Nova Scotia Government Employees Union v. Nova Scotia (Human Resources)

Nova Scotia Government Employees Union v. Nova Scotia (Human Resources) Court Court of Appeal Date 1996-09-25 Citation 1996 NSCA 171 Docket CA 125695 Judge/Registrar/Adjudicator Roscoe, Elizabeth A. (Honourable Justice) (CA); Bateman, Nancy J. (Honourable Justice) (CA); Jones, Malachi C. (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 125695 NOVA SCOTIA COURT OF APPEAL Cite as: Nova Scotia Government Employees Union v. Nova Scotia (Human Resources), 1996 NSCA 171 Roscoe, Jones and Bateman, JJ.A. BETWEEN: ) ) THE NOVA SCOTIA GOVERNMENT ) Raymond F. Larkin, Q.C. EMPLOYEES UNION ) for the Appellant ) Appellant ) ) - and - ) ) HER MAJESTY THE QUEEN IN THE ) R. Ferguson Ford RIGHT OF THE PROVINCE OF NOVA ) for the Respondents SCOTIA as represented by THE ) DEPARTMENT OF HUMAN RESOURCES ) ) Respondents ) ) ) ) ) Appeal Heard: ) September 16, 1996 ) ) ) Judgment Delivered: ) September 25, 1996 THE COURT: The appeal is dismissed with costs in the amount of $1,000.00 as per reasons for judgment of Roscoe, J.A.; Jones and Bateman, JJ.A., concurring. ROSCOE, J.A.: This is an appeal from a decision of Goodfellow, J., in Chambers, [reported at 148 N.S.R. (2d) 368] dismissing an application for an order to quash the decision of Bruce Archibald, an adjudicator appointed pursuant to the Civil Service Collective Bargaining Act, R.S.N.S. 1989, c.71. Adjudicator Archibald denied the grievance of Christine Roberts, a member of the appellant union. He decided that she was not entitled to be credited with the accrual of vacation leave while she was off work on “injury on duty” leave over several extended periods of time from 1987 to 1992. The adjudicator was presented with an agreed statement of facts which set out the relevant times and dates of the grievor’s work history and her various absences due to illness, injury and disability. In addition, he heard the evidence of the Director of Payroll Services for the Department of Finance who explained the benefits paid and the tax treatment of those benefits while an employee is on injury on duty leave. In arriving at his decision the adjudicator interpreted several relevant provisions of the Collective Agreement and concluded: Despite the persuasive efforts of counsel for the Union, I am of the view that the Grievance must be denied. The Employer's position, in my opinion is essentially correct. I think it clear that Article 39 of the Collective Agreement establishing the system of "injury on duty leave with pay" does not fall within the concept of "salary" used in Article 1.02 for the purpose of calculating service related benefits. Moreover, the express working of the scheme of this Collective Agreement takes it outside the ambit of arbitral jurisprudence dealing with situations where vacation entitlements accrue during workers' compensation absences, and puts it squarely within that line of cases which assert a "presumption" against the "pyramiding of benefits". Here the agreement establishes service related benefits in relation to a minimum monthly period of "active service" as defined in Article 1.02. Surely, receiving full "salary equivalent" while at home on I.O.D. leave pay does not constitute "active service" for the Employee which should give rise to earned benefits. Contrary to the argument from counsel for the Union, I believe this outcome to be entirely consistent with the approach taken by Adjudicator Outhouse in the Jeffries case between the same parties dealing with some of the same articles of the Collective Agreement. In dismissing the application for certiorari the Chambers judge held that the adjudicator did not amend the Collective Agreement by his interpretation of it. He determined that: In my view, the adjudicator looked to the purpose of the legislation and collective agreement and concluded that the scheme for annual vacation leave with pay was based on "months of service" which he concluded had an active or presence component. In other words that an employee has to attend and earn such a benefit, and the formula set out the benefit based upon months of service. The fact the requirement of service has a prerequisite a specific minimum time where salary must be earned does not alter the obvious intent of the parties and legislation that vacation is an earned concept based upon attendance and service. The requirement or prerequisite of a specific entitlement to salary for a period of time is a requirement but does not define "months of service". Months of service is properly defined by a determination of the intent and purpose of the parties. I find, first of all, the use by the adjudicator of the descriptive term "active service" in his decision is merely a description of the component that he concludes is necessary in 17.01 for "months of service" and therefore he did not in fact, as advanced by the Union, alter or amend the collective bargaining agreement. He did not, therefore, make any jurisdictional determination. In any event the interpretive approach and conclusion arrived at by the adjudicator clearly fits within the intent and purpose of the parties, and the result proposed by the Union would lead to the inequitable result that an employee who worked for the required period of time would receive her/his income benefits and vacation totalling X, and an employee on injury‑on‑duty leave would receive her/his income and benefits for the full year plus an additional measure of remuneration for vacation leave. The adjudicator determined quite correctly that with respect to entitlement to vacation, the collective agreement reflected and embraced the "use it or lose it" principle and the grievor did not comply with article 17.05 (a). The appellant raises the following issues before this Court: 1. Did the learned Trial Judge err in law by applying the wrong standard of review to the decision of Adjudicator Archibald? 2. Did the learned Trial Judge err in law by exceeding the jurisdiction of a court on judicial review and deciding matters that had not been dealt with by Adjudicator Archibald? 3. Did the learned Trial Judge err in law when he failed to find Adjudicator Archibald had exceeded his jurisdiction by effectively amending the Collective Agreement? Standard of Review The appellant argues that the trial judge used too low a standard in reviewing the decision of the adjudicator. The appellant submits that the trial judge used a standard of correctness, one similar to ordinary appellate review. Both the appellant and the respondent agree that the proper standard to be used in this situation is that of patent unreasonableness based on the decisions of this Court in N.S.G.E.U. v. Civil Service Commission (N.S.) et al. (1992), 117 N.S.R. (2d) 91 and Civil Service Commission (N.S.) v. N.S.G.E.U. (1993), N.S.R. (2d) 217. In his analysis of this issue, the trial judge quoted extensively from C.B.C. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157 and Maritime Telegraph & Telephone Co. v. Atlantic Communications and Technical Workers’ Union (1994), 136 N.S.R. (2d) (C.A.) 364, cases in which the standard of patently unreasonable is endorsed. Then he concluded by saying: . . . I have not found it necessary to attempt to articulate a specific level of deference to be shown to an adjudicator appointed under the Civil Service Act other than the minimal deference accorded to a determination by a trial judge when the matter goes to appeal. While I share the concern of the appellant that the trial judge may have used a standard other than that of patent unreasonableness, if he did, it would have been to the appellant’s advantage. The standard that should have been applied to a review of the adjudicator’s interpretation of the agreement is that of patent unreasonableness. I agree with the respondent’s submission that by virtue of the adjudicator’s interpretation having met the lower standard of review, the issue of how much higher the standard ought to have been, raises a moot point. This ground of appeal should therefore be dismissed. Excess of Jurisdiction The appellant submits that the trial judge exceeded his jurisdiction on the application by deciding matters that were not before him. The adjudicator had determined that as a result of his decision on the main point, it was not necessary to deal with an ancillary point argued by the union in the event that its first argument was successful. Having determined that the grievor did not accumulate vacation leave entitlement while on paid leave due to injury on duty, the adjudicator stated it was not necessary to decide whether she lost any entitlement by not having used it, that is whether the "use it or lose it" theory was applicable. The trial judge however commented, as set out above, that : The adjudicator determined quite correctly that with respect to entitlement to vacation, the collective agreement reflected and embraced the "use it or lose it" principle and the grievor did not comply with article 17.05(a). While I agree that the trial judge apparently misunderstood the comments of the adjudicator in this respect, and it was not necessary to make any finding concerning the “use it or lose it” principle, the trial judge’s observations on the second issue are merely obiter dicta. The additional comments do not detract from his agreement with the conclusions reached by the adjudicator on the first issue. Nor should they result in a reversal of the trial judge’s decision on the main issue. Did the adjudicator amend the Collective Agreement? The appellant submits that the adjudicator effectively amended the Collective Agreement when he found that in order to accumulate vacation benefits the grievor had to provide a minimum period of “active” service each month, in the following passage of his award: . . . Here the agreement establishes service related benefits in relation to a minimum monthly period of "active service" as defined in Article 1.02. Surely receiving full 'salary equivalent' while at home on I.O.D. leave pay does not constitute 'active service' for the Employee which should give rise to earned benefits. It is submitted that the adjudicator added the word “active” and thereby amended the agreement. The appellant argues that the adjudicator also erred by drawing a distinction between “salary” and “pay” which resulted in an imposition of a meaning on the language of the Collective Agreement which the words cannot reasonably bear, and therefore his decision is patently unreasonable. The relevant sections of the Collective Agreement are as follows: 1.02 Service For the purposes of this Agreement, “service” means: (a) (1) total accumulated months of employment for employees where appointments have been made by the Employer under the provisions of the Civil Service Act; and (2) total accumulated months of unbroken full-time employment where the unbroken employment in Departments, Boards, Commissions and Agencies enumerated in Appendix 3, has been a combination of full-time and unbroken non-civil service and civil service employment. (b) (1) Notwithstanding Article 1.02(a), except as otherwise provided in this Agreement, one (1) month of service and therefore one (1) month of service related benefits shall be credited to an employee who does not receive salary for ten (10) days or less during that calendar month. (2) Notwithstanding Article 1.02(a), except as otherwise provided in this Agreement, no service and therefore no service related benefits shall be credited to an employee who does not receive salary for in excess of ten (10) days during that calendar month. (3) For the purposes of Article 1.02(b)(1) and 1.02(b)(2), service related benefits are vacation, sick leave and Public Service Awards. . . . 17.01 Annual Vacation Entitlement An employee shall be entitled to receive annual vacation leave with pay: . . . (b) each year after forty‑eight (48) months of service at the rate of one and two‑thirds (1-2/3) days for each month of service; and . . . 39.01 Reporting of Injuries An employee who is injured on duty shall immediately report or cause to have reported any injury sustained in the performance of his duties to his immediate supervisor in such manner or on such form as the Employer may from time to time prescribe. 39.02 Injury Pay Provisions Where an employee is injured on duty and it is determined by the Nova Scotia Workers' Compensation Board that the employee is unable to perform his duties, the Employer shall grant to the employee injury on duty leave with pay, for such a period as the Workers' Compensation Board may specify. 39.03 Workers' Compensation Benefits An employee receiving compensation benefits under the Workers' Compensation Act for injury on the job shall receive the difference between his regular pay and the benefits that are paid by the Workers' Compensation Board during his period of temporary total disability. 39.04 Recurring Disability An employee who ceases to be an employee and suffers a recurrence of a disability resulting from an injury on the job while in the employ of the Province will receive benefits in accordance with the provisions of the Workers' Compensation Act. The adjudicator summarized the effect of these sections and the grievor’s position as follows: The upshot of these provisions is that vacation and sick leave are “service related benefits”, and that a month of service, where relevant, is only earned where one receives salary for more than 10 days in the month. The key to the Union’s argument, then, is that I.O.D. “pay” under Article 39.02 is “salary” for the purposes of Article 1.02 definitions of service, upon which vacation entitlements are earned under Article 17.01. Thus, under Article 17.01(b), says the Union, the Grievor was earning 1_ days of annual vacation entitlement for each “month” of service, including time spent on I.O.D. leave. After reviewing the overall scheme of the Agreement, the adjudicator agreed with the employer’s position, that is, that the “pay” received while on injury on duty leave was a “benefit”, not “salary”, under Article 1.02. The use of the word “active” to describe the service required to earn entitlement to the benefit of vacation, did not amend the Agreement. In drawing a distinction between “salary” and “pay”, the use of the word “active” was simply a method of explaining the difference between the funds gained from work from those funds acquired as a benefit of past service. In my view the use of the descriptor “active” in the adjudicator’s decision was not an amendment to the Agreement, nor was his interpretation one which could be said to be patently unreasonable. In United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd. (1993), 102 D.L.R. (4th) 402, (S.C.C.) Sopinka J. described the meaning of patently unreasonable in the following passage (page 418): Once it has been determined that curial deference to a particular decision of a tribunal is appropriate, the tribunal has the right to be wrong, regardless of how many reviewing judges disagree with its decision. A patently unreasonable error is more easily defined by what it is not than by what it is. This court has said that a finding or decision of a tribunal is not patently unreasonable if there is any evidence capable of supporting the decision even though the reviewing court may not have reached the same conclusion (W.W. Lester (1978) Ltd. v. U.A., Local 740 (1990), 76 D.L.R. (4th) 389 at pp. 418-19, [1990] 3 S.C.R. 644, 48 Admin. L.R. 1), or, in the context of a collective agreement, so long as the words of that agreement have not been given an interpretation which those words cannot reasonably bear (Bradburn, supra, per Laskin C.J.C., at p. 162). What these statements mean, in my view, is that the court will defer even if the interpretation given by the tribunal to the collective agreement is not the "right" interpretation in the court's view nor even the "best" of two possible interpretations, so long as it is an interpretation reasonably attributable to the words of the agreement. Or, as stated by Dickson J. in C.U.P.E., at p. 425: " . . . was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?" In my opinion the award of Adjudicator Archibald was not patently unreasonable, and Justice Goodfellow committed no reversible error in dismissing the application for certiorari. I would, accordingly, dismiss the appeal with costs in the amount of $1,000.00. Roscoe, J.A. Concurred in: Jones, J.A. Bateman, J.A.