A-198-78
Attorney General of Canada (Applicant)
v.
R. S. Tucker (Respondent)
Court of Appeal, Pratte, Urie and Ryan JJ.—
Ottawa, September 13 and October 19, 1978.
Judicial review — Public Service — Labour contract —
Benefits of overtime clause applicable if work "scheduled
overtime" less favourable than benefits under call-back pay
clause — Meaning of term "scheduled overtime" — Hand
written notice to respondent before end of shift requiring
"scheduled overtime" work later that evening — Respondent
paid pursuant to overtime clause rather than standby clause
— Whether or not P.S.S.R.B. erred in upholding Adjudicator's
decision that work performed by respondent not "scheduled
overtime" — Public Service Staff Relations Act, R.S.C. 1970,
c. P-35, ss. 23, 91 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28 — Collective Agreement of April 30, 1969,
between the Treasury Board and the Public Service Alliance of
Canada with respect to the Clerical and Regulatory Group
(All Employees), clauses 27, 30.01.
This is a section 28 application to review and set aside a
decision of the Public Service Staff Relations Board on a
question of law referred to it and related to the Chief Adjudica
tor's interpretation of a clause in the collective agreement
between Treasury Board and the Public Service Alliance of
Canada with respect to the Clerical and Regulatory Group (All
Employees). Respondent, a customs officer whose shift finished
at 3:30 p.m., was notified by a hand-written notice attached to
his attendance sheet that he was "on scheduled overtime" that
evening from 7:55 to 9:00 p.m. and received overtime pay
pursuant to Article 27 of the collective agreement. Respondent
asserted that he was entitled in the circumstances to standby
pay and the appropriate compensation, on the ground that the
work performed was not scheduled overtime and referred the
matter to adjudication. The Chief Adjudicator found the work
was done on a call-back which was not scheduled in advance,
entitling the respondent to compensation pursuant to the stand
by provision, and the Board found that the Adjudicator did not
err in law. The critical question is whether the words "sche-
duled in advance" could apply to the work done by respondent.
Held, the application is allowed. The term "scheduled in
advance", as used in clause 30.01, imports the sense of reason
able advance notice; an employee's recall would be "scheduled
in advance" if he had notice of it far enough ahead to make
reasonable rearrangements in his own plans. On the other hand,
a recall occasioned by a situation of which reasonable advance
notice could not be and was not in fact given would be within
the protection of the guarantee given in the standby clause.
There is no need, in order to give effective meaning to the
disputed words, to make a distinction between a schedule,
formal and general in character, applying to more than one
employee or to more than one assignment, and an ordinary
notice, provided that the employee affected was given reason
able advance warning of the extra work. The Public Service
Staff Relations Board erred in law to the extent that the Board
found that the disputed words in clause 30.01 necessarily
referred to a schedule, formal and general in nature, and thus
that the words could refer only to a recall under such a
schedule.
Re International Molders & Allied Workers Union, Local
49 v. Webster Manufacturing (London) Ltd. (1972) 23
L.A.C. 37, referred to. Attorney General of Canada v.
Public Service Staff Relations Board [1976] 2 F.C. 163,
referred to.
APPLICATION for judicial review.
COUNSEL:
W. L. Nisbet, Q.C. for applicant.
M. W. Wright, Q.C. for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent.
The following are the reasons for judgment
rendered in English by
RYAN J.: This is an application under section 28
of the Federal Court Act to review and set aside a
decision made by the Public Service Staff Rela
tions Board, dated April 11, 1978. The decision
was rendered on a question of law referred to the
Board by Her Majesty pursuant to section 23 of
the Public Service Staff Relations Act', R.S.C.
1970, c. P-35, which section was in force at the
time. Section 23 provided:
23. Where any question of law or jurisdiction arises in
connection with a matter that has been referred to the Arbitra
tion Tribunal or to an adjudicator pursuant to this Act, the
Arbitration Tribunal or adjudicator, as the case may be, or
either of the parties may refer the question to the Board for
hearing or determination in accordance with any regulations
made by the Board in respect thereof, but the referral of any
such question to the Board shall not operate to suspend any
proceedings in connection with that matter unless the Arbitra-
' Section 23 was repealed by S.C. 1974-75-76, c. 67, s. 11,
effective October 11, 1975.
tion Tribunal or adjudicator, as the case may be, determines
that the nature of the question warrants a suspension of the
proceedings or unless the Board directs the suspension thereof.
The question of law referred to the Board relat
ed to the interpretation by Edward B. Joliffe,
Q.C., in his capacity as Chief Adjudicator, of a
clause in a collective agreement, signed on April
30, 1969, between the Treasury Board and the
Public Service Alliance of Canada with respect to
the Clerical and Regulatory Group (All
Employees). The matter came before the Chief
Adjudicator on a reference to adjudication by the
respondent, Mr. Tucker, pursuant to section 91 of
the Public Service Staff Relations Act e .
The . factual background to Mr. Tucker's griev
ance is set out in a written statement which was
agreed to by counsel before the Chief Adjudicator:
1. He is a senior customs officer at Edmonton Airport and is
a shift worker.
2. On July 24 or 25, 1969, he was notified in writing which
notice was attached to his attendance sheet that he was "on
scheduled overtime" for July 27 at 8:10 P.M.
3. On July 27, his regularly scheduled working hours were
from 7:30 A.M.-3:30 P.M. (8-hour shift with 1 / 2 hour lunch
break) and, in accordance with the notice given to him on July
24 or 25, he then proceeded to work that evening from 7:55 to
9:00 P.M. on the so-called pre-scheduled overtime, and received
overtime pay pursuant to Art. 27.
After referring to the agreed statement, the
Adjudicator, in his reasons for decision, proceeded:
According to the grievance presented by Mr. Tucker on
August 12, 1969, his overtime work on July 27 was performed
from 7:55 p.m. to 9:00 p.m. at the Edmonton International
Airport, and he asserted that he thereby became entitled to
standby pay and the appropriate compensation under Article 32
of the collective agreement. The employer's replies to the
grievance all alleged that Mr. Tucker had been "scheduled" to
report for overtime to be worked at a specific time with respect
to Air Canada Flight 853. The reply at the second level
2 Section 91 of the Public Service Staff Relations Act pro
vides in part:
91. (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 him of a
provision of a collective agreement or an arbitral award,
and his grievance has not been dealt with to his satisfaction,
he may refer the grievance to adjudication.
specifically stated that the written notification given to Mr.
Tucker was on July 25.
A copy of the notice was filed, certified correct by the
signatures of counsel. It is simply an undated hand-written
memorandum on a plain sheet of paper made with either pen or
pencil and reading as follows:
"Scheduled Overtime
July 27
AIR CANADA/853 ETA 8 10 PM
R. Tucker"
The Adjudicator held that it was clear that
Article 32 of the collective agreement, the
"STANDBY" article, was not applicable in this
case, and this finding was not in issue.
The critical claim of Mr. Tucker was that he
was entitled to "CALL-BACK PAY" under Article
30 of the collective agreement, which reads:
ARTICLE 30
CALL-BACK PAY
30.01 When an employee is recalled to a place of work for a
specific duty, and such recall has not been scheduled in
advance, he shall be paid the greater of:
(a) compensation equivalent to four (4) hours' pay at his
straight-time rate, or
(b) compensation at the applicable overtime rate,
provided that the period of overtime worked by the employee is
not contiguous to his scheduled working hours.
30.02 When an employee is recalled to work overtime under
the conditions described in Clause 30.01, and is required to use
transportation services other than normal public transportation
services, he shall be paid, to a maximum of three dollars
($3.00) each way:
(a) mileage allowance at the rate normally paid by the
Employer where the employee travels by means of his own
automobile, or
(b) out-of-pocket expenses for other means of commercial
transportation.
If Mr. Tucker's submissions were well founded,
he would be entitled to receive, for work done on
the recall, at least four hours' pay at his straight
time rate because that would be in excess of what
his compensation would be at the applicable over
time rate for the time he actually worked. He
would, however, not have the right to the guaran
teed minimum if his recall had been "scheduled in
advance". The critical question then is whether the
words "scheduled in advance" could apply to the
work which he did and of which he had received
written notice in the manner indicated.
The Adjudicator found that the work Mr.
Tucker did was work done on a call-back which
had not been scheduled in advance and, according
ly, that he was entitled to the four-hours' straight
time guarantee. His finding was based on a
meticulous analysis of the language of the various
clauses in the agreement which related to the
scheduling of work, particularly clauses falling
within Article 26 (Hours of Work), Article 27
(Overtime), Article 28 (Pay), Article 30 (Call-
back Pay) and Article 32 (Standby). As I read his
reasons, I concluded that he was of the view, based
on his analysis, that the informal one-shot "notice"
given to Mr. Tucker could not be a "schedule",
and that the work done by Mr. Tucker during the
evening of July 27, 1969 could not have been done
pursuant to a recall "scheduled in advance"
because it was not provided for in a document of
some generality and formality, a document apply
ing to more than a single assignment.
The question of law referred to the Public Ser
vice Staff Relations Board was in these terms:
Whether the Chief Adjudicator erred in law in deciding that
the Grievor's claim fell within the ambit of clause 30.01 of the
Collective Agreement between Treasury Board and the Public
Service Alliance of Canada with respect to the Clerical and
Regulatory Group, Code: 503/4/69. More particularly and
without limiting the generality of the foregoing, whether the
Chief Adjudicator erred in law in making use of articles 26 and
27 of the collective agreement in construing the term "sched-
uled in advance" found in clause 30.01 of the agreement.
The Board found':
... the Board is of the opinion that the adjudicator did not err
in law when he found the following:
(a) the collective agreement makes no provision for "pre-
scheduled overtime"; the fact that the note passed to Mr.
Tucker is headed "scheduled overtime" is not significant,
(b) Mr. Tucker had been recalled to work,
(c) the recall had not been scheduled in advance within the
meaning of the word "schedule" in the collective agreement.
(See paragraph 21 above.)
(d) Mr. Tucker was therefore "entitled to compensation
under article 30.01(a), being compensation equivalent to four
hours' pay at his straight-time rate."
3 There was a dissenting opinion.
I would note that paragraph 21 of the majority's
reasons for decision reads in part:
From this study, the chief adjudicator concludes that the word
"schedule" as used in the collective agreement refers to an
arrangement of general application and that "there is nothing
to suggest an ad hoc or `one-shot' arrangement for one
employee with respect to working overtime, with or without
notice."
This finding by the chief adjudicator expresses the same con
clusion that was reached by adjudicator Perry Meyer in the A.
Yvon Paul case (166-2-406) where it is shown that a pattern of
work repeated over a period of time, in this case, month by
month, constitutes a schedule. In this kind of arrangement, it is
possible that a recall be scheduled in advance when an
employee is designated as the person who may be called to
work overtime during certain specified week-ends. In the case
at hand, if the employer had posted a schedule mentioning, for
example, that the aggrieved employee could be required to
report for work every Wednesday night (or alternate Wednes-
day night) outside his regular hours of work to meet a certain
flight, this would have constituted a recall scheduled in advance
as implied in article 30.01 of the collective agreement. But such
is not the case.
The applicant did not dispute that the respond
ent had been recalled. The applicant's critical sub
mission, as I understood it, was that the disputed
words in clause 30.01 were capable of applying to
the extra work done by Mr. Tucker in response to
the written notice given to him; that a recall
"scheduled in advance" could include a recall, by
way of a written notice given in advance, of an
employee to do a particular job.
That in the circumstances of this case there was
a recall seems quite clear even though Mr. Tucker
was given the recall notice by means of a note
attached to his attendance sheet and thus appears
to have known of the recall before he left his place
of work. I read Article 30 as applying to a "recall"
in the sense of a requirement to return to do a job
outside an employee's regularly scheduled hours of
work, provided that the job is not done during time
immediately contiguous to his regular hours: a
"call-back" would not include overtime done by an
employee who stays on after his regular shift or
returns before and stays on into his next shift. The
purpose of clause 30.01 would seem to have been
(subject to the exception in dispute) to assure an
employee who was required to make an extra trip
to his place of work compensation in an amount at
least equal to four hours' straight time. This would
constitute at least a minimum payment designed to
compensate the employee not only for work actual-
ly done, but as well for the personal incon
venience resulting from the disturbance of his
otherwise free time. Clause 30.02 made provision
to cover extra travelling expenses of such a trip. A
purpose of the guarantee might also have been to
discourage recalls for brief jobs'.
Nonetheless, despite the underlying purposes of
the guarantee, the parties did provide for an excep
tion to it: it was not to apply if the recall were
"scheduled in advance".
The meaning of this qualification is not immedi
ately obvious. I can quite understand why the
Adjudicator and the Board searched through other
clauses of the agreement for assistance in inter
preting clause 30.01, and there was, of course, no
reason in law why they should not have done so.
Quite frankly, however, I do not find a close
textual analysis of such terms as "schedule",
"notice", and "scheduled", as used within the con
text of other clauses serving quite different pur
poses, particularly helpful. In fact, I find that this
sort of analysis leads to, what appears to me to be,
a rather strained reading of the disputed words.
To me the essential reason for excepting from
the guarantee recalls "scheduled in advance"
appears to have been to distinguish between recalls
which could reasonably be foreseen and of which
advance notice could and should be given, and
those which would not be reasonably foreseeable
and thus of which notice could not be given. A
justification for the distinction might be found in
the fact that a disturbance in an employee's free
time might be less disruptive if it were foreseen
and could be planned for by him. The term "sched-
uled in advance", as it is used in clause 30.01,
imports the sense of reasonable advance notice; an
employee's recall would be "scheduled in advance"
if he had notice of it far enough ahead to make
reasonable rearrangements in his own plans, so
that he could say of it, quite naturally, that he was
scheduled to work at the time indicated, just as he
4 I have found helpful the consideration given to the signifi
cance of a "call-back" clause in the majority reasons of the
board of arbitration in Re International Molders & Allied
Workers Union, Local 49 v. Webster Manufacturing (London)
Ltd. (1972) 23 L.A.C. 37.
might say that he was "scheduled" to go to his
doctor for a check-up if he had an appointment to
do so.
On the other hand, a recall occasioned by an
emergency or a recall occasioned by an occur
rence, falling short of an emergency, of which
reasonable advance notice could not be, or was not
in fact, given would be within the protection of the
guarantee. It would not be a "recall scheduled in
advance". I see no need, nor do I find it very
helpful, with respect, in order to give effective
meaning to the disputed words, to make a distinc
tion between a schedule, formal and general in
character, applying to more than one employee or
to more than one assignment, and an ordinary
notice, provided that the employee affected was
given reasonable advance warning of the extra
work. Even a recall included in a formal docu
ment, general in character, might occasion person
al inconvenience and extra expense to those affect
ed by it; but the Board's reading of the words in
issue would itself have the effect of excluding such
a recall, despite its inconvenience and possible
expense, from the guarantee.
In my view, the Public Service Staff Relations
Board erred in law to the extent the Board found
that the disputed words in clause 30.01 necessarily
referred to a schedule, formal and general in char
acter, and thus that the words could refer only to a
recall under such a schedule. I would, therefore,
grant the application and set aside the decision of
the Board. I would refer the matter back to the
Board with a direction that it should answer the
question of law referred to it by holding that the
Adjudicator erred in law in deciding that Mr.
Tucker's claim fell within the ambit of clause
30.01 of the collective agreement to the extent that
the Adjudicator's decision involved construing the
disputed words as being applicable only to a recall
made by way of a schedule of some generality and
formality, and thus as not being capable of apply
ing to Mr. Tucker's recall.
I would indicate, however, that whether or not a
recall is "scheduled in advance" must generally be
a question, not of law, but of fact. In this case, for
example, once the mistake of law is corrected, it
must be for the Adjudicator, and not for the
Board, to decide whether Mr. Tucker's recall had
in truth been "scheduled in advance". I would
therefore direct the Board to refer the grievance
back to adjudication so that the Adjudicator may
decide the grievance on the basis that Mr. Tuck
er's recall was susceptible of falling within the
disputed words of clause 30.01 and thus could be
excluded from the guarantee afforded by the
clause 5 .
Before concluding, however, I would observe
that counsel for the respondent relied on a series of
judicial decisions in which it has been held that,
where the decision of an arbitrator under a collec
tive agreement, based on an interpretation of the
agreement, is subject to judicial review, the deci
sion will not be disturbed for error of law if the
decision was reasonably open to the arbitrator 6 .
He submitted that these decisions are applicable in
the present case. I would note that counsel for the
applicant did not, as I understood him, disagree
that the decisions would apply if we were to find
that the Board's interpretation was reasonably
open to it. This Court made it clear, however, that,
having in mind our duties under section 28 of the
Federal Court Act, we could not accept a conces
sion on this point as being in any way decisive.
Though I, with respect, disagree for the reasons
I have given with the Board's interpretation of the
disputed words in clause 30.01 of the collective
agreement, I did say earlier in these reasons that
the meaning of these words was not obvious. It
does not, however, follow that the decisions relied
on by the respondent are applicable. It would not,
indeed, follow that they would be applicable even
if it could be said of the Board's interpretation
that, though erroneous, it was not unreasonable.
So far as this Court is concerned, the present case
5 See Attorney General of Canada v. The Public Service
Staff Relations Board [1976] 2 F.C. 163, at pages 167 and
168.
6 See, for example, Re Canadian Westinghouse Co. Ltd. v.
Local 164 Draftsmen's Association of Ontario (1962) 30
D.L.R. (2d) 673 (Ont. C.A.); Regina v. Weatherill, Ex parte
Falconbridge Nickel Mines Ltd. (1969) 10 D.L.R. (3d) 533
(Ont. C.A.); and Re United Glass and Ceramic Workers of
North America (AFL-CIO-CLC), Local 246 v. Dominion
Glass Co. Ltd. (1974) 40 D.L.R. (3d) 496 (Ont. C.A.). And see
also International Association of Machinists and Aerospace
Workers, Flin Flon Lodge No. 1848 v. Hudson Bay Mining
and Smelting Co., Limited [1968] S.C.R. 113.
does not involve the review of a decision of an
arbitrator or an adjudicator 7 . It involves the
review of a decision of the Public Service Staff
Relations Board on a question of law referred to it.
It was for the Board to decide whether the inter
pretation given to the collective agreement by the
Adjudicator was correct, not whether it was one
that was reasonably open to him. And it is the
function of this Court, in reviewing the decision of
the Board under section 28 of the Federal Court
Act, to determine whether the Board's decision
was correct in law.
* * *
PRATTE J. concurred.
* * *
URIE J. concurred.
'I do not, accordingly, find it necessary to decide whether
the decisions relied on would be applicable if such a review
were involved.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.