Caimaw v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; (1989), 62 D.L.R. (4th) 437; [1989] 6 W.W.R. 673; 40 Admin. L.R. 181; 40 B.C.L.R. (2d) 1; 89 CLLC 14,050; 102 N.R. 1; Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; (1991), 80 D.L.R. (4th) 520; 48 Admin. L.R. 161; 91 CLLC 14,017; 123 N.R. 161.
APPLICATION for judicial review of the Adjudicator’s declaration that he was not satisfied that the employer had complied with the spirit and intent of the standby provision in the Master Collective Agreement. Application dismissed.
COUNSEL:
Harvey A. Newman and John C. Healy for applicant.
Andrew J. Raven and David Yazbeck for respondent.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Raven, Jewitt and Allen, Ottawa, for respondent.
The following are the reasons for order rendered in English by
Joyal J.: In this application for judicial review, the applicant asks this Court to quash a decision of an adjudicator who had been appointed under the provisions of the Public Service Staff Relations Act [R.S.C., 1985, c. P-35] to settle an employee grievance.
The respondent grievor is an equipment maintenance mechanic in the General Labour and Trades Group (GL&T) in the workshop at Pearson International Airport near Toronto. The terms and conditions of his employment are governed by a Master Collective Agreement between Treasury Board and the Public Service Alliance of Canada. This agreement recognizes that emergencies may arise with respect to equipment and it provides accordingly for standby duties to its employees. There is a minimal remuneration payable to any employee on standby, with the added provision of overtime pay at the applicable rate or a minimum of four hours’ pay if required to report for work.
The pertinent clause in the agreement which is the subject of the grievance and on which the Adjudicator had to rule is clause M-30.02, which reads as follows:
M-30.02 An employee designated by letter or by list for standby duty shall be available during his or her period of standby at a known telephone number and be available to return to duty as quickly as possible if called. In designating an employee for standby, the employer will endeavour to provide for equitable distribution of standby duties. [Underline mine.]
This provision for equitable distribution of standby duties seems fair enough. Every qualified employee will have his or her turn to perform standby duties. At Pearson International Airport, however, there is a special requirement for mechanics qualified to repair emergency repair vehicles (ERVs). At all material times, only one employee was so qualified. So what happens then to the equitable distribution scheme provided for in clause M-30.02?
This is where the respondent filed what I might call an imaginative grievance. The thrust of his grievance was that by reason of the employer’s failure to have more than one mechanic qualified for ERV repairs, the employer was in breach of clause M-30.02.
The employer, in a fairly positive response to the grievance, agreed to have a second mechanic trained in the maintenance of ERV’s who would thereafter alternate standby/callback duties with the respondent grievor.
The grievor was not happy with this. At the second grievance level, he requested that all 11 mechanics be trained and on becoming qualified, they would all go on rotating standby duties. No way, said the employer in reply. Operational requirements did not permit it. The employer has limited resources. It is not only a matter of specialized training, but one also of familiarity with the equipment and its quirks in order to ensure readiness, which cannot be achieved through the use of 11 mechanics. The employer reiterated, however, its plan to train a second mechanic.
At the final level of the grievance procedure, the employer repeated that it was not in violation of clause M-30.02, but again stated that the proposal to train a second ERV mechanic should resolve the problem.
Finally came the reference to adjudication. After reviewing the evidence, the Adjudicator first of all endorsed the principle that contractual obligations are expected to be honoured. It is true, he said, that to meet the obligation respecting equitable distribution of standby duties, the employer would have been required to provide training, a programme which the employer said was not possible due to operational requirements combined with a shortage of staff.
In the opinion of the Adjudicator, this was not a valid excuse. Otherwise, he said, most aspects of a collective agreement would be rendered worthless, to which he added that staff training must take into consideration the employer’s contractual obligation under clause M-30.02. This, in his view, is a definite obligation and the employer’s decision to train one more mechanic could only be considered a symbolic gesture.
The Adjudicator then stated the following:
There is no specific remedy involved in this case, only a declaration’ or a determination that the employer did not properly interpret the provision of the clause in question. For the reasons stated, I am not satisfied that the employer has complied with the spirit and intent of Article M-30.02 and I am prepared to make a declaration to that effect.
Since no further nor specific remedy was requested, I will not make further orders; however, I would note that I am, to say the least, surprised that the employer would not ensure that more than one additional employee would be fully trained to repair and modify emergency response vehicles at Canada’s busiest airport. What the precise number of employees may be, I am not sure; however, it should be sufficient to allow for all contingencies and proper personnel development and opportunity.
It is a reasonable assumption that the employer did not take kindly the Adjudicator’s attempt to graft into his interpretation of clause M-30.02 a directive that management might clean up its act. The employer was being told that its undertaking to distribute standby duties on an equitable basis has now become an obligation to train an undisclosed number of employees. This, said the employer, is an interpretation of clause M-30.02 which its language will not bear. It is patently unreasonable. It is contrary to subsection 96(2) of the Public Service Staff Relations Act which prohibits an adjudicator from rendering a decision which requires an amendment to a collective agreement.
To sum up, says the employer, if the grounds for the respondent’s grievance are said to be somewhat imaginative, then the Adjudicator’s interpretation of the provision is even more imaginative and it should not be allowed to stand. The decision should be struck.
In reply, the respondent rests his case on the doctrine of “patently unreasonable”, a doctrine well recognized in judicial review cases where an impugned decision is protected by a privative clause. Curial intervention in such cases should only be permitted when an error is so patently and obviously unreasonable that no legerdemain or mental calisthenics will save it. The Adjudicator’s decision is not of that kind, says the respondent. It is an interpretation which the provision of the agreement can reasonably bear, keeping in mind that it is consonant with the whole of the agreement where duties and obligations are mutually imposed or respectively shared.
FINDINGS
There is no doubt that the privative clause found in section 101 [rep. by S.C. 1992, c. 54, s. 73] of the Public Service Staff Relations Act gives an adjudicator’s decision some protection from judicial intervention. In Caimaw v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, La Forest J., on behalf of the majority of the Supreme Court of Canada, stated at pages 1003-1004:
Where, as here, an administrative tribunal is protected by a privative clause, this Court has indicated that it will only review the decision of the Board if that Board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making a patently unreasonable error of law in the performance of its function; see Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227. The tribunal has the right to make errors, even serious ones, provided it does not act in a manner “so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review” (p. 237). The test for review is a “severe test”; see Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, at p. 493. This restricted scope of review requires the courts to adopt a posture of deference to the decisions of the tribunal. Curial deference is more than just a fiction courts resort to when they are in agreement with the decisions of the tribunal. Mere disagreement with the result arrived at by the tribunal does not make that result “patently unreasonable”. The courts must be careful to focus their inquiry on the existence of a rational basis for the decision of the tribunal, and not on their agreement with it. The emphasis should not be so much on what result the tribunal has arrived at, but on how the tribunal arrived at that result. Privative clauses, such as those contained in ss. 31 to 34 of the Code, are permissible exercises of legislative authority and, to the extent that they restrict the scope of curial review within their constitutional jurisdiction, the Court should respect that limitation and defer to the Board.
This approach was followed by the Supreme Court of Canada in Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614, at page 628. The problem, however, is that the doctrine of “patently unreasonable” might only beg the question when dealing with a particular case. As La Forest J. pointed out, supra, curial deference is more than just a fiction to which courts resort to when they are in agreement with the impugned decision. I daresay, however, that curial deference is not an easily exercisable virtue when one is in complete disagreement with the decision.
In the case before me, I would be less than candid if I did not concede that, taken in complete isolation, the Adjudicator’s interpretation of clause M-30.02 is wrong in law and open to judicial review. It could be argued that the employer’s commitment to distribute standby duties equitably only applies when more than one employee is on the list, meaning of course when more than one employee is duly qualified to be on that list. To suggest, as might be the effective result of the Adjudicator’s decision, that the employer’s undertaking in that regard imposes a concomitant duty or obligation to train and qualify employees simply to make the provision operative might be regarded as a patently unreasonable departure from what is a simple formula to establish fair standby rosters and avoid favouritism or discrimination.
However, one may also argue that clause M-30.02 expressly states that the employer has an obligation “to provide” for the equitable distribution of standby duties, no matter how many duly qualified people are employed. If the employer needs to train its employees or hire new ones “to provide” for equitable distribution and thereby fulfill its contractual obligation, it must do so. This requirement is very understandable, as Pearson is Canada’s busiest airport and the employees’ emergency responsibilities are extensive.
Obviously, the latter was the Adjudicator’s approach. In part of his reasons for decision, he says that the obligation imposed by clause M-30.02 is not made subject to operational requirements but that this is nevertheless an important factor. It is noted that clause M-30.02 is unqualified, in that it contains no restrictions pertaining to operational requirements or shortages of staff. The Adjudicator goes on to say that the employer cannot use such restrictions as an excuse. It becomes clear, however, in the Adjudicator’s reasoning, that he viewed the shortage of duly qualified standby mechanics for ERVs as a risk to the proper operational requirements of mechanical and repair services at Canada’s busiest airport. In effect, he expresses concern as to what might happen if the sole qualified standby mechanic is unable to report when an emergency arises.
In these observations, it might be argued that the Adjudicator is entering into policy considerations which go beyond his mandate and create some kind of jurisdictional problem. On the other hand, the Adjudicator, as a member of the Public Service Staff Relations Board, has seen these kinds of situations come and go and one may presume that he has acquired an expertise in employer-employee relations which go beyond the narrow constructionist approach to the interpretation of a particular provision of the Collective Agreement. In other words, the Adjudicator is inclined to look at the broad picture and read into clause M-30.02 an obligation which opens the door to a kind of Paulian action leading to more positive measures by the employer to ensure more effective repair services to ERVs.
I cannot of course read the Adjudicator’s mind. I surmise, however, that on the evidence before him, he could stretch the extent of the “obligation” imposed by clause M-30.02 to provide a message to the employer, but at the same time, be extremely careful in the kind of relief he would provide the grievor. He merely issued a declaration and his decision so states. In that regard, he did not go any further than he had to. No remedy is provided, no order is issued. He simply declares that he is not satisfied that the employer has complied with the spirit and intent of clause M-30.02.
Viewed in that light, I cannot find the decision is so patently unreasonable that court intervention is warranted. The application for judicial review is accordingly dismissed.