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COLLECTIVE AGREEMENTS - Provisions - Grievances - Public service

Thursday, September 12, 2019 @ 6:28 AM  


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Application by union members for judicial review of an arbitrator’s decision finding that she lacked jurisdiction to determine the applicants’ grievances. The applicants were employed by the Canada Revenue Agency as large-file appeals officers. The applicants were all members of the Professional Institute of the Public Service of Canada. A collective agreement existed between the Canada Revenue Agency and the Institute. The applicants filed grievances alleging that their employer violated a clause of the collective agreement requiring the payment of acting pay to an employee when the employee was required by the employer to substantially perform the duties of a higher classification level on an acting basis for three consecutive working days. The applicants alleged that for a lengthy period they were performing such duties. The adjudicator found that she was without jurisdiction to consider the grievances because the issues raised were issues of classification, not issues of acting pay. The applicants represented themselves on the application for judicial review. The Attorney General argued that the applicants lacked standing to pursue their application because the applicants were not persons directly affected by the decision of the adjudicator.

HELD: Application dismissed. The applicants had standing to commence and pursue this application. Adjudication rights in the federal public sector arose directly from the legislation and not the collective agreement. The applicants were not exercising adjudication rights under the collective agreement between the Institute and the Canada Revenue Agency. The legislative scheme, at least in respect of adjudication rights for individual grievances, ousted the requirement of contractual privity relied on by the Attorney General. The applicants did not demonstrate that the adjudicator’s finding that the applicants’ concerns related to the entirety of their duties since their respective appointments to the large-file appeals officer positions and that their duties were consistent over time which suggested that the applicants’ concern was that their work had been chronically undervalued, was unreasonable. The adjudicator further considered that the applicants’ grievances were in part based on a comparison with the work of their counterparts in another appeals office. The adjudicator then looked at the essence of the applicants’ complaint and found that the issues they raised related to classification. This was a heavily factually-suffused determination, based on the adjudicator’s appreciation of the evidence that was entitled to deference. The adjudicator did not breach the applicants’ right to procedural fairness by failing to admit some of their evidence. There was no basis to find that documents were improperly excluded in a fashion that demonstrated any breach of natural justice or any reasonable apprehension of bias. The adjudicator’s reliance upon evidence adduced by representatives of the employer could not support the applicants’ allegation of bias.

Insch v. Canada (Attorney General), [2019] F.C.J. No. 865, Federal Court of Appeal, E.R. Dawson and J. Gauthier JJ.A. and M. Rivoalen A.C.J., July 25, 2019. Digest No. TLD-September92019012