A-157-81
Attorney General of Canada (Applicant)
v.
David K. Anderson, Eric S. Boyard, Larry V.
Deveau, and D. Gary O'Keefe (Respondents)
and
Public Service Staff Relations Board (Tribunal)
Court of Appeal, Pratte and Ryan JJ. and Kerr
D.J.—Ottawa, September 17 and 18, 1981.
Judicial review — Public Service — Application to set aside
Adjudicator's decision to allow respondents' grievances —
Employer unilaterally fixed the dates when the respondents
were to use their days of leave which must be granted in lieu of
holidays because the employees refused to accede to a request
to indicate when, prior to the end of the fiscal year, they
desired to use the "lieu days" — Collective agreement pro
vides that an employee who has worked on a holiday is given
the right to "be granted a day of leave with pay at a later
date" — Agreement also provides that unused "lieu days"
shall be carried over into the following fiscal year at the
employee's option — Whether the Adjudicator erred in hold
ing that the employer did not have the right to unilaterally
determine the dates before the end of the year when the
respondents had to use their "lieu days", in view of the
respondents' refusal to indicate their wishes in that respect —
Application allowed — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
David P. Olsen for applicant.
Catherine H. MacLean for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Nelligan /Power, Ottawa, for respondents.
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: This section 28 application is direct
ed against the decision of an Adjudicator under
the Public Service Staff Relations Act, R.S.C.
1970, c. P-35, allowing grievances presented by the
respondents.
The respondents were employed as air traffic
controllers at St. John's, Newfoundland. They
were "operating employees" within the meaning
given to that term by the collective agreement
between the Treasury Board and the Canadian Air
Traffic Control Association (Code 402/79) expir
ing on December 31, 1980. By their grievances
they complained of the interpretation given by
their employer to articles 16.04 and 16.05 of that
collective agreement.
Those two provisions regulate the rights of oper
ating employees who work on a holiday. Article
16.04 provides that those employees must be paid
at one and a half (1 1 / 2 ) times their normal hourly
rate for all hours worked by them on the holiday
and shall, in addition, "be granted a day of leave
with pay at a later date in lieu of the holiday."
Those days of leave with pay which must be
granted in lieu of holidays are referred to as "lieu
days" in article 16.05:
16.05 For operating employees,
(a) The designated holidays in a fiscal year shall be
anticipated to the end of the year and "lieu day" credits
established.
(b) For the purpose of paragraph (a) above only, in those
years wherein Good Friday and/or Easter Monday fall in the
month of March they shall be deemed to fall in the month of
April, except in any case where the application of this
paragraph would cause an employee to lose credit for the
holiday(s).
(c) Lieu days may be granted as an extension to vacation
leave or as occasional days and shall be charged against the
lieu day credits on the basis of one shift for one day.
(d) Consistent with operational requirement of the service
and subject to adequate notice, the Employer shall make
every reasonable effort to grant lieu days at times desired by
the employee.
(e) Where in any fiscal year an employee has not been
granted all of the lieu days credited to him, the unused
portion of his lieu days shall be carried over into the follow
ing fiscal year.
At the employee's option any lieu days which cannot be
liquidated by the end of the fiscal year will be paid off at the
employee's daily rate of pay in effect at that time.
(f) Any leave granted under the provisions of this clause in
advance of holidays occurring after the date of an employee's
separation or commencement of retiring leave or after he
becomes subject to clause 13.01 shall be subject to recovery
of pay.
In September and December 1979, the respond
ents were requested by their employer to indicate
at what time, before the end of the fiscal year
expiring on March 31, they desired to use the lieu
days that were accumulated to their credit. They
refused to accede to that request. They did not
wish to use their lieu days before the end of the
year; they wanted either to use them in a subse
quent year or to exchange them for cash at the end
of the year. The employer thereupon unilaterally
fixed the dates when the respondents were to use
their lieu days.
The sole issue raised by the respondents' griev
ances was whether the employer had the right to
unilaterally determine the dates before the end of
the year when the respondents had to use their lieu
days in view of the respondents' refusal to indicate
their wishes in that respect. The Adjudicator ruled
in favour of the respondents and held that the
employer did not have that right. In order to reach
that conclusion, he had to distinguish this case
from previous cases where other Adjudicators,
and, in one instance, the Board itself, had given a
different interpretation to provisions similar to
articles 16.04 and 16.05.' For the Adjudicator,
those two articles give the employees the right to
choose, first, whether they will use their lieu days
before the end of the fiscal year and, second,
whether, if they do not use them within that year,
they will use them in a subsequent year or trade
them for cash. The Adjudicator reached that con
clusion for two main reasons. First, he considered
that the use of the verb "to grant" in articles 16.04
and 16.05 necessarily implied that the lieu days
had to be granted at the request of the employees.
Second, he was of the opinion that if the very
special nature of lieu days was understood and
taken into account, the provisions contained in
paragraph 16.05(e) indicated clearly that the
employees were given, first, the option to use or
not to use their lieu days in the year when they had
been earned and, second, the option either to be
paid in cash for the lieu days at their credit at the
end of the year or use them in a subsequent year.
' Webb v. Treasury Board (Chief Adjudicator, Edward B.
Jolliffe, Q.C.); Kenna v. Treasury Board (Chief Adjudicator,
Edward B. Jolliffe, Q.C.); Low & Duggan v. Treasury Board (a
decision of the Board).
This decision is, in my view, based on a misin
terpretation of the collective agreement. Under
article 16.04, the employee who has worked on a
holiday is given, the right to "be granted a day of
leave with pay at a later date". In my opinion,
contrary to what was held by the Adjudicator, the
word "granted", in that provision, does not imply
any request by the employee so that, if that provi
sion stood alone, I would have no hesitation to say
that the employer would always have the right to
unilaterally decide when lieu days will be granted.
Is this right modified or limited by other provisions
of the agreement? The only applicable provision is
article 16.05. Paragraphs (a), (b) and (e) of that
article make clear, in my view, that the computa
tion and liquidation of lieu days is an annual affair
and that, normally, lieu days are used in the year
when they have been earned. The sole limitation
that article 16.05 places upon the right of the
employer to determine when lieu days will be used
is contained in paragraph (d) which obliges the
employer to make every reasonable effort to grant
lieu days "at times desired by the employee." Does
that paragraph impose on the employer the duty to
make every reasonable effort to accede to an
employee's request that his lieu days be carried
over to a subsequent year? In my view, it does not
because it merely refers to the granting of lieu
days on precise dates requested by employees
within the current fiscal year. I would add that in
so far as article 16.05 gives employees the right to
exchange lieu days for cash, this right is clearly
limited to lieu days "which cannot be liquidated by
the end of the fiscal year". It would be an abuse of
language, in my view, to say that lieu days cannot
be liquidated for the sole reason that the employee
would prefer not to use them.
For these reasons, I would allow the application,
set aside the decision of the Adjudicator and refer
the matter back to him for decision on the basis
that, under articles 16.04 and 16.05 of the collec
tive agreement, when employees refuse to indicate
when, during the current fiscal year, they wish to
use their lieu days, the employer has the right to
unilaterally determine when those lieu days shall
be used.
* * *
RYAN J. concurred.
* *
KERR D.J. concurred.
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.