Burden et al. v. Canada (Attorney General), 2011 FC 251

• Judge: de Montigny, J.
• Court: Federal Court (Canada)
• Case Date: December 07, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 251;(2011), 385 F.T.R. 139 (FC)

Burden v. Can. (A.G.) (2011), 385 F.T.R. 139 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. MR.017

Scott Burden and Martin Cyr (applicants) v. Attorney General of Canada (respondent)

(T-737-10; 2011 FC 251)

Indexed As: Burden et al. v. Canada (Attorney General)

Federal Court

de Montigny, J.

March 2, 2011.

Summary:

The applicants were indeterminate seasonal employees of the Parks Canada Agency (PCA) who worked in remote areas. The applicants filed grievances alleging that the PCA, by refusing to reimburse medical and dental related travel expenses incurred while they were on seasonal layoff, failed to correctly apply the terms of the Isolated Post Policy (IPP) which was incorporated into the employees' collective agreement. The grievances were referred to adjudication pursuant to s. 92 of the Public Service Staff Relations Act. The Adjudicator of the Public Service Labour Relations Board determined that the policy benefits in dispute were available to the applicants only during the period of seasonal employment, with one exception that did not apply to the applicants. The applicants applied for judicial review.

The Federal Court allowed the application. The court quashed the Adjudicator's decision and remitted the matter to another Adjudicator for determination in accordance with the court's reasons.

Labour Law - Topic 9354

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators, grievance appeal boards or officers - Unreasonable decisions - [See Labour Law - Topic 9576.1 ].

Labour Law - Topic 9576.1

Public service labour relations - Collective agreement - Pay, severance pay and expense allowances - Mileage or travel pay - The applicants were indeterminate seasonal employees of the Parks Canada Agency (PCA) who worked in remote areas - The applicants filed grievances alleging that the PCA, by refusing to reimburse non-elective medical and dental related travel expenses incurred while they were on seasonal layoff, failed to correctly apply the terms of the Isolated Post Policy (IPP) which was incorporated into the collective agreement - The Adjudicator determined that the policy benefits in dispute were available to the applicants only during the period of seasonal employment, with one exception that did not apply to the applicants - The applicants applied for judicial review - The Federal Court allowed the application - The Adjudicator erred in placing too much reliance on s. 2.7.3 of the IPP - Section 2.7, which dealt with the treatment of part-time and seasonal employees, was meant to apply to vacation benefits specifically, and not to all of the benefits set out in Part II, including the s. 2.1 benefits at issue here - The Adjudicator also failed to consider the "Application" section of the IPP, which, according to the applicants, established them as employees under the policy who were generally entitled to the benefits that the policy offered - The Adjudicator's failure to discuss the very section (s. 2.1) on which the applicants based their case was also unreasonable - In the absence of any explanation as to why the Application section of the IPP and its s. 2.1 had to be interpreted to exclude seasonal employees from the benefit of reimbursement of transportation and travelling expenses incurred for non-elective medical or dental treatment, it could not be said that the Adjudicator's decision was reasonable.

Cases Noticed:

Public Service Alliance of Canada v. Canadian Food Inspection Agency (2005), 343 N.R. 334; 2005 FCA 366, refd to. [para. 14].

Currie et al. v. Canada Customs and Revenue Agency, [2005] F.T.R. Uned. A08; 2005 FC 733, revd. [2007] 1 F.C.R. 471; 350 N.R. 252; 2006 FCA 194, refd to. [para. 14].

Nitschmann et al. v. Canada (Treasury Board), [2008] F.T.R. Uned. 858; 2008 FC 1194, varied (2009), 394 N.R. 126; 2009 FCA 263, refd to. [para. 14].

Chan et al. v. Canada (Attorney General) (2010), 372 F.T.R. 230; 2010 FC 708, refd to. [para. 14].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 14].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 19 to 24 [para. 15].

Counsel:

David Yazbeck, for the applicants;

Anne-Marie Duquette, for the respondent;

Richard Fader, for the respondent.

Solicitors of Record:

Raven, Cameron, Ballantyne & Yazbeck, LLP/s.r.l., Ottawa, Ontario, for the applicants;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on December 7, 2010, at Ottawa, Ontario, before de Montigny, J., of the Federal Court, who delivered the following decision on March 2, 2011.