Judgments

[1994] 1 F.C. 374

T-333-93

The Attorney General of Canada (Applicant)

v.

Randall Milson Degaris (Respondent)

Indexed as: Canada (Attorney General) v. Degaris (T.D.)

Trial Division, Cullen J.—Ottawa, September 29 and October 6, 1993.

Public Service — Labour relations — Application to set aside Adjudicator’s decision chronic short-staffing not excuse to deny leave under collective agreement — Interpretation Act, s. 43 requiring application of privative clause in P.S.S.R.A., s. 101 — Adjudicator’s decision reviewable only if wrongly interpreted statute conferring jurisdiction or collective agreement — As requirements of Public Service Staff Relations Act, ss. 92, 93 that there be grievance met, within Adjudicator’s jurisdiction to hear matter — Standard of review of interpretation of collective agreement patent unreasonableness — Interpretation of “operational requirements” supportable by words of collective agreement, and correct — Nothing in F.A.A. or P.S.S.R.A. denying Adjudicator jurisdiction to assess adequacy of staffing for purpose of interpreting collective agreement — Adjudicator merely stating consequence of failure to consider provisions of collective agreement in staffing calculations — Open to Adjudicator to assess adequacy of staffing in context of collective agreement — Not confined to determining whether reason given genuine or whether irrelevant considerations involved.

This was an application to quash and set aside the Adjudicator’s decision allowing the respondent’s grievance. The respondent is an air traffic controller, employed by the applicant within Transport Canada at the Lester B. Pearson International Airport since 1970-71. In 1991 he requested a year’s leave of absence without pay pursuant to clause 10.09 of the collective agreement to go to Saudi Arabia on an International Civil Aviation Association (ICAO) assignment. That clause provides that leave will be granted for such purposes, “operational requirements permitting”. The request was refused because of operational requirements—staffing was too low and the applicant could not afford to have any personnel on leave. Eventually the respondent resigned to accept the assignment. When he returned he was reinstated at the minimum pay level, although he had been at the maximum and earning a 5% premium as a supervisor prior to his resignation. Nine supervisors were required to fulfil the applicant’s staffing requirements in the respondent’s unit. Prior to the respondent’s resignation, there were only seven supervisors. After he left no others were hired and one was transferred to another division for training. Toronto International Airport has been under-staffed since the 1970s. The applicant has repeatedly refused to grant leave without pay to employees who wished to participate in the ICAO program. The Adjudicator held that chronic short-staffing would not be used as an excuse for denying the respondent leave under the collective agreement. He held that short-staffing would justify a refusal only if the employer, through no fault of its own, finds itself short staffed to the extent that it could not deliver the service required by its clients.

The applicant relied upon the Financial Administration Act, sections 7 and 11 and the Public Service Staff Relations Act, section 7 in arguing that the Adjudicator had no jurisdiction to assess the adequacy of its staffing decisions. It further argued that the Adjudicator’s jurisdiction with respect to the interpretation of operational requirements was limited to determining whether staffing was the genuine reason for denying leave or whether other irrelevant considerations formed the basis for the applicant’s decisions.

Public Service Staff Relations Act, section 101 provided prior to its repeal that every decision of an adjudicator was final and not subject to review in any court. Interpretation Act, section 43 deals with the effect of the repeal of an enactment.

Held, the application should be dismissed.

Interpretation Act, section 43 required the application of the privative clause found in section 101 of the Public Service Staff Relations Act because (1) this was a proceeding which was under way in respect of a right, prior to the repeal of section 101; (2) the applicant’s rights or privileges, with respect to the grounds of review allowed, were determined as of the time of the decision and/or the time allowed for the applicant to apply for judicial review; (3) the repeal did not affect the previous operation of the statute. Common law rules as to the effect of changes in legislation would also mandate application of the privative clause.

Even though the section 101 privative clause applied, the Adjudicator’s decision could be reviewed if he wrongly interpreted the statute conferring jurisdiction, and in relation to his interpretation of the collective agreement. The standard with respect to an error as to jurisdiction is that of correctness. The only provisions granting jurisdiction to the Adjudicator are Public Service Staff Relations Act, sections 92 and 93, which merely required that there be a grievance. As there was a grievance, the requirements under those two sections were met.

Since the privative clause applied, the standard of review with respect to the Adjudicator’s interpretation of the collective agreement was that of patent unreasonableness, which permits judicial intervention only when the adjudicator’s decision is clearly not capable of being supported by the words of the collective agreement. By this standard, the interpretation does not even have to be the “right” one. A decision is not patently unreasonable if there is any evidence capable of supporting the decision, even though the reviewing court may have reached a different conclusion 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. Not only was the Adjudicator’s interpretation of “operational requirements” capable of support by the words of the agreement, but it was the correct and best interpretation. Adjudicators have stated on several occasions that an employer cannot rely on “operational requirements” as an excuse “where it has failed to provide staffing personnel sufficient to meet its contractual obligations, particularly over a long period of time, and that to do so constitutes a violation of the collective agreement.” The Adjudicator’s decision was also supported by other factors, i.e. the request for leave was made early enough to give the employer sufficient time to replace the respondent; the shortage of personnel was chronic and the employer did not intend to correct it; the multiplier factor was calculated without factoring in the likelihood of leaves of absence under clause 10.09 and was never corrected.

Nothing in the Financial Administration Act or the Public Service Staff Relations Act denied the Adjudicator jurisdiction to assess the adequacy of staffing for the purpose of interpreting the collective agreement. The applicant’s staffing decisions must be open to scrutiny within the context of the collective agreement. The provisions of a collective agreement do have an effect on staffing and this was contemplated by the parties. The agreement governs the employment relationship. That it directs the employer to act in a certain way is part of the deal. The Adjudicator merely clarified the collective agreement. He did not order the applicant to change its staffing policies, but merely stated that if the applicant failed to take into account provisions of the collective agreement in calculating the actual staff required, it would have to live with the consequences, i.e. not being able to rely on it for an excuse under clause 10.09.

The Adjudicator had no obligation to find “irrelevant considerations” before he decided whether or not an excuse was valid. He can look to the facts of a situation and decide that the refusal was not justified. The Adjudicator can look into what “operational requirements” means. That staffing was given as a reason does not mean it will be an operational requirement. The Adjudicator’s decision can also be supported on the ground that he found that there was not a valid excuse given the applicant’s actions after the respondent’s departure.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Financial Administration Act, R.S.C., 1985, c. F-11, ss. 7 (as am. by S.C. 1991, c. 24, ss. 2, 49), 11 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 22).

Interpretation Act, R.S.C., 1985, c. I-21, s. 43.

Public Service Staff Relations Act, R.S.C., 1985, c. P-35, ss. 7, 92, 93, 101 (rep. by S.C. 1992, c. 54, s. 73).

CASES JUDICIALLY CONSIDERED

APPLIED:

R. v. Ford, [1993] O.J. No. 1936 (C.A.) (Q.L.); Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230; (1993), 102 D.L.R. (4th) 609; 152 N.R. 1; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; (1979), 25 N.B.R. (2d) 237; 97 D.L.R. (3d) 417; 51 A.P.R. 237; 79 CLLC 14,209; 26 N.R. 341; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; (1993), 102 D.L.R. (4th) 402; 153 N.R. 81.

DISTINGUISHED:

Jarrell v. The Queen, A-931-83, Mahoney J.A., judgment dated 6/9/84, F.C.A., not reported.

REFERRED TO:

Volvo Canada Ltd. v. U.A.W., Local 720, [1980] 1 S.C.R. 178; (1979), 33 N.S.R. (2d) 22; 99 D.L.R. (3d) 193; 57 A.P.R. 22; 79 CLLC 14,210; 27 N.R. 502; Caimaw v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; (1989), 62 D.L.R. (4th) 437; [1989] 6 W.W.R. 673; 102 N.R. 1; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; (1993), 101 D.L.R. (4th) 673; 150 N.R. 161; Laws et al. and Treasury Board (Transport Canada), File Nos. 166-2-6437-6440, 6666, 6473/4, 7026-7029, decision dated 16/1/80, P.S.S.R.B.; Savage and Treasury Board (Transport Canada), File No. 166-2-9734, decision dated 9/6/81, P.S.S.R.B.; Milne and Treasury Board (Transport Canada), File No. 166-2-18376, decision dated 17/8/89, P.S.S.R.B.; Rooney and Treasury Board (Transport Canada), File No. 166-2-21306, decision dated 13/8/91, P.S.S.R.B.; Graham and Treasury Board (Transport Canada), File No. 166-2-21414, decision dated 26/8/91, P.S.S.R.B.; MacGregor and Treasury Board (Transport Canada), File No. 166-2-22489, decision dated 22/10/92, P.S.S.R.B.; McConaghy and Treasury Board (Transport Canada), File No. 166-2-22945, decision dated 24/3/93, P.S.S.R.B. ([1993] C.P.S.S.R.B. No. 43 (Q.L.)); Hollier et al. and Treasury Board (Transport Canada), File Nos. 166-2-10526, 10527, decision dated 17/11/81, P.S.S.R.B.; Canada (Treasury Board) v. Randal, A-1589-83, Heald J.A., judgment dated 23/10/84, F.C.A., not reported; affg file Nos. 166-2-13810 and 166-2-13811, decision dated 19/10/83, P.S.S.R.B.

APPLICATION to set aside Adjudicator’s decision [Degaris and Treasury Board (Transport Canada), File Nos. 166-2-22490 and 166-2-22491, decision dated 4/1/93, P.S.S.R.B. ([1993] C.P.S.S.R.B. No. 1 (Q.L.))] that chronic short-staffing could not be used as an excuse to deny leave under the collective agreement. Application dismissed.

COUNSEL:

Harvey A. Newman and Neelam Jolly for applicant.

Peter J. Barnacle for respondent.

SOLICITORS:

Deputy Attorney General of Canada for applicant.

Nelligan/Power, Ottawa, for respondent.

The following are the reasons for order rendered in English by

Cullen J.: This is an application by the Attorney General of Canada, pursuant to section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)], for an order quashing and setting aside the decision of A. S. Burke [[1993] C.P.S.S.R.B. No. 1 (Q.L.)], appointed as Adjudicator pursuant to the Public Service Staff Relations Act, R.S.C., 1985, c. P-35, section 93, in which he allowed the respondent’s grievance. The Adjudicator held that the chronic short-staffing problems at the Terminal Control Unit of Lester B. Pearson International Airport could not be used as an excuse for denying the respondent leave under the collective agreement.

FACTS

At all material times the parties were governed by the collective agreement between the Treasury Board and the Canadian Air Traffic Control Association.[1]

The respondent, Randall Milson Degaris, was and is an air traffic controller, employed by the applicant within Transport Canada at the Lester B. Pearson International Airport. The respondent has been employed with Transport Canada since 1970-71 and has worked at the Terminal Control Unit (TCU) since 1975. The only break in the respondent’s employment was from January 1992 to June 1992 when the respondent had to resign in order to go to Saudi Arabia on an International Civil Aviation Association (ICAO) assignment.

In the spring of 1991 the respondent was advised that an assignment with the ICAO in Saudi Arabia was available. ICAO places air traffic controllers from one country to another and this is usually done through External Affairs. In July 1991, the respondent requested a year’s leave of absence without pay, pursuant to clause 10.09 of the collective agreement, in order to work on this assignment in Saudi Arabia.

Clause 10.09 of the collective agreement reads as follows:

10.09 It is agreed that, operational requirements permitting, employees in the Air Traffic Control Group who are selected for employment by the ICAO, CUSO or under Canada’s External Aid program, will be granted leave of absence without pay on presentation of a letter indicating their acceptance by such an organization.[2] [Emphasis added.]

In August or September[3] the applicant refused the respondent’s request for leave. The applicant cited “operational requirements” in its refusal to grant the respondent leave. The applicant indicated that staffing was too low and it could not afford to have any personnel on leave. Instead the applicant suggested that the respondent take a leave of absence under a program known as the “self-funded leave program” in four to five years at which time staffing levels might permit. On August 28, 1991 the respondent requested leave for “personal reasons” pursuant to clause 10.07 of the collective agreement. This too was refused.[4]

On September 9 or October 28, 1991,[5] as a result of the applicants’ refusal to grant any form of leave, the respondent sent a memo to the applicant announcing his intention to resign or retire effective December 31, 1991. The applicant accepted this letter of resignation or retirement.

The respondent and his family went to Saudi Arabia in January 1992 but had to return after only a few months, in June of 1992, because he was not able to make enough to support his family. Upon his return, the respondent requested his old job back. He was told that he could have a job but had to start out at the lowest level of pay. Several weeks later he requested a position as a supervisor. This request was refused.

The respondent is presently employed as an Operational Controller in the Terminal Control Unit (“TCU”) of the Toronto Area Control Centre at the minimum level of pay of the AI-05 classification. In the spring of 1991 the respondent was a supervisor in the TCU and as such received the maximum salary at the AI-05 level, plus a 5 percent supervisor’s premium. The difference between the AI-05 minimum level and the maximum level plus the 5 percent premium is over $20,000 per year, according to the respondent. The respondent had a sick leave credit balance of 1,069.59 hours which was lost due to his resignation. Further, he lost all of his severance entitlement under the collective agreement. Entitlement to severance pay under the collective agreement is tied into the same formula as the superannuation. This formula requires an employee to have ten years of service and be over forty-five to qualify for severance. In 1992 the respondent was not yet forty-two. The respondent was, however, aware of these consequences and chose to resign anyway.[6]

The TCU is the heart of the operation and the stress level is extremely high due to the high volume of traffic and the short-staffing problem. The stress problems are especially severe in the supervisory position where the staff has a dual role to play; they have to cover their own work and fill in for other supervisors on their days off and then become controllers due to the short-staffing problems. Due to this short-staffing there was an extreme amount of overtime. For example, one of the witnesses at the hearing pointed out he had to work four of his five days off.[7]

The applicant required nine supervisors in the respondent’s unit in order to fulfil its staffing requirements. However, prior to the respondent’s resignation, there were only seven supervisors employed in his unit. Indeed, after he left no others were hired and one—Mr. Kenneth Ralph—was allowed a transfer to another division for training. The applicant apparently did not mention operational requirements when Mr. Ralph was transferred and no acting supervisors were appointed during this period. Therefore the staffing of supervisors in the TCU went from seven in December of 1991 when the respondent was still there, to six and then to five when Mr. Ralph was transferred.

It is not challenged that the Toronto International Airport has been under-staffed, except for a brief period in the 1980s, since the 1970s.[8] Over the years, as a result of this short-staffing problem, the applicant has repeatedly refused to grant leave without pay to employees who wish to participate in the ICAO program. Although a number of employees have requested leave over the years only one has been granted and this was in 1983 when short-staffing was evidently not a problem.[9] Any reference to the respondent’s memorandum of argument is a reference to the respondent’s memorandum of argument as amended. Even in the context of full staffing the applicants’ staffing multiplier (the method by which it calculates the number of staff required to give effective service based on the number of absences etc.) did not enable it to comply with the provisions of 10.09 or 10.07 since the absences related to these provisions were never factored into the equation.[10]

On October 13 or 18,[11] 1991 the respondent presented a grievance pursuant to the collective agreement. The grievance was as follows:

On Sept. 9, I requested a years leave of absence for personal reasons as per para. 10.07 of the collective agreement. In addition during July ICAO requested my release as per para. 10.09. Both were denied quoting operational requirements. In the 20 years of my employment at Toronto, staffing has never reached and maintained a satisfactory level. My employer’s inability to adequately staff his facility should not be accepted as a suitable rationale to deny my own legitimate aspirations.

This grievance was denied at the first, second and final levels on the basis that the respondent’s request for leave did not come at a time when Toronto Area Control Centre staffing permitted the granting of a leave of absence to employees for ICAO assignments.

The matter was then referred to an adjudicator pursuant to the Public Service Staff Relations Act, section 92. The hearing was held before Mr. Albert S. Burke, Board Member, Public Services Staff Relations Board, on November 5 and 6, 1992. The respondent only relied on the clause 10.09 issue and not the 10.07 issue so the Adjudicator only ruled on that issue.

The Adjudicator ruled as follows:

In the case before me, not only did the employer admit that the short-staffing has been ongoing for a long period of time, but even when they used the multiplier to decide how many staff would be required to cover all of their needs they did not factor in clause 10.09 or indeed clause 10.07.

The employer has not convinced me that operational requirements were a proper reason for refusing leave to the griever under clause 10.09. Short-staffing can only be used to justify the employer’s refusal on the ground of operational requirements of an employee’s request for a benefit under the collective agreement if the employer, through no fault of their own, find themselves short-staffed to the extent that they could not deliver the service required by their clients. In this case the employer has been short-staffed for many years and, even when the griever was absent from January 1992 to July 1992, his position was not filled. Added to that is the fact that another supervisor was seconded out of the area by management and his position was also left vacant.

The short-staffing problem was clearly brought about by the employer’s lack of recruitment and retraining of qualified employees to ensure that they have sufficient staff to meet their obligations under the collective agreement as well as their service to the client.

Counsel for the employer referred me to the Hollier and Willis decision (supra). In that case the adjudicator took into consideration the unknown factor that management was facing due to a new computerized air traffic control system being introduced; as well management was awaiting the outcome of the Dubin Commission Report. These factors left management in a position of not knowing how many staff they would require to provide their services. Added to that was the unknown factor of what effect pending legislation dealing with early retirement would have on the number of staff required.

In the case before me, these factors did not exist. The employer’s representative testified that new trainees were about to take up their duties as air traffic controllers and the fact that they operated with two less supervisors while the griever was away clearly demonstrates that the refusal of leave under clause 10.09 using operational requirements was not justified.

In terms of corrective action, I have decided to reserve on the issue of remedy and I direct the employer to explore with the griever and his bargaining agent the possibility of arriving at a mutually satisfactory resolution of this matter.[12]

ISSUES

The applicant states that the issues are:

Whether the Adjudicator’s decision that operational requirements permitted the applicant to grant leave to the respondent, even though at the time the request was considered, the applicant’s operations were short staffed, constitutes a patently erroneous interpretation of Article 10.09 of the collective agreement. [My emphasis.]

The respondent suggests that the issues are:

a) Whether the decision of the adjudicator, that the applicant had violated the collective agreement in refusing leave under article 10.09 on the basis of operational requirements, was patently unreasonable in all the circumstances.

b) Whether the decision of the adjudicator, that the applicant had violated the collective agreement in refusing leave under Article 10.09 on the basis of operational requirements was patently unreasonable in all the circumstances, constituted reviewable error of law. [My emphasis.]

In summary, it is clear the decision to be made here is whether or not the Adjudicator reached a conclusion that was patently unreasonable.

CONCLUSIONS

I am satisfied that the privative clause found in section 101 of the Public Service Staff Relations Act, will apply in this case. The operation of section 43 of the Interpretation Act [R.S.C., 1985, c. I-21] would require its application for the following reasons:

(1) This is a proceeding which was under way, in respect of a right, prior to the repeal of section 101 [repealed by S.C. 1992, c. 54, s. 73] (paragraphs 43(c) and 43(e)).

(2) The rights or privileges of the applicant, with respect to the grounds of review allowed, were determined as of the time of the decision and/or the time allowed for the applicant to apply for judicial review. At that time the applicant’s rights or privileges accrued and the privative clause was still in effect (paragraph 43(c)).

(3) This repeal is not to affect the previous operation of the statute. This statute, which contained section 101, operated previously to limit the width of the review and therefore it must remain in effect for this particular case (paragraph 43(b)).

Also, based on the recent Ontario Court of Appeal decision in R. v. Ford, O.J. No. 1936, August 26, 1993 (C.A.), not yet reported, it is likely that the common law rules as to the effect of changes in legislation would mandate the application of the privative clause, and as I have said since the privative clause is applied the standard of review is going to be one of patent unreasonableness. This standard, as illustrated by the Supreme Court of Canada in Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230, only allows for judicial intervention when the decision of the adjudicator is clearly not capable of being supported by the words in the collective agreement. It is clear that under this standard the interpretation does not even have to be the “right” one. Not only was the interpretation accorded to the meaning of “operational requirements” by the Adjudicator capable of support based on the words of the agreement but it was the correct and best interpretation, with many other adjudicators having said the same thing in previous cases.

Even in the absence of section 101 the proper standard to be applied is one of correctness, subject of course to the normal position taken by the Court with respect to the deference accorded to the decisions of experts within the administrative scheme. Discussion of this has occurred in several Supreme Court of Canada cases.[13] Since the standard of correctness is not going to be applied in this case I will not deal with what these cases have said about deference.

REVIEW UNDER THE PRIVATIVE CLAUSE

(a)       Types of Review:

The decision of the Adjudicator is subject to review in two possible ways even though the section 101 privative clause still applies. First, the Adjudicator’s decision could be reviewed if he wrongly interpreted the statute granting him jurisdiction. The standard with respect to this type of error will always be one of correctness. This principle was most recently affirmed in Dayco (Canada) Ltd. v. CAW-Canada (supra).

In this case the labour arbitrator, appointed under the Ontario labour legislation, was asked to determine grievance in relation to retirees’ benefits under a collective agreement that had expired. The arbitrator only had jurisdiction to deal with collective agreements and it was argued that since there was no collective agreement there was nothing for him to deal with. He decided, however, that the rights survived the termination of the agreement. Therefore it was still as if the agreement existed in that respect so he could have jurisdiction to hear the issue. The Court said that he was correct in this regard. The issue arose as to whether or not the Arbitrator’s decision was reviewable since he required a collective agreement to arbitrate. Mr. Justice La Forest stated that, normally in the labour context, the administrative body will have the right to be wrong (i.e., jurisdiction stricto sensu):

After all, the most frequent challenge of an arbitrator’s jurisdiction is an assertion by one of the parties that the incident underlying a grievance is not contemplated by the collective agreement. These issues are resolved by the arbitrator’s application of the facts to the agreement as he or she interprets it, and this process is clearly intended to be left to the expertise of the arbitrator. However, when it comes to determining whether a collective agreement governs the rights and obligations of the parties irrespective of the interpretation of that agreement, the arbitrator has no benchmark; the existence or subsistence of the collective agreement itself is called into question. Although the arbitrator has the power to decide these questions, he or she must be correct in doing so.[14] [My emphasis.]

There does not seem to be any dispute as to the Adjudicator’s interpretation of the legislation granting him jurisdiction[15] nor could there be any. The only provisions granting jurisdiction to the Adjudicator are sections 92 and 93. All that is required in these sections is that there be a grievance. In this case there most certainly is a grievance. It is clear that the requirements under these two sections are met. The applicant argues that the Adjudicator had no jurisdiction given the wording of 10.09 of the agreement to decide the “adequacy of the applicant’s staffing policy”. The applicant relies, also, on certain provisions of the Financial Administration Act [R.S.C., 1985, c. F-11] and the Public Service Staff Relations Act for this proposition. It is clear that this is a question of a different nature. That is, was his opinion of the interpretation of the collective agreement proper, based on all of those factors? This is not the same as the interpretation of his jurisdiction to hear the matter. As such, this issue is within the field that Parliament intended him to decide upon.[16]

The second type of review to which the Adjudicator could be subject is in relation to his interpretation of the collective agreement. Because of the privative clause this standard will, unlike the previous one, be that of patent unreasonableness.

Before analyzing the interpretation given to “operational requirements” by the Adjudicator, it is necessary to describe the effect of applying a patently unreasonable standard of review. What it means to apply a patently unreasonable standard of review has been substantially clarified after the recent decision of the Supreme Court of Canada in United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 230 wherein Sopinka J. stated:

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 … 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 …. 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.[17]

The question is, is the interpretation given to the words “operational requirements” patently unreasonable given the above definition of what is not patently unreasonable? The short answer to this would seem to be no, indeed, the decision of the Adjudicator is not only reasonable but it is probably the most logical and it is certainly supported by the case law. Even on the correctness test the Adjudicator’s decision would still stand.

(b) Application of Patent Unreasonableness Standard to the Interpretation of 10.09:

This issue does not really need a great deal of analysis. It is clear that the Adjudicator’s decision as to the meaning of “operational requirements” is, at the very least, one which the wording of the agreement would reasonably bear. Further, it seems, given the cases cited by the Adjudicator, that this interpretation is not novel or unique to this Adjudicator. Adjudicators have stated on several occasions that an employer cannot rely on “operational requirements” as an excuse “where it has failed to provide staffing personnel sufficient to meet its contractual obligations, particularly over a long period of time, and that to do so, constitutes a violation of the collective agreement”.[18]

The Adjudicator’s decree is also buttressed by other factors very much in evidence, namely:

1. The application for leave was sought in July 1991, giving the employer what should have been more than adequate time to deal with the fact of losing this supervisor. He could have been replaced as a supervisor by elevating one of the controllers, moving in a supervisor or controller from another area, or dealing with it by more overtime work, a not unusual thing at Toronto. The employer seems to have made no effort and simply refused the application.

2. The chronic shortage of personnel was admitted to have lasted more than 15 years and seemingly the employer did not expect or intend to correct it in that the employer suggested the applicant take a leave of absence under the “self-funded leave programme in four or five years at which time travel levels might permit it”. [My emphasis.]

3. There seems little motivation on the part of the employer to correct the staff shortage and he relied on this shortage to disallow ten or so other applications rather than dealing effectively with the problem. He could keep staff on and working extensive overtime, confident in the fact that no leaves were granted or going to be granted.

4. The multiplier factor was calculated in error without factoring in the likelihood of leaves of absence under clauses 10.07 or 10.09. If pressure needed to be brought to bear on Treasury Board, it seems to me a higher requirement for personnel was indicated and the multiplier could and should have been corrected.

In other cases in which adjudicators held operational requirements to be valid excuses the situation was clearly different than it is here. Certainly this reinforces the validity of the interpretation given to clause 10.09.[19]

Counsel for the applicant referred to the case of Jarrell v. The Queen an unreported decision of the Federal Court of Appeal, September 6, 1984 (Court File No. A-931-83) in which the Court dismissed a section 28 [Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10] application to set aside the decision of an adjudicator dismissing a grievance under then clause 10.07 (now 10.09). In that case, the applicant was an air traffic controller at the Oshawa Control tower who requested leave in order to take up employment with ICAO in Saudi Arabia, and who was refused by the employer citing short-staffing which existed within the organization. In reaching its decision, the Court of Appeal quoted from page 15 of the Adjudicator’s decision about the short-staffing problems as follows:

… [T]he Oshawa Control Tower was faced with the prospect that its staff of air traffic controllers would soon be reduced from nine to seven, or by about 22%. The shortage was such that arrangements were made to relocate two employees from other Control Towers to Oshawa. The staff shortage in Oshawa was not unique. Such a shortage existed elsewhere in the Ontario region and, according to the superintendent of operations, it was feared that it could become serious. [At page 3 of the unreported decision.]

The applicant, in part, argued that the Adjudicator committed an error in considering operational requirements elsewhere in the Ontario Region. On this point, the Court of Appeal concluded no error had been made and that clause 10.07 did not limit consideration of operational requirements to the one area alone. The Court affirmed the adjudicator’s decision and rejected the application.

That case can be distinguished from the case at bar based on the nature of the short-staffing problem. In Jarrell, supra, there was an anticipated reduction in staff from nine to seven which gave rise to the problem. In the present case, the problem was chronic. The tower was short-staffed for virtually all of the period from 1980 to 1993, including the period when the respondent was absent due to his resignation. Therefore, the reasoning in Jarrell, supra, cannot apply to this case. In any event, it is not clear that the Court of Appeal directed itself to any question other than the scope of the area to consider with respect to short-staffing, something not at issue here.

Finally, I note that the applicant did not provide any convincing authority to contradict the Adjudicator’s interpretation of clause 10.09.

The applicant argues that the Adjudicator has no jurisdiction to assess the adequacy of the applicant’s staffing decisions within the Public Service. The applicant relies on section 7 [as am. by S.C. 1991, c. 24, ss. 2, 49] and section 11 [as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 22] of the Financial Adminstration Act, R.S.C., 1985, c. F-11 and section 7 of the Public Service Staff Relations Act, R.S.C., 1985, c. P -35.[20] A copy of s. 7 of the Public Service Staff Relations Act, is located under tab E, at p. 182 of the applicant’s application record. The easiest way of dealing with this is to note that there is nothing in either of the sections cited that explicitly or implicitly denies the Adjudicator jurisdiction to assess the adequacy of staffing for the purpose of interpreting the collective agreement.

Further, the staffing decisions of the applicant must be open to scrutiny within the context of interpreting the collective agreement. It is clear that the provisions of a collective agreement do have an effect on staffing and that this is contemplated by the parties. The agreement was entered into in good faith and it must govern the employment relationship between the parties, otherwise it would not really be of any use. The fact that it directs the employer to act in a certain way is all part of the deal. All the Adjudicator is doing is clarifying, to the parties, what the collective agreement is saying. In this case the Adjudicator did not order the applicant to change its staffing policies. He merely stated that if the applicant failed to take into account the provisions of the collective agreement in calculating the actual staff required it would have to live with the consequences. That is, not being able to rely on it for an excuse under clause 10.09.[21]

The applicant argues that the decision of the Adjudicator is a usurpation of the applicant’s managerial prerogative. For the same reasons as given above I do not accept this argument.

Further, the applicant argues that the Adjudicator only has jurisdiction, with respect to the interpretation of operational requirements, to determine whether staffing was a genuine reason given for the refusal of leave requested by the employee, or whether other irrelevant considerations formed the basis for the applicant’s decisions.[22] The response to this line of argument is threefold.

First, there is no indication that the Adjudicator has any obligation to find “irrelevant considerations” before he decides whether or not an excuse was valid. It seems clear that the Adjudicator can look to the facts of the situation and decide, as he has done in this case, that the refusal was not justified.

Second, given the cases mentioned previously, it is clear that the Adjudicator can look into what “operational requirements” means. Therefore the fact that staffing was a reason given does not necessarily mean it will be an operational requirement.

Finally, it is clear that the Adjudicator’s decision can also be supported on the ground that he found that there was not a valid excuse, given the applicant’s actions after the respondent’s departure. As noted earlier, the Adjudicator found the following facts to be of significance:[23]

1. No other person was hired to take the respondent’s position upon his departure.

2. Another person was allowed to move to another division.

3. The applicant did not replace that person either.

4. It was clear in the absence of the respondent the applicant was still able to provide the same level of service.

Given the above arguments I cannot find that the decision of the Adjudicator was patently unreasonable or that he was without jurisdiction. Therefore, this application is dismissed, with costs to the respondent.

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