Kilburn v. Canada ( Treasury Board )
T-1-96
MacKay J.
12/12/97
23 pp.
Application to set aside denial of grievance-Applicant air traffic controller-Collective agreement including letter of understanding (LOU 3-91) providing for maintenance of salary of controller who had used up any sick leave to which entitled and who had been found medically unfit and lost Licence Validation Certificate-LOU 3-91 providing salary maintenance not to exceed one year unless, through consultation on individual cases, parties agreeing to extension of salary maintenance-After applicant leaving work because of illness in September 1991, not filing usual forms required of those on sick leave, despite numerous reminders, until March 1992-Licence Validation Certificate expiring April 1, 1992-After June 1992 again neglecting to file medical certificates to explain basis for failure to work, though management continuing to direct that those be submitted-In December 1992, examined by Civil Aviation Medical Examiner who reported that he was medically unfit as result of psychiatric ailments, including anxiety, depression, alcoholism-Upon receipt of that report, Superintendent of Air Traffic Services and Human Resources informing applicant would be on maintenance of salary from January 1993 until January 1994-Day after maintenance of salary term expired put on leave without pay-Meanwhile applicant requesting involuntary retirement on ground medically unfit for work of controller-On March 2, 1994, requesting extension of salary maintenance-After considering request, Superintendent's summary of situation, application denied without either consultation with, or submissions from, union-Request for involuntary retirement accepted in June 1994-On June 22, 1994, manager, on behalf of applicant, but without applicant's knowledge, submitting request for retroactive extension of applicant's salary maintenance program from January to June 1994-Request not reported to union-Request again denied-When informed of denial of second request, applicant grieved decision-Adjudicator holding LOU 3-91 envisaging possibility of exceeding one-year maintenance of salary period if parties agreeing to do so as result of consulting on specific case where such extension sought-Holding normally party initiating such consultation one seeking extension and employer having no onus to initiate consultation process-Declined to rule on whether employer having duty to act in fair, reasonable manner, but held management not acting unreasonably in asking applicant to submit various medical certificates and to submit to medical examinations-Application allowed-Curial deference to be accorded adjudicator's decision-In interpreting LOU 3-91 adjudicator dealing with issue clearly within special expertise i.e. interpretation of collective agreement-Court could only intervene if decision made either in insufficiently rational manner in relation to facts in evidence or by infringing rules of natural justice or procedural fairness-Court declined to intervene in adjudicator's finding reference to consultation agreement between parties, anticipated by LOU 3-91, not normally imposing obligation on employer to initiate consultation process-Decision not so unreasonable as to justify intervention of Court-In regard to second request for salary maintenance, adjudicator failing to distinguish factual bases of first and second requests-Factual circumstances surrounding two requests requiring each be considered separately-Not fitting adjudicator's own concept of normal circumstances-Where neither applicant nor union aware of request for extension, made for his benefit, would be unreasonable to presume either should initiate steps for consultation-At very least LOU 3-91 requiring, in circumstances of second request, union or applicant be made aware of request-Respondent urging second request merely gratuitous act to assist applicant by another employee, his manager, who apparently felt some personal responsibility for part of delay in obtaining necessary medical assessment of applicant's condition-In failing to consider application of collective agreement, as provided by LOU 3-91, in circumstances of second request, where employer failing to notify applicant or union of request, adjudicator erred in law-Failure to provide definitive ruling on whether, as matter of principle, employer having general obligation to apply collective agreement in fair and reasonable manner, not reviewable error-Adjudicator not erring in law by declining to enunciate general principle of law-Applicant urging Court should enunciate principle sought, with view to providing guidance to adjudicator if application for judicial review allowed, matter referred to adjudicator for reconsideration-Not basis for Court expressing view on principle without reference to particular facts-Any such statement of principle mere dicta-Court's task to assess whether adjudicator's decision made in rational manner in reliance on facts in evidence, and to ensure adjudicator's process not infringing applicable rules of natural justice, procedural fairness-Adjudicator's decisionmaking not suffering from any of these faults-Public Service Staff Relations Act, R.S.C., 1985, c. P-35.