Date: 20040331
Docket: T-957-03
Citation: 2004 FC 503
Ottawa, Ontario, this 31st day of March, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
MARY CHADWICK
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mary Chadwick brings this application for judicial review in respect of a decision of an Adjudicator (the "adjudicator") of the Public Service Staff Relations Board (the "PSSRB"), dated May 9, 2003. In that decision, the PSSRB dismissed the applicant's grievance that she had been substantially performing the duties of a higher classification level from March 31, 1998 to July 30, 2001, on jurisdictional grounds. Ms. Chadwick seeks an order setting aside the PSSRB's decision and remitting the matter to a different PSSRB member for reconsideration.
BACKGROUND
[2] Dr. Mary Chadwick worked as a veterinarian with the Canadian Food Inspection Agency ("CFIA") at the St. Thomas, Ontario office until that office closed on September 30, 2001. She began working for CFIA's predecessor in 1986. She currently works for the CFIA at the London office.
[3] Up until March 31, 1998, there were four employees at the St. Thomas office. Dr. Ted Gough was the District Veterinarian for Elgin County, classified at the VM-02 level. The applicant's position is classified as a VM-01 level veterinarian and she reported to Dr. Gough as did a primary products inspector and a clerk.
[4] On March 31, 1998, Dr. Gough took early retirement. The CFIA chose not to replace him and transferred responsibility for Elgin County to another District Veterinarian, Dr. Bruce Green, who worked out of the London office. Dr. Green became the applicant's immediate supervisor. Dr. Chadwick testified that Dr. Green did not give her any real direction, but expected her to do what was required in order to keep the St. Thomas office running. The St. Thomas office was transformed into a satellite office of the London office, however, the level of service remained unchanged, as the applicant took on many, but not all, of the duties formerly performed by Dr. Gough.
[5] The duties of a VM-02 position involve greater managerial control over the delivery of the Animal Health Program. Dr. Chadwick believed that as a result of the greater responsibilities that she had assumed and performed after Dr. Gough's retirement, she should receive acting pay at the classification level of a VM-02 position, rather than a VM-01.
[6] The applicant therefore filed a grievance, dated August 20, 2001, claiming that she had been "substantially performing the duties of higher classification level, VM-02, from March 31, 1998 to July 30, 2001..." and pursuant to her collective agreement she should receive acting pay at the VM-02 level for that time period. She pursued this grievance up to the final level and then before the PSSRB. The PSSRB hearing took place on January 15, 2003.
The PSSRB's decision
[7] The adjudicator concluded that he did not have jurisdiction to decide the applicant's grievance as section 7 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ("PSSRA") prohibited him from making a decision that would effectively reclassify the applicant's position and result in the reorganization of the public service. The adjudicator concluded that the effect of granting the applicant's grievance would be to reverse management's decision to eliminate the VM-02 position at the St. Thomas office through reorganization, and was thereby beyond his subsection 92(1) jurisdiction.
[8] Section 7 of the PSSRA limits an adjudicator's authority, as set out in subsection 92(1) of the PSSRA, when hearing a grievance, so that issues of classification and the organization of the Public Service are not within an adjudicator's jurisdiction upon hearing a grievance pursuant to section 92(1). For the purposes of this judicial review, only subsection 92(1)(a) is relevant. Section 7 and subsection 92(1)(a) state as follows:
| 7. Nothing in this Act shall be construed to affect the right or authority of the employer to determine the organization of the Public Service and to assign duties to and classify positions therein.
92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award, ... and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.
[Emphasis added]
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7. La présente loi n'a pas pour effet de porter atteinte au droit ou à l'autorité de l'employeur quant à l'organisation de la fonction publique, à l'attribution des fonctions aux postes et à la classification de ces derniers. 92. (1) Après l'avoir porté jusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief portant sur :
a) l'interprétation ou l'application, à son endroit, d'une disposition d'une convention collective ou d'une décision arbitrale; ...
[Je souligne] |
ISSUES
[9] 1. What is the appropriate standard of review of the adjudicator's decision in this case?
2. Did the adjudicator err in determining that he did not have jurisdiction to grant the applicant's grievance?
ANALYSIS
Standard of Review
[10] The applicant submits that the appropriate standard of review in this case is correctness, as the issue is a question of jurisdiction, the decision at issue is not protected by a privative clause and the decision affects the rights of an individual employee rather being one involving a balancing of competing interests. The applicant relies on Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 and Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. The applicant says that the above factors outweigh the factor of the expertise of the adjudicator.
[11] The respondent submits that the appropriate standard should be reasonableness simpliciter. Referring to Dr. Q., supra, the respondent says that the Supreme Court of Canada has recognized that an administrative tribunal may be habitually called upon to make findings of fact and law in a distinctive legislative context, so that such tribunal can be regarded as having accumulated a good deal of institutional experience relative to the decision at issue.
[12] In my opinion, after applying the well established pragmatic and functional approach, the appropriate standard of review should be correctness. The nature of the problem at issue in this review is jurisdictional, and as held by the Supreme Court of Canada in Chieu, supra, at paragraph 24, "Administrative bodies generally must be correct in determining the scope of their delegated mandate, given that they are entirely creatures of statute."
[13] While an adjudicator of the PSSRB is viewed as having a great deal of expertise in determining grievances, relatively, the court has greater expertise in analysing questions of law, such as, in this case, whether an adjudicator has jurisdiction over a particular matter. The adjudicator's decision is not protected by a privative clause and one purpose of the PSSRA, and the purpose of section 92(1)(a) in particular, is to provide an effective system of redress for the grievances of federal public service employees, arising from the interpretation of their collective agreements. These other factors of the pragmatic and functional approach suggest less deference and in combination with the nature of the question being one of jurisdiction, involving a question of mixed fact and law, correctness is the standard of review that I will apply.
Error in interpreting jurisdiction
[14] The applicant submits that the adjudicator erred in concluding that he did not have jurisdiction to decide her grievance. Dr. Chadwick was not seeking a reclassification of her position or a reorganization of her employer, but instead retroactive remuneration pursuant to clause G1.08 of her collective agreement. Since she was seeking relief under the collective agreement, the adjudicator should have accepted jurisdiction over the matter.
[15] Clause G1.08 of the collective agreement between PIPSC and the CFIA states as follows:
G1.08 Acting Pay
When an employee is required by the Employer to substantially perform the duties of a higher level classification level on an acting basis for:
(a) ten (10) consecutive working days for levels VM-01 to VM-03;
they shall be paid acting pay calculated from the date on which they commenced to act as if they had been appointed to that higher classification level for the period in which they act.
[16] The applicant submits that this Court has held that where a grievor performs the duties of a higher classified position than that for which she is being paid, the grievor is entitled to acting pay for this work and such grievances are not precluded by section 7 of the PSSRA. The applicant refers to Blais v. Canada (Public Service Staff Relations Board) (May 14, 1986), A-846-85 (F.C.A.) (Unreported), Stagg v. Canada (Treasury Board), [1993] F.C.J. No. 1393 (T.D.)(QL) and the PSSRB decision of Shearer v. Canadian Food Inspection Agency, [2002] C.P.S.S.R.B. No. 65 (PSSRB) (QL).
[17] The applicant argues that these decisions support her position that an adjudicator has jurisdiction to decide a grievance were the requested relief is acting pay during a period when an employee was required to substantially perform the duties of a higher classified position and such request is properly viewed as dealing with acting pay for a specific period of time, rather than a request for reclassification or reorganization of the workplace.
[18] At the hearing, the counsel for the applicant presented a new argument that was not considered by the adjudicator or addressed in written submissions. The applicant contended that the legislative grant of authority to the President of the CFIA, pursuant to subsection 13(2) of the Canadian Food Inspection Agency Act, S.C., 1997, c. 6 ("CFIA Act"), to set the terms and conditions of employment for its employees, is different and less extensive than the powers granted to the Treasury Board found in section 7, and in particular subsection 7(1)(b), of the Financial Administration Act, R.S.C. 1985, c. F-11 ("FAA"). The CFIA is defined as a separate employer: see Schedule I, Part II of the PSSRA and section 12 of the CFIA Act
[19] The applicant submitted that the more general grant of power to the President of the CFIA, to set the terms and conditions of employment and assign duties to them, does not include the authority "to determine the organization of the Public Service", as such right is granted to the Treasury Board as employer, pursuant to subsection 7(1)(b) of the FAA, and therefore, the applicability of section 7 of the PSSRA in this case must be interpreted in light of this difference.
[20] In my opinion, while an interesting argument, this judicial review does not turn on this point, as I find that in the end, this difference does not render section 7 of the PSSRA any less applicable to employees of the CFIA who pursue grievances pursuant to the PSSRA. The term "employer" is defined in the PSSRA as to be either the Treasury Board or the separate employer so concerned. Similarly, the definition of "Public Service" in the PSSRA also applies to the CFIA, as it refers to the "several positions in or under any department or other portion of the public service of Canada specified in Schedule I." The CFIA is listed in Schedule I. The broad power granted to the CFIA pursuant to subsection 13(2) of the CFIA Act must be interpreted as allowing it to organize its workplace, and the fact that the word "organization" is not used is not fatal, as the CFIA is granted the power to set the terms and conditions of employment and determine their employees' assigned duties. The question that must be answered on this judicial review is whether the adjudicator incorrectly determined that section 7 applied to this particular grievance, ousting his jurisdiction under subsection 92(1)(a) of the PSSRA.
[21] The respondent contends, relying on the PSSRB decisions of Charpentier v. Treasury Board (Environment Canada) (1997), 31 PSSRB Decisions 15 (Digest) and Gvildys v. Treasury Board (Health Canada), [2002] C.P.S.S.R.B. No. 69 (PSSRB) (QL), that the adjudicator properly concluded that he did not have jurisdiction to hear the applicant's grievance. The fact that a grievance is worded as an "acting pay grievance" and presented as such is not determinative, and the effect of granting such a grievance must be evaluated. If granting the grievance results in the position being reclassified, or in a reorganization of the workplace, the adjudicator has no jurisdiction to decide the grievance.
[22] The respondent submits that the adjudicator correctly stated in his reasons that he had to carefully examine the facts and surrounding circumstances of Dr. Chadwick's grievance in order to determine if the essence of the dispute was about acting pay or instead, classification. The respondent then argues that the applicant did not carry out all of the management duties of the VM-02 position. If the adjudicator had found that she was entitled to acting pay, this would have effectively reclassified her position to that of a VM-02.
[23] In my opinion, the adjudicator was incorrect in interpreting the grievance as one that related to reclassification of the applicant's position or the organization of the public service. The applicant's grievance was based on her belief that clause G1.08 of her collective agreement entitled her to acting pay during the period that she was substantially performing the duties of a VM-02 position at the St. Thomas office. I agree with the applicant that the adjudicator erred in refusing to accept and exercise his jurisdiction of her grievance.
[24] Dr. Chadwick was grieving her claim that her employer failed to apply the collective agreement. Clause G1.08 of that agreement makes reference to the situation where an employee is required by the employer to substantially perform the duties of a higher classification level on an acting basis for at least ten, consecutive days. By necessity, a comparison of different classification levels would need to be undertaken in order to determine whether the grievor's work falls within Clause G1.08. This Clause also includes a temporal element, in that an employee seeking acting pay pursuant to it will only receive such pay for a specified time period during which time he or she substantially performed the duties of a higher classification level. Had she been seeking the higher pay indefinitely, I might have found otherwise. However, that is not the case before me. The applicant claims that she was required to substantially perform the duties of the VM-02 position from March 31, 1998 through to July 30, 2001 and should receive acting pay for that specified time period. This dispute concerns remuneration rather than classification.
[25] In Stagg, supra, Justice Muldoon held that an employee's grievance for acting pay based upon a clause in a collective agreement that was of similar wording to the one in the present case, was one dealing with remuneration and not classification. In regards to the argument that section 7 of the PSSRA prevented the adjudicator from assuming jurisdiction of the grievance, Justice Muldoon stated as follows at paragraph 20:
The adjudicator based his decision that he lacked jurisdiction to grant the applicant's grievance upon an erroneous finding of law and fact to the effect that a grant of retroactive remuneration for the period from January 1, 1989 to July 3, 1990 constituted a retroactive reclassification of the applicant's position. The relief sought by her grievance was, rather, within the contemplation of clause M-27 of the master agreement. The adjudicator also erred in law in finding that the grant of the relief sought in the applicant's grievance was contrary to section 7 of the Public Service Staff Relations Act. That provision, validly enacted according to its tenor and scope, was simply not engaged in these proceedings. The employer's posture herein leads only to the nefarious notion that after imposing more onerous duties upon employees and according the commensurate upgrade of classification of position - proper and exclusive employer's functions, the employer can then, by dragging its feet on remuneration, obtain the employees' extra services free for a time by just delaying the commensurate raise in remuneration. This is a notion philosophically akin to that of slavery or forced labour because it exploits employees' (increased) work without remuneration.
[26] As found by Justice Muldoon, section 7 of the PSSRA "simply is not engaged in these proceedings". Section 7 cannot be used to relieve employers of financial commitments that are entrenched in a collective agreement and voluntarily entered into through the collective bargaining process: Public Service Alliance of Canada v. Treasury Board (1987), 76 N.R. 229 (F.C.A.).
[27] The decisions of the PSSRB relied on by the respondent are distinguishable from the present situation. In Gvildys, supra, the employee sought acting pay at a classification level on a going forward basis from a particular point in time and the different classification levels at issue were the result of a unique factual situation involving changes to the organization of the workplace and changes to the collective agreement. Moreover, in Gvildys, supra, the classification of the grievors' positions had already been subject to a separate classification grievance that had been denied, prior to the launching of the acting pay grievances. The employees in Gvildys, supra, were not required or requested to take on new and expanded duties, as Dr. Chadwick claims she was in the present case, but rather performed the same duties they had always performed when a change to the workplace resulted in changes to classification levels. That situation is distinguished on this basis as well.
[28] Similarly in Charpentier, supra, the employee's grievance occurred after a failed classification grievance and the employee had long requested and sought a change in his position's classification level due to the employer's decision to modify his classification level and the employee's belief that similar positions in other provinces were classified at a different level. The employee also requested acting pay on an open-ended basis, that is at a higher classification level from a particular date forward. Such a situation was properly regarded as being outside the adjudicator's jurisdiction.
[29] In the present case, there is no evidence presented to this Court that the applicant had previously sought a re-classification of her position, either through informal inquiries or through a classification grievance. It does not appear, therefore, that her grievance for acting pay that was forwarded to the PSSRB pursuant to subsection 92(1)(a) was a backdoor attempt to achieve indirectly through adjudication that which could only be achieved through a different grievance procedure related to classification, pursuant to section 91 of the PSSRA. Furthermore, the applicant is not requesting acting pay up to the present time, but acting pay for a specific time period when she believes that she was required to substantially perform the duties of a VM-02 position for at least ten consecutive days. Such a request is clearly one for remuneration and grounded in Clause G1.08 of her collective agreement. This matter is correctly within the jurisdiction of an adjudicator of the PSSRB, and the adjudicator in this case erred in determining it not to be so.
ORDER
THIS COURT ORDERS that this application for judicial review is allowed with costs to the applicant. The decision of the adjudicator dated May 9, 2003 is set aside and a different adjudicator of the PSSRB shall reconsider the applicant's grievance in accordance with these reasons.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-957-03
STYLE OF CAUSE: MARY CHADWICK
AND
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 30, 2004
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: March 31, 2004
APPEARANCES:
Dougald Brown FOR THE APPLICANT
John Jaworski FOR THE RESPONDENT
SOLICITORS OF RECORD:
DOUGALD BROWN FOR THE APPLICANT
Nelligan O'Brien Payne LLP
Ottawa, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario