Date: 19980617
Docket: T-2165-97
OTTAWA, ONTARIO, THE 17th DAY OF JUNE 1998
Present: THE HONOURABLE MR. JUSTICE J.E. DUBÉ
Between:
ATTORNEY GENERAL OF CANADA
Applicant
- and -
MAURICE ST-LAURENT
Respondent
- and -
MURIEL KORNGOLD-WEXLER in her capacity
as an adjudicator appointed pursuant to paragraph 95(2)(c) of
the Public Service Staff Relations Act,
R.S.C., 1985, c. P-35
Third Party
ORDER
The application for judicial review is dismissed.
Judge
Certified true translation
Peter Douglas
Date: 19980617
Docket: T-2165-97
Between:
ATTORNEY GENERAL OF CANADA
Applicant
- and -
MAURICE ST-LAURENT
Respondent
- and -
MURIEL KORNGOLD-WEXLER in her capacity
as an adjudicator appointed pursuant to paragraph 95(2)(c) of
the Public Service Staff Relations Act,
R.S.C., 1985, c. P-35
Third Party
REASONS FOR ORDER
DUBÉ J.:
[1] This is an application filed by the Attorney General of Canada under sections 18 and 18.1 of the Federal Court Act to review and set aside an adjudicator"s interlocutory decision, dated September 5, 1997, on a grievance referred to adjudication pursuant to section 92 of the Public Service Staff Relations Act1 (the Act).
1. Facts and Decision of Adjudicator
[2] The respondent was employed by Correctional Service Canada (the Service) from 1965 until November 1995. On June 15, 1994, he reached an agreement with his employer according to which he would leave the Service on November 4, 1995, and, for his last year, be assigned to a less demanding position than his substantive position without any change in salary or terms and conditions of employment.
[3] Subsequently, on October 20, 1995 (due to a work-related accident on March 10, 1995), the respondent sent a letter to Lise Bouthillier, Warden of Cowansville Institution, informing her that his departure date, which was to be November 4, 1995, was being postponed. The Warden replied that [TRANSLATION] "we will no longer be able to guarantee your continued assignment to a driver-stock handler position". On December 5, 1995, she informed him that [TRANSLATION] "we cannot now agree to postpone the date of your retirement to some date other than November 4".
[4] The respondent consequently wrote to the Deputy Commissioner of the Service on December 11, 1995, who replied that his retirement date would remain unchanged. Lastly, on January 17, 1996, the respondent wrote to the Commissioner of the Service, who reconfirmed that the retirement date would remain the same. That is when the respondent referred his grievance to adjudication.
[5] At the outset, the Adjudicator had to settle two preliminary questions: whether the respondent had in fact presented a grievance within the meaning of the Act, and secondly, whether the grievance had been presented within the prescribed time limit. The Adjudicator replied to both questions in the affirmative.
[6] At the hearing before the Adjudicator, counsel for the respondent argued that her client had presented his grievance either in his letter of October 20, 1995, to the Warden, or in his letter of January 17, 1996, to the Commissioner. However, the Adjudicator held that the second letter"the letter of December 11, 1995, to the Deputy Commissioner"constituted the grievance in the case at bar, and that consequently the grievance had been presented within the time limit provided for by subsection 71(3) of the P.S.S.R.B. Regulations and Rules of Procedure, 19932 (the Regulations), that is, "within 25 working days of the refusal dated December 5, 1995".
2. Letter of December 11, 1995
| [7] The letter in question, which, according to the Adjudicator, constitutes a grievance dated December 11, 1995, is addressed to Jean-Claude Perron, Deputy Commissioner of the Service, and reads as follows:[TRANSLATION] The purpose of this letter is to request your assistance in resolving a difficult situation in which I find myself. Here are the facts which explain what is happening. |
| I have been on leave for a work-related injury since July 29, 1995 (see accident file at the regional office). Under an agreement with Jean-Paul Lupien, I was supposed to retire on November 4, 1995, which I would have done if the circumstances had not been as they are, that is, if I had not been injured on the job. I have done everything that was asked of me, including meeting with the necessary physicians, and I am doing everything the specialists recommend. |
| I met with Gilles Lacasse, AWPS, who is my immediate superior. I also wrote (copy attached) to Lise Bouthillier to request that my retirement be delayed until the matter of this accident has been definitively settled. Based on Ms. Bouthillier"s reply, I realize that, after thirty years of loyal service, my request for a short postponement of my retirement has been refused. I did not think it was too much to ask. I am seeking your assistance in resolving this matter as quickly as possible. I am prepared to meet with you if you think it would be useful. Thank you in advance for your help. |
| Sincerely, |
| Maurice St-Laurent |
| 55 Bourgeois, Granby, Quebec J2G 8G8 |
| Tel.: (514) 378-3063 |
| c.c.: Lise Bouthillier, Cowansville Institution |
| Mr. Vignis, Director, Human Resources |
3. Validity of Grievance
| [8] The applicant submits that there are certain technical requirements for presenting a grievance in accordance with the grievance process. Subsection 70(1) of the above-mentioned Regulations reads as follows:70. (1) An employer shall prepare a grievance form that sets out the following information to be given by an aggrieved employee: |
| (a) the name and address of the aggrieved employee and any additional information, other than the employee's Social Insurance Number, necessary to identify the aggrieved employee; |
| (b) a concise statement of the nature of each act or omission complained of, including a reference to the provision of a statute or of a regulation, by-law, direction or other instrument made or issued by the employer and dealing with the terms and conditions of employment, or to the provision of a collective agreement or arbitral award alleged to have been violated or misinterpreted, that will identify the nature of the alleged violation or misinterpretation; |
| (c) the date on which each act or omission or other matter giving rise to the grievance occurred; and |
(d) the corrective action requested by the aggrieved employee.
[9] However, even though the letter in question is not drafted in technical terms, it does give the respondent"s name and address and any additional information necessary to identify him. It also states the nature of the problem and the agreement on which the corrective action requested is based.
| [10] Furthermore, an adjudicator is not strictly bound by the provision in question since subsection 71(5) of the Regulations relaxes this requirement of the Act: |
(5) A grievance of an employee is not invalid by reason only that it is not presented in the form approved by the Board under section 70.
| [11] This provision thus indicates the importance which must be attached to the content of a grievance, not just to its form. The general principle of liberal interpretation with respect to grievances is found in the following excerpts from Collective Agreement Arbitration in Canada3:5.92 The cases have not been totally consistent in this area. Some have indicated leniency in allowing deviation; others have demanded strict compliance with the provisions in a collective agreement. A list of the problems which have arisen and how arbitrators have approached them is helpful. |
| ... |
| (ii) Failure to Use a Standardized Form |
5.94 At least one case required strict compliance with any collective agreement provision which stipulates that all grievances are to be submitted on standardized forms4. Where there has been substantial compliance with the agreement and the objection is merely technical, the objection can be overruled. Thus an objection to the form upon which the grievance is submitted has frequently been dealt with in this manner5. Individual grievances can also be filed together on one form6.
| [12] The case at bar concerns only an interlocutory decision of the Adjudicator, a 36-page document which clearly shows that she is perfectly aware of the situation, made no error as to the nature of the grievance and noted that the respondent had not bypassed the people responsible for dealing with the dispute in question. In fact, the respondent went to the three appropriate levels, that is, the Warden, the Deputy Commissioner of the Service and the Commissioner himself. The Adjudicator concluded her decision with the following two paragraphs: For these reasons, the letter of December 11, 1995 is a grievance. Mr. St-Laurent claims that he was dismissed and he presented a grievance objecting to that "dismissal". The parties agreed that I should first decide the two preliminary questions: (1) Did Mr. St-Laurent present a grievance within the meaning of the PSSRA and (2) if so, was the grievance presented within the prescribed time limit? I conclude that the reply to both questions is in the affirmative. |
| In light of my affirmative decision on these two preliminary questions at issue, it is now necessary to decide whether this grievance can be adjudicated under section 92 of the PSSRA. The parties chose not to deal with this important issue at the hearing held on June 25 and 26, 1997. For that reason, this case is to be rescheduled for hearing. The parties will be duly informed of the date of the continuation of this case. |
[13] The issue is thus whether the Adjudicator must continue with the adjudication of the grievance or whether there was no grievance before her, as argued by the applicant.
[14] According to the applicant, if there is no grievance, the Adjudicator has no jurisdiction over the dispute between the parties. No grievance shall be referred to adjudication and no adjudicator shall hear or render a decision on a grievance until all procedures up to and including the final level in the grievance process have been complied with. The purpose of the technical requirements of the grievance process and reference to adjudication is to ensure an exhaustive debate on the dispute between the parties. The effect of bypassing this process is to bypass the people responsible for dealing with the dispute in question. Even though the respondent is not part of a bargaining unit, he could have asked for help and been represented by whichever employee organization he preferred when his grievance was presented or referred to adjudication.
[15] In my view, the respondent should not be deprived of his right to present a grievance for purely technical reasons. The respondent exhausted his remedies at the three appropriate levels and presented the substance of his grievance to the Adjudicator within the time limit. It is quite evident, on the face of her interlocutory decision, that the Adjudicator was perfectly aware of the situation. The respondent is thus entitled to have his grievance adjudicated. If the Adjudicator"s decision on the merits of the grievance is unreasonable, the applicant will then be free to file an application for judicial review.
[16] This application for judicial review accordingly cannot be allowed.
OTTAWA, Ontario
June 17, 1998
Judge
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-2165-97
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
v.
MAURICE ST-LAURENT ET AL.
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 2, 1998
REASONS FOR JUDGMENT BY THE HONOURABLE MR. JUSTICE DUBÉ DATED JUNE 17, 1998
APPEARANCES:
MICHEL LEFRANÇOIS FOR THE APPLICANT
JOCELYN GRENON FOR THE RESPONDENT
SOLICITORS OF RECORD:
ATTORNEY GENERAL OF CANADA FOR THE APPLICANT
OTTAWA, ONTARIO
JOCELYN GRENON FOR THE RESPONDENT
COWANSVILLE, QUEBEC
__________________1 R.S. 1985, c. P-35.
2 71. (3) An employee shall present a grievance no later than on the twenty-fifth day after the day on which the employee first had knowledge of any act, omission or other matter giving rise to the grievance or the employee was notified of the act, omission or other matter, whichever is the earlier.
3 Palmer and Palmer, 3rd ed., Toronto: Butterworths, 1991.
4 See Monarch Knitting, 12 L.A.C. 129 (Cross, 1961). Compare, however, the reasoning in Daal Specialties, 18 L.A.C. 141 (Weatherill, 1967) and Stelco, 4 L.A.C. (2d) 68 (Weatherill, 1973).
5 See, e.g., Central Hospital, 10 L.A.C. (2d) 412 (Weatherill, 1975).
6 Douglas Aircraft, 5 L.A.C. (2d) 171 (Gorsky, 1974).