ROBERT ARSENAULT v. FEDERAL GOVERNMENT DOCKYARDS TRADES, 2016 FCA 179

Date: 20160614 Docket: A-436-15 Citation: 2016 FCA 179 CORAM: WEBB J.A. SCOTT J.A. DE MONTIGNY J.A. BETWEEN: ROBERT ARSENAULT and FEDERAL GOVERNMENT DOCKYARDS TRADES AND LABOUR COUNCIL (EAST) Applicants and ATTORNEY GENERAL OF CANADA and TREASURY BOARD OF CANADA SECRETARIAT (DEPARTMENT OF NATIONAL DEFENCE) Respondents Heard at Halifax, Nova Scotia, on April 25, 2016. Judgment delivered at Ottawa, Ontario, on June 14, 2016. REASONS FOR JUDGMENT BY: SCOTT J.A. CONCURRED IN BY: WEBB J.A. DE MONTIGNY J.A. Date: 20160614 Docket: A-436-15 Citation: 2016 FCA 179 CORAM: WEBB J.A. SCOTT J.A. DE MONTIGNY J.A.

BETWEEN: ROBERT ARSENAULT and FEDERAL GOVERNMENT DOCKYARDS TRADES AND LABOUR COUNCIL (EAST) Applicants and

ATTORNEY GENERAL OF CANADA and TREASURY BOARD OF CANADA SECRETARIAT (DEPARTMENT OF NATIONAL DEFENCE) Respondents REASONS FOR JUDGMENT SCOTT J.A. [ 1 ] This is an application for judicial review under

section 18.1 of the Federal Courts Act , R.S.C. 1985, c. F-7 (the Act) to set aside a decision rendered by an adjudicator (the Adjudicator) of the Public Service Labour Relations Board (PSLRB) dated June 22, 2015. The Adjudicator dismissed Mr. Robert Arsenault’s (the grievor) grievance on the ground that he was entitled to compensation solely under clause 17.03(

d) of the collective agreement dated June 16, 2008 between the Treasury Board and the Federal Government Dockyard Trades and Labour Council (East) for the Ship Repair Group (the collective agreement). I. The facts [ 2 ] The facts were not disputed. The grievor was required by his employer to travel from Halifax to Stockholm, Sweden, in order to carry out systems repairs on a ship. He therefore left Halifax and took an overnight flight on Saturday, June 5, 2010 at 23:35 local time and arrived in London on Sunday, June 6, 2010 at 9:35 local time.

He spent the day in London at a hotel and left for Stockholm the following morning. The issue before the Adjudicator was the grievor’s total pay entitlement for the portion of the trip from Halifax to London as June 5 and 6 were days of rest. [ 3 ] For that portion of the trip, including the flight and the transportation to and from each airport, the grievor spent a total of 11 hours apportioned as follows: 3.5 hours on Saturday and 7.5 hours on Sunday. [ 4 ] The Employer paid the grievor, under clause 17.03(

a) of the collective agreement, for the hours travelled on June 5 and 6 at the double time rate as both days were days of rest for the employee. The total amount of pay was the equivalent of 7 hours straight time on the first day and 15 hours straight time on the second day for a total of 22 hours. [ 5 ] Clause 17.03 governs travel pay under the collective agreement.

It provides as follows: Ship Repair - East (SRE) Réparation des navires - Est (SRE) 17.03 Where an employee is required by the Employer to travel to a point away from the employee's normal place of work, the employee shall be compensated as follows: 17.03 Lorsqu'un employé est tenu par l'Employeur de se rendre à un endroit qui est éloigné de son lieu de travail normal, il est rémunéré dans les conditions suivantes : a. on any day on which the employee travels but does not work, at the applicable straight-time or overtime rate for the hours travelled, but the total amount shall not exceed fifteen (15) hours' straight time; a.

Durant n'importe quel jour pendant lequel il voyage mais ne travaille pas, il est rémunéré au taux des heures normales ou au taux des heures supplémentaires applicables durant ses heures de trajet mais le montant total ne doit pas dépasser quinze (15) heures normales. b. on a normal workday in which the employee travels and works: b.

Durant une journée de travail normale où il voyage et travaille : i. during the employee's regular scheduled hours of work at the straight-time rate not exceeding eight (8) hours' pay, i. pour les heures de travail normales prévues à son horaire, il est rémunéré au taux normal et ne touche pas plus de huit (8) heures de rémunération; ii. at the applicable overtime rate for all time worked outside the employee's regular scheduled hours of work, ii. au taux des heures supplémentaires pour toute heure effectuée en dehors des heures de travail normales prévues à son horaire; iii. at the applicable overtime rate for all travel outside the employee’s regular scheduled hours of work to a maximum of fifteen (15) hours’ pay at straight time in any twenty-four (24) hour period; iii. au taux des heures supplémentaires applicable pour tout trajet effectué en dehors des heures de travail normales prévues à son horaire jusqu'à un maximum de quinze (15) heures de rémunération calculées au taux normal dans toute période de vingt-quatre (24) heures. c. on a rest day on which the employee travels and works, at the applicable overtime rate: c.

Durant un jour de repos où il voyage et travaille, au taux des heures supplémentaires : i. for travel time, in an amount not exceeding fifteen (15) hours' straight-time pay, and i. pour tout temps de trajet et pour un montant ne devant pas excéder quinze (15) heures de rémunération au taux normal, et ii. for all time worked; ii. pour toute heure travaillée. d. notwithstanding the limitations stated in paragraphs 17.03(a), (

b) and (c), where an employee travels on duty, but does not work, for more than four (4) hours between 2200 hours and 0600 hours, and no sleeping accommodation is provided, the employee shall be compensated at the applicable overtime rate for a maximum of fifteen (15) hours' straight-time pay. d. Nonobstant les restrictions énoncées aux alinéas a),

b) et

c) du paragraphe 17.03, l'employé qui voyage en service commandé, mais ne travaille pas, durant plus de quatre (4) heures au cours de la période allant de 22 heures à 6 heures, sans que le coucher lui soit fourni, est rémunéré au taux des heures supplémentaires applicable, jusqu'à concurrence de quinze (15) heures de rémunération au taux normal.

II. The Adjudicator’s decision [6] The Adjudicator dismissed the grievance on the ground that the grievor was entitled to compensation solely under clause17.03(

d) of the collective agreement. Clause 17.03(

d) provides for travel pay when an employee travels overnight for at least four hoursbetween 10 pm and 6 am and no sleeping accommodation is provided. The Adjudicator determined that no other compensation was dueunder the other paragraphs of clause 17.03, notwithstanding the submissions of the parties. [7] In dismissing the grievance, the Adjudicator ignored the common

interpretation of clause 17.03(

a) of the collectiveagreement accepted by all parties according to which the grievor was entitled to compensation under clause 17.03(

a) and that the issue tobe determined was whether he could receive additional compensation pursuant to clause 17.03(d). The applicants had argued that thegrievor was entitled to an additional 15 hours of pay, whereas the respondents had taken the position that he was entitled to an additional7 hours of pay under clause 17.03(d). [8] The Adjudicator framed the issue as a disagreement by the parties on the meaning of clause 17.03(

d) of the collectiveagreement (reasons at paragraph 54). He then rejected the

interpretation of clause 17.03(

d) agreed upon by both parties and went on toconclude that clause 17.03 sets out four distinct options to compensate an employee for travel (reasons at paragraphs 69-70). In this case,he concluded that clause 17.03(

d) was meant to cover exactly the situation that the grievor was in: that is an overnight trip overlappingon two days with no sleeping accommodation being provided (reasons at paragraph 75). Consequently, he determined that the grievorshould be compensated only under clause 17.03(

d) and not under a combination of clause 17.03(

a) and 17.03(d) (reasons at paragraph81). III. The issues [9] The first issue in this application are whether the Adjudicator committed a breach of procedural fairness and violated thegrievor’s legitimate expectations by failing to provide notice that he was considering an

interpretation of the collective agreement thatwas not raised at the hearing and not contemplated by either party. In other words, did the Adjudicator thereby prevent the applicantsfrom making submissions and adducing evidence to challenge that

interpretation of clause 17.03? [10] The second issue is whether the adjudicator’s decision is reasonable. IV. The standard of review [11] The law is well settled: an issue raising a breach of procedural fairness should be reviewed on a standard of correctness(Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at paragraph 79; Henri v. Canada (Attorney General), 2016 FCA 38,[2016] F.C.J. No. 129 at paragraph 16; Abi-Mansour v. Canada (Foreign Affairs and International Trade Canada), 2015 FCA 135,[2015] F.C.J. No. 682 at paragraph 6).

In addition, an issue raising the reasonableness of an adjudicator’s decision is reviewable on astandard of reasonableness which commands much deference in view of an adjudicator’s specialized expertise in the

interpretation ofcollective agreements (Delios c. Canada (Attorney general), 2015 FCA 117, 472 N.R. 171 at paragraphs 18-21). V. The submissions [12] I will now turn to the first issue. Was there a breach of procedural fairness? [13] This case raises a novel issue: whether the Adjudicator had, in the circumstances of this case, a duty to apprise the parties thathe was considering an

interpretation of clause 17.03 of the collective agreement that neither party had contemplated? Was there a duty toafford the applicants an opportunity to make submissions and adduce evidence to challenge his

interpretation of the collective agreementin view of the fact that it was not raised at the hearing and ran counter to the parties’ mutual understanding that the grievor was entitledto 22 hours of compensation under clause 17.03(a)? [14] The applicants refer to the factors outlined in Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, 243 N.R. 22 in order to determine the extent of procedural fairness that the grievor should be afforded. ThisCourt must consider: (

i) the nature of the decision and the process followed; (ii) the nature of the statutory scheme under which thedecision-maker operates; (iii) the importance of the decision for the grievor; (iv) his legitimate expectations, and; (

v) the choices ofprocedure (Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504) at paragraph 42. [15] First, the applicants submit that the adjudication process is, in substance, judicial, since the Adjudicator has the power tosummon witnesses, order the production of documents and compel parties to produce oral or written evidence. In addition, an applicantmay be represented by counsel. Thus, they claim that a broad duty of procedural fairness applied. The applicants refer to paragraph 75 ofthe decision of the Supreme Court in Moreau-Bérubé v.

New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249 [Moreau-Bérubé]: [75] The duty to comply with the rules of natural justice and to follow rules of procedural fairness extends to all administrative bodiesacting under statutory authority (see Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, (SCC), [1979] 1 S.C.R. 311; Cardinal v. Director of Kent Institution, (SCC), [1985] 2 S.C.R. 643, at p. 653; Baker,supra, at para. 20; Therrien, supra, at para. 81).

Within those rules exists the duty to act fairly, which includes affording to the parties theright to be heard, or the audi alteram partem rule. The nature and extent of this duty, in turn, “is eminently variable and its content is tobe decided in the specific context of each case” (as per L’Heureux-Dubé J. in Baker, supra, at para. 21). Here, the scope of the right to beheard should be generously construed since the Judicial Council proceedings are similar to a regular judicial process (see Knight, supra,

at p. 683); there is no appeal from the Council’s decision (see D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Actionin Canada (loose-leaf), vol. 1, at pp. 7-66 to 7-67); and the implications of the hearing for the respondent are very serious (see Kane v.Board of Governors of the University of British Columbia, (SCC), [1980] 1 S.C.R. 1105, at p. 1113). [16] Second, the applicants point to subsection 228(1) of the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (PSLRA)which provided that the parties must be given an opportunity to be heard.

That provision was drafted in mandatory terms as it uses theword “must”. [17] The applicants also refer again to Moreau-Bérubé, a case which stands for the proposition that the absence of a right to appealcalls for more generous procedural protections. [18] Third, the applicants stress that the result of the proceeding is important not only for the grievor, but more generally for hisbargaining unit as it affects the earnings of all the members of the unit who are called to provide ship repair services outside of Halifax.Indeed, subsections 208(4) and 209(2) of the PSLRA contemplate the impact of a grievance that raises the

interpretation of a clause ofthe collective agreement: an individual member is prohibited from filing such a grievance without the approval of, and representation by,the bargaining agent to which the collective agreement or arbitral award applies. [19] Fourth, the applicants submit that they had a legitimate expectation that they would be allowed to make submissions on theissues on which the Adjudicator would rule, as provided for by subsection 228(1) of the PSLRA.

The applicants argue that a full hearingwith written evidence and legal submissions constituted an implicit recognition of the importance of the matter; hence, broad proceduralprotections were required. [20] The applicants then turned to the case law which, in their view, has consistently recognized and sanctioned the principle that aparty has the right to know the case to be met and respond to the central issues raised. [21] The applicants cited first Bulat v. Canada (Treasury Board), [2000] F.C.J.

No. 148, 252 N.R. 182 where this Court decidedthat an individual adversely affected by a decision should be given an adequate opportunity to address issues that he could not havereasonably expected to be central to his or her case. In that particular case, the grievor had grieved the classification of his job because hehad been assigned a low numerical rating.

In the absence of the grievor and his representative, management’s representative made somerepresentations to the Classification Grievance Committee to indicate that the grievor had performed a number of duties involvingoutside contacts on a voluntary or developmental basis that should not be considered in the evaluation, thereby justifying a lowerclassification. Those representations were never disclosed to the grievor. This Court determined that the failure to inform the grievor ofthese representations constituted a breach of procedural fairness. [22] In Canada (Attorney General) v.

Garg, 2004 FCA 410, 329 N.R. 188 [Garg], there was no dispute between the parties thatthe respondent was involved in farming. However, the Umpire concluded that the respondent's activities did not constitute farming,without having given the parties an opportunity to address the issue. This Court ruled that that conduct also breached procedural fairness. [23] Prior to Garg, in Dankas v. Canada (War Veterans Allowance Board), [1985] F.C.J.

No. 32, 59 N.R. 309, this Court haddetermined that it was unfair for the War Veterans Allowance Board to dismiss an application for war veterans allowance since thedecision turned on a point that was never argued at the hearing. [24] Finally, the applicants also cited Fischer v. Canada (Attorney General), 2012 FC 720, 413 F.T.R. 64. In that case, the issue ofprocedural fairness related to whether or not a classification grievance committee had to disclose a potential downgrade where the grievorcould not reasonably anticipate it, even though it had disclosed all the evidence necessary to make such a determination.

Gleason J., asshe then was, concluded that the committee had breached its duty of procedural fairness by omitting to do so: [25] In my view, in the circumstances of this case, the requirements of procedural fairness did require that the Committee disclose thatit was considering downgrading the Professional Responsibility factor and did require that it afford the parties the opportunity to makesubmissions on the potential downgrade prior to rendering its decision.

While it is certainly true that the content of the duty of fairness, inthe context of classification grievances in the federal public service, falls "somewhere in the lower zone of the spectrum" (Chong II atpara 12), in my view, even the minimal requirements of procedural fairness were not respected here. Mr.

Fischer is not seeking the rightto call viva voce evidence, cross-examine witnesses or other trappings of a full-blown adversarial hearing; rather, he is seeking theminimal right to be aware of and be afforded an opportunity to make arguments regarding the determinative issue in his grievance… [25] The respondent took the position before us that the onus of proof rested with the grievor and that it was incumbent on theapplicants to advance all the arguments and present evidence to ensure that their

interpretation of clause 17.03(

d) would prevail. [26] The respondents did acknowledge that the parties were not afforded prior notice of the

interpretation adopted by theAdjudicator and that it had never been discussed at the hearing, but argued nonetheless that, in light of the Adjudicator’s expertise, hecould not look at clause 17.03(

d) in isolation. Therefore, the Adjudicator could legitimately conclude that clause 17.03(

a) did not apply,even though both parties had agreed that it did. [27] In the respondents’ view, the Adjudicator’s

interpretation was open to him and it is a reasonable and acceptable outcome inview of the fact that the Adjudicator’s decision is to be reviewed on a standard of reasonableness. VI. Analysis [28] I disagree with the respondents for the following reasons. [29] In the present case, both parties were in agreement that clause 17.03(

a) was applicable. The applicants and the respondentshad no indication whatsoever that their common and accepted

interpretation could be questioned. I am of the view that, on the facts of

this case, procedural fairness dictates that they should, at the very least, have been put on notice and afforded an opportunity to address the issue and adduce evidence to counter the Adjudicator’s

interpretation of clause 17.03(

d) collective agreement. [ 30 ] The factual matrix before us is somewhat similar to Garg . In that case, this Court determined at paragraphs 7 and 8 that where an Umpire raises sua ponte an issue that had not been raised by any of the parties in the proceedings, and does so without giving the applicant an opportunity to be heard on the matter and to make representations, it is objectionable because it amounts to a breach of procedural fairness within the meaning of subparagraph 18.1(4) (

b) of the Act . [ 31 ] Since the collective agreement is the contract that governs the relationships between the parties, it is critical, in my view, that the parties be afforded an opportunity to be heard since they must live by the terms of their contract. Both parties had a vital interest in the Adjudicator’s

interpretation of their collective agreement. In this case, the Adjudicator came to a different

interpretation of clause 17.03(

d) without any input from the parties on how that

interpretation could possibly impact on the application of clause 17.03 generally. [ 32 ] In the particular circumstances of this case, it is my opinion that the Adjudicator’s failure to give notice to the parties that he was contemplating an

interpretation of clause 17.03(

d) that negated their joint understanding of clause 17.03(

a) constituted a breach of procedural fairness. Both agreed that the grievor was entitled to the payment of 22 hours for his travel between Halifax and London. In fact, the employer had already paid the grievor for the 22 hours. The dispute was clearly restricted to the

interpretation of clause 17.03(

d) of the collective agreement and it was well delineated. What amount of additional payment was the grievor entitled to receive under clause 17.03(d)? The applicants argued that 15 additional hours were payable under clause 17.03(

d) whereas the respondents took the position that only 7 additional hours were payable. Before propounding his

interpretation, the Adjudicator should have placed the parties on notice because his failure to alert the parties deprived them of an opportunity to make representations and adduce evidence to support their common understanding that payments under clause 17.03(

d) were additional to those under clause 17.03(a). [ 33 ] The standard of review for issues of procedural fairness is correctness. In this case, the Adjudicator decided to reject the accepted

interpretation of a clause of a collective agreement and found that, notwithstanding the

interpretation as agreed upon by the parties, the grievor was not entitled to any compensation under clause 17.03(

a) of the collective agreement. The parties to that agreement should, in my view, have been given an opportunity to present arguments and to adduce evidence regarding such a determinative issue. In circumstances such as these, this Court must intervene to enforce procedural fairness. [ 34 ] For these reasons, I propose that this application for judicial review be allowed, the decision of the Adjudicator be quashed, and the matter referred back for redetermination before a different adjudicator, with costs. "A.F. Scott" J.A. “I agree. Wyman W. Webb J.A.” “I agree.

Yves de Montigny J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-436-15 APPLICATION FOR A JUDICIAL REVIEW FROM THE DECISION DATED JUNE 22, 2015 OF AN ADJUDICATOR APPOINTED UNDER THE PUBLIC SERVICE LABOUR RELATIONS ACT STYLE OF CAUSE: ROBERT ARSENAULT AND FEDERAL GOVERNMENT DOCKYARDS TRADES AND LABOUR COUNCIL (EAST) v. ATTORNEY GENERAL OF CANADA AND TRESURY BOARD OF CANADA SECRETARIAT (DEPARTMENT OF NATIONAL DEFENCE) PLACE OF HEARING: Halifax, Nova Scotia DATE OF HEARING: April 25, 2016 REASONS FOR JUDGMENT BY: SCOTT J.A.

CONCURRED IN BY: WEBB J.A. DE MONTIGNY J.A. DATED: JUNE 14, 2016 APPEARANCES : Ronald A. Pink For The Applicants Martin Desmeules For The Respondents SOLICITORS OF RECORD : Pink Larkin Halifax, Nova Scotia For The Applicants William F. Pentney Deputy Attorney General of Canada Ottawa, Ontario For The Respondents