A-338-89
Attorney General of Canada (Applicant)
v.
David W. Paton (Respondent)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. PATON (CA.)
Court of Appeal, Iacobucci C.J., Mahoney and
Marceau JJ.A.—Ottawa, November 22, 1989 and
January 16, 1990.
Public service — Labour relations — S. 28 application to
review PSSRB decision holding respondent entitled to overtime
pay for entire period (6 days) on ship while on special employ
ment assignment as Chemistry Technologist with Department
of Fisheries and Oceans — Construction of overtime compen
sation provisions of Master Agreement — Board found facts
indistinguishable from two F.C.A. decisions where employees
held entitled to wages for entire time at sea — In view of
severe restrictions on respondent's freedom and mobility,
Board concluded respondent "at work" for entire period on
ship and entitled to overtime compensation for virtually all
time at sea in accordance with group specific agreement — S.
28 application allowed as Board misconstrued Master Agree
ment — Board erred in failing to apply clause M-28.05
whereby employees to be paid only for "actual hours worked"
when travelling in transport in which required to work and
which serves as living quarters during tour of duty — "Actual
hours worked" describing work in normal sense of doing or
engaging in specific performance of duties — "Captive time"
on ship not "actual hours worked" — Master Agreement did
not intend employee be paid double overtime rate while
allowed full night's sleep for number of consecutive nights on
voyage within job description duties and of which advised well
in advance.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
CASES JUDICIALLY CONSIDERED
APPLIED:
Apesland v. Canada, A-669-87, Mahoney J.A., judgment
dated 2 4 / 5 /88, F.C.A., not reported; Duggan and Trea
sury Board (1985), 8 PSSRB Decisions 44.
DISTINGUISHED:
Canada v. Falconer, A-417-86, Heald J.A., judgment
dated 27/2/87, F.C.A., not reported; affg (1986), 9
PSSRB Decisions 30 (sub nom. Falconer and O'Leary
and Treasury Board); Canada v. Falconer, A-416-86,
Heald J.A., judgment dated 27/2/87, F.C.A., not report
ed; affg (1986), 9 PSSRB Decisions 25 (sub nom.
O'Leary and Humphreys and Treasury Board).
REFERRED TO:
Osmack v. Canada, A-51-89, lacobucci C.J., judgment
dated 21/9/89, F.C.A., not yet reported.
COUNSEL:
Harvey A. Newman for applicant.
Andrew J. Raven for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Ottawa, for respondent.
Public Service Staff Relations Board,
Ottawa, on its own behalf.
The following are the reasons for judgment
rendered in English by
IACOBUCCI C.J.: This section 28 [Federal Court
Act, R.S.C., 1985, c. F-7] application seeks to
review and set aside a decision of the Public
Service Staff Relations Board rendered on July 5,
1989 which held that the respondent was entitled
to overtime pay for the entire period spent on
board a ship while on a special employment assign
ment even though he did not perform normal
work-related duties for the entire period. The
major issue in this application is whether the
Board member erred in so holding. More particu
larly, the applicant has argued that the Board
member failed to apply a provision of the appli
cable collective agreement governing rates of pay
for an employee who is assigned to perform duties
on a transportation vehicle or vessel which also
serves as his living quarters.
FACTS
By way of background, the respondent was at
the relevant time employed as a Chemistry Tech
nologist with the Department of Fisheries and
Oceans. The parties were governed by the Public
Service Alliance of Canada Master Agreement
and the Engineering and Scientific Support Col
lective Agreement (a group specific agreement).
The respondent's normal worksite was the Institute
of Ocean Sciences at Sydney, B.C. and his usual
hours of work there were 8.30 a.m. to 4.30 p.m.
Monday through Friday.
In the respondent's job description, it is stated
that he is expected to carry out:
... field surveys using ships, and launches to determine the
concentrations of trace metals in the marine environment and
to study the effects and degradation of natural and polluting
chemicals by:
—participating in cruises of up to four (4) weeks per year,
generally in B.C. coastal inlets (special assignments may
require offshore cruises);
On October 13, 1987, the respondent was
advised in writing of certain duties which he was
to perform on board the CSS Tully commencing
Sunday, October 18, 1987. In accordance with
these directions, the respondent boarded the CSS
Tully sometime after 10:00 p.m. Sunday evening,
October 18, 1987 and departed on board the ship
at approximately 1.00 a.m. on Monday, October
19, 1987.
There is no dispute as to his rate of pay for
October 18, 1987. On October 19, 1987, the
respondent spent only one-half hour performing
duties, and had no other specific work to perform
for the balance of the day. From October 20-23
inclusive, the respondent did not do any assigned
work beyond his ordinary 7 1 / 2 hour shift. On Octo-
ber 24, which was a "first day of rest" for the
respondent, he spent 7' hours performing
assigned duties and another nine hours aboard the
ship during which he did not perform assigned
duties. He left the ship at 4.30 p.m. on October 24
and checked into a hotel in Prince Rupert, B.C.
' See paragraph 6 of the specific duties and the job descrip
tion of the respondent, Casebook, p. 118.
The respondent kept a log of hours worked and
overtime hours while on board the ship. From
October 19-23 inclusive, the respondent claimed
regular pay for an ordinary 7 1 / 2 hour shift, pay at
time and one-half for another 7' hours and double
time pay for the remaining 8' hours of the day. In
other words, he claimed wages for the entire 24
hour period spent aboard the ship each day (minus
a one-half hour unpaid lunch break). In respect of
October 24, the "first day of rest", he claimed 7'
hours at time and one-half and 10 hours at double
time, in accordance with subclause 22.09(b) of the
group specific agreement.
The record reveals that, during the entire time
spent at sea, the respondent was subject to the
ship's standing orders, which dictated who could
associate with whom on board. The orders also
limited the time when recreation activities could
be undertaken. The ship itself was a 230 foot
research vessel, which was equipped with a modest
gym and sauna, and a library. While on board, the
respondent shared a cabin with another scientist.
It should be noted that during the entire time on
the ship, the respondent worked independently and
was not expected to be "on call" to perform duties
when requested.
On November 9, 1987, the respondent presented
a grievance claiming compensation for all hours
worked from 00.00 on October 19 to 18.00 on
October 24, 1987 with the exception of a one-half
hour period each day, representing his unpaid
meal break. The grievance was not resolved and
was eventually referred to adjudication on June
20, 1988. On July 5, 1989, the grievance was
upheld and the respondent was found to be entitled
to the entire overtime compensation which he
claimed.
THE BOARD DECISION
After noting that there was no dispute as to the
facts and pointing out that the respondent was not
able to leave the ship during the period in question
and that his range of activities was necessarily
limited even when he was not performing assigned
tasks, the Board member stated that the facts in
this case were not distinguishable from those of
Falconer' and O'Leary and Humphreys' in which
the grievors were found to be entitled to wages for
the entire time spent at sea. The Board member
then quoted with approval an extract from the
Falconer decision which concluded:
In light of all the evidence, it is my conclusion that the Grievors
were at work during the relevant period. At the end of the work
day, the Grievor were not able to leave the work site, go home
and be with friends or family. Any plans or commitments they
had made for their free time were, perforce, cancelled.
Although the Grievors were able to relax, or eat and sleep on
ship, they suffered a serious disruption to their daily routine as
a result of the decision to keep the ship at sea, the decision
which was made presumably for the benefit of the Employer's
operations. 4 [Emphasis added.]
I think it important to emphasize that the grievors
in the Falconer and O'Leary and Humphreys cases
were on a ship working when they were told late in
the day the ship would be staying out all night and
the issue was whether they were at work for the
entire time at sea. This is not exactly the issue in
dispute herein a point to which I shall return
below.
On the facts of this case, the Board member
noted that the Tully was neither the Queen Mary
nor the Love Boat and available leisure activities
were limited physically and by the ship's standing
orders. In view of the severe restrictions on the
respondent's freedom and mobility, the Board con
cluded he was "at work" for the entire period he
spent on the ship and was therefore entitled to
claim overtime compensation for virtually all the
2 Falconer and O'Leary and Treasury Board (1986), 9
PSSRB Decisions 30, June 19, 1986, 166-2-15281 and No.
166-2-15336; upheld, sub. nom. Canada v. Falconer, A-417-86,
Heald J.A., judgment dated 27/ 2 / 8 7, F.C.A., not reported.
J O'Leary and Humphreys and Treasury Board (1986), 9
PSSRB Decision 25, June 19, 1986, 166-2-15198 and No.
166-2-15199, upheld Federal Court of Appeal, February 27,
1987, sub. nom. Canada v. Falconer, A-416-86, Heald J.A., not
reported.
4 Casebook, p. 134.
time spent at sea in accordance with clause 22.09
of the group specific agreement.
The Board member also held that Article M-28
of the Master Agreement dealing with "Travelling
Time" had no application in the context of this
case and in that connection referred to reasons
given in the Duggan' adjudication and the
Apesland 6 decision of this Court which accepted
the Duggan adjudication as correctly decided.'
The applicant argues that the Board member
erred in failing to apply clause M-28.05 of Article
M-28 of the Master Agreement to limit the
amount of compensation payable to the respon
dent. It is argued that this clause provides the
scheme of payment where an employee travels by
any type of transport which serves as his or her
living quarters. As the ship was a type of transport
that served as the respondent's living quarters,
clause M-28.05 came into play and by its terms,
the respondent is entitled to the greater of regular
pay for the day and pay for actual hours worked.
Because the respondent did not perform duties
amounting to more than his ordinary 7' hour shift
on any day, he is entitled to no more than his
regular pay for each day.
The relevant provisions of Article M-28 of the
Master Agreement merit reproduction in full:
ARTICLE M-28
TRAVELLING TIME
M-28.01 For the purposes of this Agreement, travelling time is
compensated for only in the circumstances and to the extent
provided for in this Article.
M-28.02 When an employee is required to travel outside his
headquarters area on government business, as these expressions
are defined by the Employer, the time of departure and the
means of such travel shall be determined by the Employer and
the employee will be compensated for travel time in accordance
with clauses M-28.03 and M-28.04. Travelling time shall
include time necessarily spent at each stop-over enroute pro
vided such stop-over is not longer than three (3) Hours.
5 Duggan and Treasury Board (1985), 8 PSSRB Decisions
44, September 3, 1985 166-2-15033.
6 Apesland v. Canada, Federal Court of Appeal, May 24,
1988 (Court File No. A-669-87) Mahoney J.A., not reported.
7 Reasons for Judgment of the Court, idem at p. 1.
M-28.03 For the purposes of clauses M-28.02 and M-28.04, the
travelling time for which an employee shall be compensated is
as follows:
For travel by public transportation, the time between the
scheduled time of departure and the time of arrival at a
destination, including the normal travel time to the point of
departure, as determined by the Employer,
For travel by private means of transportation, the normal
time is determined by the Employer, to proceed from the
employee's place of residence or work place, as applicable,
direct to his destination and, upon his return, direct back to his
residence or work place.
In the event that an alternate time of departure and/or means
of travel is requested by the employee, the Employer may
authorize such alternate arrangements, in which case compen
sation for travelling time shall not exceed that which would
have been payable under the Employer's original determina
tion.
M-28.04 If an employee is required to travel as set forth in
clauses M-28.02 and M-28-03:
(a) On a normal working day on which he travels but does not
work, the employee shall receive his regular pay for the
day.
(b) On a normal working day on which he travels and works,
the employee shall be paid:
(i) his regular pay for the day for a combined period of
travel and work not exceeding his regular scheduled
working hours,
and
(ii) at the applicable overtime rate for additional travel
time in excess of his regularly scheduled hours of
work and travel, with a maximum payment for such
additional travel time not to exceed eight (8) hours'
pay at the straight-time rate of pay.
(c) on a day of rest or on a designated paid holiday, the
employee shall be paid at the applicable overtime rate for
hours travelled to a maximum of (8) hours' pay at the
straight-time rate of pay.
M-28.05 This Article does not apply to an employee when he
travels by any type of transport in which he is required to
perform work and/or which also serves as his living quarters
during a tour of duty. In such circumstances, the employee
shall receive the greater of:
(a) on a normal working day, his regular pay for the day,
or
(b) pay for actual hours worked in accordance with Article
M-20, Designated Paid Holidays and the overtime provi
sions of the relevant Group Specific Agreement.
M-28.06 Compensation under this Article shall not be paid for
travel time to courses, training sessions, conferences and semi
nars, unless the employee is required to attend by the
Employer.
DISCUSSION
At the outset, I should like to mention that it
has been recognized by this Court that "work" can
involve what has been called "captive time" or
time that normally would be non-working such as
sleeping, or waiting for an airplane and the like. 8 I
do not find it necessary to review this jurispru
dence or comment further on whether the deci
sions were correctly decided because, for the rea
sons that follow, I agree with the applicant's
position that the Board member failed to apply the
provision of clause M-28.05 herein and thereby
committed a reviewable error. 9
Clause M-28.05 appears to me to govern pre
cisely the type of situation at issue in this case.
Article M-28 prescribes special provisions for
paying an employee less than the full overtime rate
in cases where the employee is required to travel to
a work site, but where he or she does not perform
any work while so travelling. Clause M-28.05 is a
special exception to this "travelling time" payment
scheme by providing that employees are to be paid
their ordinary rates of pay, including overtime
rates, where work is performed in the course of
travelling or where the means of transport serves
as the employee's living quarters during a tour of
duty.
When the Board member states that Article
M-28 of the Master Agreement has no application
in the context of this case and refers in this respect
to the Duggan and Apesland decisions, he appears
to have misunderstood their effect. 1 ' In the instant
case, the applicant argues not that all of Article
M-28 relating to travelling time applies but rather
that the exception to Article M-28, namely clause
M-28.05, applies. This is exactly the result
obtained in Duggan and Apesland albeit with
slightly different wording in the corresponding
provisions of the applicable collective agreement.
it See e.g. Falconer, O'Leary and Humphreys, supra, notes
2, 3.
9 See e.g. Osmack v. Canada, Federal Court of Appeal,
Iacobucci C.J., September 21, 1989 (Court File No. A-51-89)
not yet reported.
10 See Reasons of the Board, Casebook, p. 136.
In Apesland, Mahoney J.A. stated that:
The application of Article 28 of the Collective Agreement is
excluded by clause 28.06 [the equivalent to clause M-28.05
herein]."
In other words, he held that clause M-28.06 pre
vailed in preference to the terms of Article M-28
dealing with travelling time generally. Here, the
Board member appears to have understood Apes-
land to mean that all of Article M-28, including
clause M-28.05, was inapplicable. This is not what
Mahoney J.A. said in Apesland nor what the
adjudicator said in Duggan, which was, as already
mentioned, expressly accepted by Mahoney J.A. as
correct.
Having concluded that clause M-28.05 of the
Master Agreement applies, it now remains to
decide its meaning. The clause stipulates that an
employee is to receive the greater of his or her
regular pay for the day and pay for "actual hours
worked". The question then arises: What are
actual hours worked? Do such hours mean time
during which work related duties were actually
performed or is the wording broad enough to
include, as counsel for the respondent urged, all
hours when an employee is "captive" on a ship,
including sleep and leisure time?
Counsel for the respondent argued that the deci
sions in Falconer and O'Leary and Humphreys are
of controlling force in this respect but I have
doubts about that proposition. Neither case
referred specifically to a provision comparable to
clause M-28.05 and it is speculative to conclude
whether there was such a clause or what it con
tained. Moreover, what was at issue in those cases
was whether the entire time spent on a ship con
stituted "work" and not whether time spent on the
ship was "actual hours worked" within the mean
ing of clause M-28.05. Consequently, I do not find
those cases of much help.
Apesland, supra, note 6, at p. 1.
In Duggan and Apesland comparable provisions
which allowed additional compensation for "actual
hours worked" were applied but the facts were
quite different from the case at bar. In Duggan, an
immigration officer escorted a deportee from Nova
Scotia to the Maine/New Brunswick border, spent
the night in St. Stephen, N.B., and drove back to
Halifax the next day. The employer agreed that
the drive down with the deportee was "work", and
the only question before the Board was whether
the drive back was work or travel time, in which
case Article M-28 would apply. The Board held
that the drive back constituted "actual hours
worked" and not mere travel time. In Duggan it
was clear that the grievor was not sitting idle for
any of the time claimed. In Apesland, the grievor
escorted a prisoner to Minot, North Dakota, and
claimed compensation for a period of several hours
during which he simply waited for a return flight.
This Court held that the wait, and the return trip,
were actual hours worked and not mere travel
time. While Apesland is perhaps closer to the facts
in the instant case than Duggan, nonetheless,
whatever idle time there was in Apesland was
closely connected and on a continuum with the
actual performance of work duties.
It seems to me that in looking at the language of
clause M-28.05 and its context, the use of the
adjective "actual" in the clause was intended to
convey a meaning that described work in the
normal sense of doing or engaging in the specific
performance of duties. The clause's reference to
living quarters implies that if an employee is
within the terms of clause M-28.05 then only the
time spent actually working will count for payment
and that so-called "captive time" on the ship is not
to be treated as actual hours worked. I believe this
interpretation to be reasonable and in accord with
what I believe was intended by the parties to the
collective agreement.
I find it difficult to accept that the Master
Agreement intended that an employee should be
paid at the double overtime rate while he is
allowed a full night's sleep for a number of con
secutive nights on a voyage which was a part of his
specified job description duties and for which he
was advised well in advance.
Accordingly, I would allow the section 28
application, set aside the decision of the Public
Service Staff Relations Board dated July 5, 1989,
and refer the matter back to the Board for recon
sideration on the basis that clause M-28.05 of the
Master Agreement is applicable in the circum
stances of this case.
MAHONEY J.A.: I agree.
MARCEAU J.A.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.