Canada (Attorney General) v. Burden et al., 2012 FC 383

• Judge: Phelan, J.
• Court: Federal Court (Canada)
• Case Date: March 19, 2012
• Jurisdiction: Canada (Federal)
• Citations: 2012 FC 383;(2012), 407 F.T.R. 151 (FC)

Can. (A.G.) v. Burden (2012), 407 F.T.R. 151 (FC)

MLB headnote and full text

Temp. Cite: [2012] F.T.R. TBEd. AP.067

Attorney General of Canada (applicant) v. Scott Burden and Martin Cyr (respondents)

(T-1292-11; 2012 FC 383)

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

Federal Court

Phelan, J.

April 2, 2012.

Summary:

Burden and Cyr were indeterminate seasonal workers of Parks Canada Agency (PCA) who worked in remote areas of Canada during the summer season. The PCA's Isolated Post Policy (IPP) was deemed to be part of the collective agreement. Burden was a seasonal employee at L'Anse Aux Meadows National Historical Site. His daughter became acutely ill in July 2003, but the earliest date she could obtain an appointment with a specialist in St. John's was two weeks after Burden's seasonal employment ended for the year. Cyr was a seasonal employee at Mingan Archipelago National Park Reserve. He had to travel with his daughter to Sept-Îles for an orthodontist's appointment approximately seven weeks after his seasonal lay-off began. Burden and Cyr filed grievances after their claims for travel expenses were denied. The parties disagreed as to the application of s. 2.1 of the IPP, which provided for the reimbursement of travel and transportation expenses for non-elective medical or dental care for employees assigned to isolated posts. An adjudicator of the Public Service Labour Relations Board concluded that the benefits claimed were only available during seasonal employment and not during the off-season, with the only exception being when, for operational requirements, the employer could not grant an employee's request during his seasonal employment. Burden and Cyr applied for judicial review.

The Federal Court (de Montigny, J.), in a decision reported at (2011), 385 F.T.R. 139, found the adjudicator's decision to be unreasonable. The court allowed the application and remitted the matter to another adjudicator for determination in accordance with the court's reasons. A second adjudicator upheld the grievance. The Attorney General of Canada applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 8937.1

Boards and tribunals - Powers - On remittal by court - [See Labour Law - Topic 9576.1 ].

Labour Law - Topic 9513

Public service labour relations - Collective agreement - General and definitions - Interpretation - General - [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 - Burden and Cyr were indeterminate seasonal workers of Parks Canada Agency (PCA) who worked in remote areas during the summer season - The PCA's Isolated Post Policy (IPP) was deemed to be part of the collective agreement - Burden was a seasonal employee at L'Anse Aux Meadows National Historical Site - His daughter became acutely ill in July 2003, but the earliest date she could obtain an appointment with a specialist in St. John's was two weeks after Burden's seasonal employment ended for the year - Cyr was a seasonal employee at Mingan Archipelago National Park Reserve - He had to travel with his daughter to Sept-Îles for an orthodontist's appointment approximately seven weeks after his seasonal lay-off began - Burden and Cyr filed grievances after their claims for travel expenses were denied - The parties disagreed as to the application of s. 2.1 of the IPP, which provided for the reimbursement of travel and transportation expenses for non-elective medical or dental care for employees assigned to isolated posts - An adjudicator of the Public Service Labour Relations Board concluded that the benefits claimed were only available during seasonal employment and not during the off-season, with the only exception being when, for operational requirements, the employer could not grant an employee's request during his seasonal employment - Burden and Cyr applied for judicial review - de Montigny, J., found the adjudicator's decision to be unreasonable, allowed the application and remitted the matter to another adjudicator for determination in accordance with de Montigny, J.'s reasons - A second adjudicator upheld the grievance - The Attorney General of Canada applied for judicial review - The Federal Court dismissed the application - The second adjudicator did what Justice de Montigny directed in not relying on s. 2.7.3 of the IPP alone as justification for dismissing the grievances - The adjudicator's conclusion was that seasonal employees were "employees" under the IPP even when seasonally laid off - His conclusion was based on such factors as apparent intent of the IPP and the absence of an exclusion for seasonal employees, the "Application" section outlining the scope of that policy and the definition of "employee" in the policy - The adjudicator applied the modern approach to the interpretation of the IPP in a manner consistent with Justice de Montigny's comments - The applicant had not identified any applicable exclusion of seasonal employees nor had it pointed to anything unreasonable in the adjudicator's reasoning.

Cases Noticed:

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. 20].

Commissioner of Competition v. Superior Propane Inc. et al. (2003), 300 N.R. 104; 2003 FCA 53, refd to. [para. 21].

Shuchuk v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2012), 522 A.R. 336; 544 W.A.C. 336, refd to. [para. 23].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 34].

Counsel:

Anne-Marie Duquette, for the applicant;

David Yazbeck, for the respondents.

Solicitors of Record:

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

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

This application was heard on March 19, 2012, at Ottawa, Ontario, before Phelan, J., of the Federal Court, who delivered the following decision on April 2, 2012.