S. Thomas, D. Frost and D. Carlson (Applicants)
v.
Attorney General of Canada (Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and
Smith D.J.—Toronto, February 22, 23 and 24;
Ottawa, February 24, 1972.
Public Service—Judicial review—Public Service Staff
Relations Board, jurisdiction of—Collective agreement by
postal employees and government—Assignment of postal
routes to letter carriers—Right to employ casual help on
unmanned routes—Interpretation of contract—Decision of
adjudicator reversed by Board—Review by Federal Court—
Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s.
23—Federal Court Act, s. 28.
A collective agreement between a union of postal
employees and the Government of Canada made pursuant
to the Public Service Staff Relations Act provided, inter alia,
for the assignment of letter carriers' routes to supervisory
letter carriers in the formers' absence, but made no provi
sion for an insufficiency of supervisory letter carriers.
Three letter carriers presented grievances contending that
the employer violated the agreement by using casual
employees on letter carrier routes temporarily unmanned
because of the illness of the regular carriers, instead of
using other letter carriers at overtime after performance of
their day's work on other routes. The grievances were
upheld by the adjudicator, but rejected by the Public Ser
vice Staff Relations Board, to whom the employer referred
the matter under section 23 of the Act, which provides for a
reference to the Board of "any question of law or jurisdic
tion" that "arises in connection with a matter that has been
referred to ... an adjudicator pursuant to this Act". The
letter carriers applied under section 28 of the Federal Court
Act to set aside the Board's decision.
Held, the application must be dismissed. Nothing in the
collective agreement gave a postal employee a right to have
some part of the postal service work delayed so that he
could be given an opportunity of doing it after completing
his own work.
Held also, the Public Service Staff Relations Board has
unqualified jurisdiction under section 23 of the Public Ser
vice Staff Relations Act to determine any question of law,
which includes the interpretation of a contract, that arises in
connection with a matter referred to an adjudicator under
the Act.
APPLICATION for judicial review of a deci
sion of the Public Service Staff Relations
Board.
W. Z. Estey, Q.C. and M. L. Levinson for
applicants.
C. R. O. Munro, Q.C. and P. Y. Delage for
respondent.
JACKETT C.J. (orally)—This is an application
to the Federal Court of Appeal under section 28
of the Federal Court Act to review and set aside
a decision of the Public Service Staff Relations
Board dated January 7, 1972, setting aside a
decision of Adjudicator H. Arthurs dated Octo-
ber 9, 1971, on grievances presented by the
applicants.
The decisions in question were made under
the Public Service Staff Relations Act, which
was first enacted as chapter 72 of the Statutes
of Canada of 1966-67 and, since July 15, 1971,
is chapter P-35 of the Revised Statutes of 1970.
The Public Service Staff Relations Act pro
vides for collective bargaining between
employees in the Public Service of Canada and
the Government of Canada as tl.eir employer.
The first 89 sections of the Act are largely
concerned with certain basic rights and prohibi
tions and with establishing machinery for
achieving collective agreements or arbitral
awards concerning conditions of employment
and related matters. In this legislative scheme, a
central position is occupied by a board known
as the Public Service Staff Relations Board,
which Board is charged with the general
administration of the Act as well as various
important, specific duties. In addition, there is a
tribunal called the Public Service Arbitration
Tribunal which functions in certain cases where
the statute contemplates arbitration when col
lective bargaining has not resulted in a collec
tive agreement. Part IV of the Public Service
Staff Relations Act, which is entitled "Griev-
ances", provides a procedure for the presenta
tion of a "grievance" where an employee feels
himself aggrieved by, among other things, "the
interpretation or application in respect of him of
... a provision of a collective agreement ...".
(Section 90(1)). In addition, where a grievance
has not been dealt with to the satisfaction of the
employee who presented it, Part IV authorizes
him to "refer the grievance to adjudication".
(Section 91(1)). Such a grievance is referred to
a board of adjudication or to an "Adjudicator".
(Section 94).
A collective agreement was entered into on
October 16, 1970 between The Council of
Postal Unions and the Government of Canada
concerning the postal employees covered by a
bargaining certificate. (Articles 3.01 and 3.02).
By its terms, this collective agreement applies
to letter carriers as well as certain other postal
employees. The agreement provides in some
detail for the grievance procedure contemplated
by the statute and provides for a grievance
being referred to "adjudication" (Article 9.25),
although it does not provide any machinery for
such an adjudication. The agreement also con
tains detailed provisions concerning many sub
jects, including seniority, assignment of work,
hours of work, overtime, holidays, vacations.
Before referring to the "grievances" of the
applicants, by which the proceedings here in
question were commenced, it is advisable to
refer to certain of the provisions of the collec
tive agreement that are applicable to letter carri
ers. Some acquaintanceship with such provi
sions is necessary in order to have any
appreciation of what the "grievances" actually
claim the applicants are entitled to.
The first part of Article 10 of the collective
agreement deals with seniority among letter car
riers. Here it becomes apparent that there are
two groups of letter carriers, viz, letter carriers
so-called, and a more senior group called "Su-
pervisory (Relief) Letter Carriers" who are paid
at higher rates and who have "vacation relief,
or sick relief duties". Article 10 provides (10.01
and 10.02) rules for determining seniority
within each group according to dates of
appointment and says (10.03) that seniority
shall be used "to accommodate employee pref
erence" as follows:
(a) selection of assignments in accordance
with articles 13, 14 and 15,
(b) choice of vacation periods in accordance
with article 21, clauses 21.14 and 21.15, and
(c) selection of replacements for letter carri
ers granted leave of absence for 15 days or
more.
Articles 13, 14 and 15 contain detailed rules for
assignment of "walks" to ordinary letter carri
ers and "blocks of walks" to Supervisory
(Relief) Letter Carriers in accordance with seni
ority. Article 21 (21.14 and 21.15) provides
rules for allocating vacation leave on the basis
of seniority. Article 10 itself (10.04) contains
the rules for selection of "replacements" for
letter carriers who have been granted leaves of
absence. The first such rule is that, for "ab-
sences" of less than 15 days, the employer
"shall assign" available Supervisory (Relief)
Letter Carriers. The second is that for "author-
ized absences" of 15 days to 2 months and 15
days (other than vacations), Supervisory
(Relief) Letter Carriers who have not selected
assignment to vacation leave "shall be offered"
the assignment on the basis of seniority. The
third is that, for "authorized absences" in
excess of two months and 15 days, the assign
ments "shall be made" first to "unassigned
letter carriers in order of seniority", second to
"available Supervisory (Relief) Letter Carri
ers," and thirdly "by other means". The fourth
and final rule on this subject of "replacements"
is that, for vacation leaves of 15 days or more,
Supervisory (Relief) Letter Carriers performing
vacation relief duties "shall select assignments"
on the basis of seniority.
[At this point, it may be helpful to attempt to
summarize the situation dealt with by the provi
sions to which I have just referred as it appears
to me. The work of mail delivery is organized
into "walks", each of which is assigned, pre
sumably on an indefinite basis, to a letter carri
er. Vacation and sick relief work is performed
by Supervisory (Relief) Letter Carriers and for
this purpose the "walks" are grouped into
"blocks of walks", each of which is assigned to
a Supervisory (Relief) Letter Carrier. Normally,
therefore, every walk being assigned and every
block of walks being assigned, there will be a
letter carrier at all times to carry the mail on
every walk, being the letter carrier to whom it
was assigned or a Supervisory (Relief) Letter
Carrier in whose block of walks it lies, depend
ing on whether that letter carrier is on duty or is
on vacation or sick leave. However, there can
be circumstances for which this fundamental
arrangement is not adequate and so Article 10
(10.04) contains special rules for extraordinary
circumstances. Generally speaking, the Article
10 rules seem to require that
(a) for absences of any kind that are less than
15 days,
(b) for all vacation leave absences, and
(c) for any authorized absence up to two
months and 15 days,
replacements shall be supplied from Superviso
ry (Relief) Letter Carriers and those rules make
no provision for what is to be done about
replacements when there are not sufficient
available Supervisory (Relief) Letter Carriers to
cover all requirements. On the other hand,
where there are authorized absences other than
for vacation leave of more than two months and
15 days, assignments must be made in the first
instance to "unassigned letter carriers" in order
of seniority and then to "available Supervisory
(Relief) Letter Carriers" and, if those services
are exhausted, assignments are to be made "by
other means".]
Following the provisions dealing specifically
with the allocation of work in accordance with
seniority, we find an Article dealing with
normal hours of work (Article 16) and an article
dealing with premium payments for overtime
(Article 17). The fundamental rule is that the
normal work week is 5 days per week of 8
hours per day (16.01(a)) and that "overtime"
shall be paid at the rate of time and one-half for
all hours worked in excess of 8 hours per day.
When "overtime" is required because there is
more work to be done than can be done in
normal hours, it is governed, in the case of a
letter carrier route (walk), by Article 17.06,
which says that "Insofar as practicable, over-
time on a letter carrier route will be performed
by the Letter Carrier or Supervisory (Relief)
Letter Carrier assigned to that particular route.
Article 17.07 provides a rule, which is not appli
cable to letter carriers, "For the purpose of
equalizing opportunity to perform required
overtime work". Briefly, this is a requirement
for offering the opportunity to perform over
time work "Where less than a full complement
of employees is required to work overtime"
according to a rule that is designed to make sure
that there is equal opportunity to take it. Finally
we come to the particular article (Article 19)
that gives rise to the controversy here. Article
19 deals with three things. First, it provides that
an employee shall be paid time and a half for all
hours worked on his day of rest. Second, it
provides, by Article 19.02(a), that an employee
called back to work, after having completed his
scheduled hours of work for that day and
having left the employer's premises, will receive
a minimum of 3 hours of "work or pay in lieu of
work" at time and a half. Finally, Article 19 has
a special rule regarding "Unmanned letter carri
er routes", which is broken into two parts. The
first part (Article 19.03(a)) deals with the period
until November 29, 1970, and says that "Where
a letter carrier or Supervisory (Relief) Letter
Carrier performs work on another route after
completion of duties on his assigned route", the
minimum guarantee provided in 19.02(a) will
apply (i.e., 3 hours of "work or pay in lieu of
work" at time and a half). The second part deals
with November 30, 1970 and later. It provides
(a) that coverage of unmanned letter carrier
routes will be subject to the principal overtime
provision (17.01) which provides for time and a
half for hours worked in excess of 8 hours per
day, and (b) that "Insofar as possible, where
letter carriers or Supervisory (Relief) Letter
Carriers are required to perform overtime work
to cover unmanned letter carrier routes, such
overtime will be allocated in accordance with
the principle of equal opportunity as provided
in clause 17.07".
I come now to the grievances of the
applicants.
The three applicants all prepared their origi
nal grievances on February 26, 1971. Mr. Tho-
mas's statement of his grievance reads as
follows:
I grieve that the employer violates Articles 19:03 b & 17
and other relevant articles of the contract, When on 22, 23,
24, 25 & 26/2/71 he used casual help to deliver Unmanned
Walks and did not follow the overtime list as called for in
the contract to cover Unmanned Walks.
I request that I be paid as the Senior Qualified Volunteer
who was willing to work overtime on the Unmanned Walk
on the day in question for all hours worked by the casual
employee.
Mr. Frost's statement of his grievance and Mr.
Carlson's statement of his grievance were iden
tical except for changes in particulars of time.
The employer's decision on March 3, 1971,
was the same in each case. It reads:
There is no provision in the Collective Agreement that
provides for the delay of delivery of mail in order that
employees be afforded the opportunity of working
overtime.
Your grievance is therefore denied.
On April 1, 1971, there was a decision in
each case at the second level. It reads:
Representation has been made on your behalf by the Letter
Carriers Union of Canada.
Departmental policy was followed in the employment of
casual help to cover unmanned Letter Carrier walks. There
is no provision in the Collective Agreement which would
require that the Postal Service be delayed in order to
provide overtime work for employees who have already
performed a day's work. There was no violation of the
current C.P.U. Agreement.
Your grievance is denied.
A decision at the third stage was given in
each case on April 26, 1971, reading as follows:
Your grievance has been reviewed and the case was dis
cussed with an official of your Union.
There is no provision in the Collective Agreement which
would give priority to the use of overtime to cover a walk
which was vacant on a given day. Casual employees were
employed in order to avoid a delay in the delivery of mail
on the day in question.
For these reasons, your grievance is denied.
The fourth stage was decided in each case on
May 26, 1971, as follows:
Your grievance has been reviewed and the matter discussed
with a representative of the Letter Carriers' Union of
Canada.
The action taken to cover unmanned letter carrier walks
was taken to ensure delivery of mail and did not constitute
an violation of the collective agreement, therefore your
grievance is denied.
On June 4, 1971, each of the applicants
signed a Notice of Reference to Adjudication.
On October 15, 1971, the Adjudicator heard
the parties but this Court has no information as
to what facts, if any, were established before
him.
The Adjudicator delivered his decision on
October 19, 1971. He stated that the union
claimed that the employer had violated the col
lective agreement by assigning "Casual"
employees to deliver mail on walks left
unmanned •due to the illness of regular letter
carriers and that, in the union's view, such work
should have been assigned to letter carriers or
Supervisory (Relief) Letter Carriers "upon
completion of their own routes, at overtime
rates". In the particular cases before him, it was
"conceded" that no Supervisory (Relief) Letter
Carriers were available for assignment to the
"unmanned" routes. The claim, he said, was
founded on Article 19.03(b), which reads:
(b) Effective 30th November 1970, coverage of
Unmanned Letter Carrier routes will be subject to the
overtime provision in clause 17.01. Insofar as possible,
where Letter Carriers or Supervisory (Relief) Letter Car
riers are required to perform overtime work to cover
unmanned letter carrier routes, such overtime will be
allocated in accordance with the principle of equal oppor
tunity as provided in clause 17.07.
In the Adjudicator's opinion, this language, on
its face, was "conclusive in favour of the
union" subject to the argument of the employer
that Article 19.03(b) merely provides a method
of calculating payment "in the event that the
employer should choose to require the perform-
ance of overtime work". After considering vari
ous provisions in the Collective Agreement, he
decided "that the employer violated the agree
ment by failing to assign the available work to
bargaining unit personnel, albeit on an overtime
basis". The Adjudicator concluded his decision
by saying that "It was assumed throughout the
hearing (although not expressly proven) that
had the provisions of Article 19.03(b) been
adhered to, the grievors would have been
assigned to unmanned walks, and would have
received overtime pay for performing such
work." and by ordering that they be compensat
ed for any income lost by them as a result of
the employer's improper use of casuals.
Following that decision, there was a refer
ence under section 23 of the Public Service
Staff Relations Act, which reads, insofar as
applicable, as follows:
23. Where any question of law or jurisdiction arises in
connection with a matter that has been referred to ... an
adjudicator pursuant to this Act, ... either of the parties
may refer the question to the Board for hearing or determi
nation ...
Pursuant to that section, the employer referred
certain questions to the Board for determina
tion. The Reasons for Decision of the Public
Service Staff Relations Board in connection
with this reference are dated January 7, 1972.
It appears from the Board's Reasons that the
only question of law relied on by the employer
at the end of the argument before the Board
was
Did the adjudicator err in interpreting the collective
agreement as precluding the employer from hiring casuals in
the circumstances?
Having reached the conclusion that, notwith
standing submissions to the contrary on behalf
of the applicants, it was entitled to determine
this question, the Board examined the various
relevant provisions in the collective agreement
and reached the following conclusions:
In the context in which the word "required" is used in
clause 19.03(b), however, the second sentence applies
where letter carriers or supervisory letter carriers are
needed to perform overtime work to cover unmanned letter
carrier routes. There is nothing in the sentence that limits
the employer's discretion to determine whether letter carri
ers and supervisory letter carriers are needed on an over
time basis to man such routes. It is only where the Employ
er determines that letter carrier or supervisory letter
carriers are required to perform overtime work to cover
unmanned letter carrier routes that it is bound to allocate
the overtime in accordance with the principle of equal
opportunity. If it had been the intention of the parties to
provide that, where overtime on unmanned routes, if the
manning of such routes required overtime, shall be allocated
to letter carriers or supervisory letter carriers, that intention
could have been spelled out in the same way as in clause
17.07(d).
All of the foregoing considerations lead us to the conclu
sion that the second sentence of clause 19.03(b) does not
create a legal entitlement in letter carriers and supervisory
letter carriers to be allocated unmanned letter carrier route.
We find that it goes no further than to declare that, if
overtime is required—demanded—of them on unmanned letter
carrier routes, it is to be allocated in accordance with the
broad guideline of the principle of equal opportunity set
forth in clause 17.07. Consequently, we find that the
Adjudicator erred in law in holding that, the Employer
violated the agreement by failing to assign the available
work to bargaining unit personnel, albeit on an overtime
basis. The decision of the Adjudicator is therefore set aside.
The application to this Court under section 28
of the Federal Court Act is from the decision of
the Public Service Staff Relations Board
aforesaid.
I think it is fair to say that, in this Court, the
applicants put the application to review and set
aside the decision of the Public Service Staff
Relations Board in the first instance on the
proposition that the Board had no authority to
determine the question of law referred to it
under section 23 of the Public Service Staff
Relations Act because
(a) the adjudicator did not make any error of
law which was incidental to his deciding the
whole matter referred to him, and
(b) the adjudicator reviewed the whole of the
collective agreement and gave it an interpre
tation which it could reasonably bear.
With great respect to those who have found
the matter difficult, I have no doubt that the
Public Service Staff Relations Board has unre
stricted authority, under section 23 of the
Public Service Staff Relations Act, to determine
any question of law arising in connection with a
matter that has been referred to an adjudicator
under that Act. The relevant provisions of the
Act seem clear and unambiguous. In the first
place, section 91(1) says that, where an
employee has presented a "grievance" up to
and including the final level in the grievance
process with respect to "the interpretation or
application in respect of him of a provision of a
collective agreement" and his "grievance" has
not been dealt with to his satisfaction, he may
refer the "grievance" to adjudication. In the
second place, we find that section 100(1) pro
vides that "every ... decision . .. of . .. an
adjudicator" is "final" except "as provided in
this Act". Finally we find the contemplated
exception to this attribute of finality in section
23, which provides that "where any question of
law ... arises in connection with a matter that
has been referred to ... an adjudicator pursuant
to this Act", either of the parties may refer "the
question" to the Board "for ... determination".
I find in the statute no qualification, express or
implied, on the power to determine such a ques
tion of law any more than in the ordinary stat
ute where there is provision for appeal on a
question of law.
A reference to the authorities relied on by the
applicants in this connection suggests to me an
explanation of the confusion that seems to have
arisen in this connection. All those authorities,
as nearly as I can make out, have to do with
cases where, even though the decision of an
arbitral or statutory tribunal had been given
what was apparently the attribute of unqualified
finality by agreement of the parties or by stat
ute, the courts have concluded that there is a
qualified authority in the courts to review the
tribunal's decision. I have not been able to find
any decision that has held that an absolute
power to determine a question of law such as is
found in section 23 of the Public Service Staff
Relations Act is subject to some implied
qualification.
There is no doubt in my mind that the Public
Service Staff Relations Board had authority,
under section 23 of the Public Service Staff
Relations Act, to determine the question of law
concerning the effect of the collective agree
ment that arose in connection with the griev
ances referred to adjudication by the applicants.
Therefore, this application cannot be dis
posed of without considering the question of
law as to whether the collective agreement
properly interpreted provides a foundation for
the applicants' grievances.
Before considering that question of law, a
preliminary comment should be made. The col
lective agreement has to do with conditions of
employment of certain postal employees includ
ing letter carriers. The provisions of that agree
ment were obviously framed having regard to
the state of the relationships existing among the
letter carriers, and between the lever carriers
and the Government as their employer, at the
time when the collective agreement came into
force. In considering the effect of the collective
agreement or any particular provision of it, it
would therefore be relevant—and indeed highly
desirable—to know the state of things to which
it was to be applied. This would have been so,
not only for the purpose of making the terms of
the agreement intelligent and to apply them to
the facts, but also for the purpose of determin
ing whether a term could be implied in the
agreement that was not actually expressed. (See
Kelantan Government v. Duff Development Co.,
[1923] A.C. 395, per Viscount Cave, L.C., at
pages 411-12.) In this matter there is no evi
dence whatsoever about those relationships
except such information as is sufficiently within
the realm of common knowledge that judicial
knowledge can be taken of it. In the circum
stances, I am of the view that no opinion should
be expressed as to the effect of the collective
agreement beyond that which is essential to
determine the matter before this Court) If any
other question should arise as to the effect of
the provisions of the agreement here in ques-
tion, it may be hoped that the surrounding cir
cumstances will be established in such a way
that an opinion can be formed concerning the
effect of the agreement with some confidence
that it is applicable to the actual relationships
involved.
I turn now to the question of law that must be
considered.
It would appear from the Adjudicator's deci
sion that what is involved in each of these cases
is a situation where a "walk" has been left
unmanned due to sickness of the regular letter
carrier and the grievor claims that the work of
servicing that walk should have been delayed
until after he had completed his own route so
that he could substitute for the sick letter carri
er at overtime rates. This raises at least two
questions concerning the effect of the collective
agreement. It raises a question as to whether
the applicants are entitled to have the work
delayed until they are able to do it. It raises a
question as to their contractual right to do it if
they had been available. On my view of the
matter, it is only necessary to deal with the first
of these questions. What has to be decided as a
matter of law, therefore, as I see it, is whether
the collective agreement, properly appreciated,
imposed an obligation on the employer to delay
the work of servicing the unmanned walk or
walks in question so that it could be offered to
the respective grievors after they had com
pleted their own routes and so that they could,
if they wished to do so, substitute for the sick
letter carrier or letter carriers. In my view, as I
have indicated, this question is all that absolute
ly requires to be answered. If the answer to it is
in the affirmative, it may be that the Adjudica
tor's award should be restored. If the answer to
it is in the negative, the Board was correct in
setting aside that award. In the latter case, it is
unnecessary to form any opinion as to whether
the collective agreement expressly or impliedly
contains any agreement concerning the hiring of
some class of persons called casuals and no
opinion should therefore be expressed with ref
erence thereto.
My view concerning what I regard . as the first
and essential question of law can be stated,
briefly. With reference to the work of a "walk"
that is left unmanned by reason of "sickness",
we do find that there is a provision in the
Collective Agreement (Article 10.04) that such
work will go to Supervisory (Relief) Letter Car
riers. Taken by itself, that provision would be
of no avail to the applicants because the appli
cants do not fall in that class. We also find,
however, that the agreement contemplates the
possibility of such work being done either by
letter carriers or by Supervisory (Relief) Letter
Carriers at least where they are required to
work overtime in order to do it. See Article
19.03. It may be that, read together, these arti
cles impose an obligation on the employer to
give such work either to letter carriers or to
Supervisory (Relief) Letter Carriers. That is a
question on which I am of the view that I
should express no opinion because, taken by
itself, it does not, in my opinion, avail the
applicants as I can find nothing in the collective
agreement upon which any argument can be
based that a postal employee has a right to have
some part of the postal service work delayed so
that he cari be given an opportunity of doing it,
after completing his own work. Therefore, the
application should, in my view, be dismissed.
* * *
THURLOW J. (orally)—In my view two points
arise on this motion. The first is that of the
scope of the authority of the Public Service
Staff Relations Board under section 23 of the
Public Service Staff Relations Act. That section
provides that "where any question of law or
jurisdiction arises in connection with a matter
that has been referred to" an arbitration tribu
nal or an adjudicator, pursuant to the Act, the
tribunal or the adjudicator, as the case may be,
or either of the parties may refer the question to
the Board for hearing and determination. There
does not appear to me to be any valid reason
for giving the expression "any question of law
or jurisdiction" as used in this provision a
restricted meaning. In particular I can see no
justification for restricting the sort of question
of law referable to the Board under section 23
to the sort of question which would justify
review of the decision of an arbitrator, whether
statutory or consensual, on the principles appli
cable in certiorari proceedings. The interpreta-
tion of a contract is prima facie a question of
law and in my view the interpretation of the
collective agreement here in question in relation
to the grievances of the applicants raised a
question or questions of law fit to be referred to
the Board for hearing and determination under
section 23.
Moreover, as the jurisdiction of this Court
under section 28 of the Federal Court Act, and
in particular section 28(1)(b) is not limited to
dealing with points of law which would be open
if this proceeding were by way of certiorari it
seems clear that this Court is not bound to
choose between and give effect either to the
interpretation put upon the collective agreement
by the adjudicator or to that put upon it by the
Board but has authority to substitute its own
opinion and to direct that its interpretation be
put into effect.
The other point that arises on the motion is
that of the correct answer to the question of law
which arose in connection with the grievances
and was referred to the Board for hearing and
determination. Both in the decision of the
Board and in the argument before this Court
this question was treated as involving what are
in reality two questions of law, viz., the ques
tion whether the employer breached the collec
tive agreement by hiring casual employees to
man letter carrier routes temporarily unmanned
by reason of the illness of the letter carriers to
whom the routes were assigned, and the further
question whether the applicants were entitled to
do in overtime the work which the casual
employees had been employed to do at a time
when the applicants were not available to do it
by reason of their occupation with their own
routes at that time.
As indicated in the course of argument I find
it difficult and unsatisfactory to reach firm con
clusions as to the meaning of such an agree-
ment—in this case a collective agreement made
to regulate as between union, employee and
employer certain relationships in an overall pre-
existing situation—upon the meagre materials
descriptive of the situation to which the agree
ment is to apply which are before the Court. In
the absence of fuller information any conclu
sion as to the meaning of the agreement must of
necessity be reached almost entirely on the bare
meaning of the words and expressions by which
the parties have expressed their agreement.
Because I do not think this is calculated to lead
to a satisfactory or perfect interpretation of
what was intended by the agreement I wish to
guard what I shall say with the caution that my
conclusions are based only on such materials as
are available to the Court and such as may be
sufficiently notorious to be taken into account
and that I do not propose to reach a firm
conclusion on any point other than the rather
narrow one on which the result of the motion
appears to me to turn.
The agreement itself appears to contemplate
that when the employer has regular work to be
done during regular working hours members of
the bargaining unit will be called upon to do it. I
would infer this from the fact that the agree
ment provides an elaborate scheme for seniority
rights and for the bidding for and assignment of
letter carrier walks. The same may be said with
respect to overtime work when the employer
has work to be done on that basis. From this it
seems possible that a contract on the part of the
employer might be implied to employ only
members of the bargaining unit to do such work
or to employ only members of the bargaining
unit so far as available for the purpose. It seems
unnecessary, however, to finally determine this
point, for I find nothing in the terms of the
agreement, when considered either individually
or collectively, from which it appears to me to
be possible to infer, let alone to necessarily
conclude, that the employer has contracted with
the bargaining unit that he will in a situation of
the present kind call upon persons in the posi
tion of the applicants to do the work in over
time. What the agreement appears to me to
provide for on the subject of overtime is the
terms on which such work is to be performed
when employees are called upon by the employ
er to do it. But the agreement does not appear
to me to provide that employees in the position
of the applicants may require the employer to
call upon them to work overtime to man the
unmanned routes after their own routes have
been completed.
It does not follow, however, that the employ
er is entitled to hire casual help for the purpose
of having the unmanned route worked in regular
hours simply because he does not decide to
have it done by an employee in overtime. In
such a situation, assuming that effect of the
agreement to be that the work of the employer
is to be carried out by bargaining unit personnel
or by them so far as available, so far as the
collective agreement is concerned, the employer
as I see it had the choice
(1) of getting the work done by honouring the
agreement that is to say
(a) by following the provisions of article
10.04(a) by assigning available supervisory
(relief) letter carriers, or
(b) by an alternative method which the
agreement may contemplate such as the
assignment of unassigned or part time letter
carriers (though I express no opinion on
whether such a course is open under the
agreement), or
(c) by calling upon the letter carriers or
supervisory (relief) letter carriers to work
overtime, or
(2) of leaving the work undone.
On the same assumption it seems to me to
follow that the employer would not be within
his rights and would have committed a breach
of the agreement when he employed casual
employees to work unmanned routes at a time
when methods of having the work done by
bargaining unit personnel, under the agreement,
had not been exhausted.
On the other hand unless such casual
employees were engaged to man the unmanned
routes at a time when particular appropriate
members of the bargaining unit were available
to man them it does not seem to me to be
possible to affirm that the particular members
of the bargaining unit have thereby been
deprived of overtime work since it is not sug
gested that the casual employees were engaged
to work on that basis and their work was done
at a time when the particular bargaining unit
members were not available to man the
unmanned routes and the employer, even if the
casual employees had not been engaged to do
the work, was not required by the agreement to
have the work done by the applicants as over
time work. It is perhaps not unlikely that if the
employer had been unable to find casual
employees to man the routes he might have
called on the particular bargaining unit members
to do the work as overtime but that is a differ
ent matter and indeed is but one of fact. It
cannot, as I see it, be said that the employer
broke the provisions of the agreement with
respect to overtime work and thereby deprived
the particular complainants of an opportunity to
work overtime when they were never in a posi
tion to demand that the work be done as over
time work and that they be employed to do it.
As this leads to the same conclusion as that
reached by the Board, that is to say, that the
decision of the adjudicator should be set aside I
would dismiss the motion.
Smith D.J. concurs with the Chief Justice.
In my view, where there is a reference of a question of
law arising in connection with the decision of a matter or an
appeal on a question of law, what has to be decided is a
question of law that is determinative of the matter and not
necessarily the question of law formulated by the parties or
the lower tribunal. In this connection, I refer to a recent
decision of the Supreme Court of Canada in an immigration
appeal (Leiba v. The Minister of Manpower and Immigra
tion pronounced January 25, 1972).
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.