A-91-78
In re Decision of Kenneth E. Norman, Member of
the Public Service Stall Relations Board and
Adjudicator, and in re Melvin Grant and Gerald
Stoykewich
Court of Appeal, Jackett C.J., Urie and Le Dain
JJ.—Ottawa, February 13 and 16, 1979.
Judicial review — Public Service — Annual leave carry-
over — Contract stipulating that every reasonable effort to be
made to grant leave requested and providing of automatic
carry-over of unused leave credits — Denial of leave carry-
over because of operational requirements — Adjudicator
rejecting grievance — Reasons not dealing with question of
reasonable effort to grant time requested — Whether or not
Adjudicator put to himself the wrong question — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Applicants' requests for carrying over annual leave to the
next fiscal year were denied because of operational require
ments determined by a study conducted by management.
Applicants were required to take leave during that fiscal year
at a time other than that requested. The collective agreement
stipulated that the employer make every reasonable effort to
grant the employee the leave requested and provided for auto
matic carry-over of unused leave credits into the next fiscal
year. Grievances seeking the forfeiture of the money paid by
management for scheduled annual leave and the reinstatement
of fifteen annual leave days for carry-over were rejected by the
Adjudicator; his reasons did not deal with the question of
whether or not management had made reasonable efforts to
grant the employees' requests. This section 28 application seeks
to set aside the Adjudicator's decision on the ground that the
Adjudicator put to himself the wrong question.
Held, (Jackett C.J. dissenting) the application is allowed.
Per Urie J.: The Adjudicator misapprehended the nature of
the issue before him. In the absence of any reference by him to
the contentions of counsel for the employer that all reasonable
steps had to be taken to comply with the applicants' requests
and because of his clear concéntration on the wrong issue, it is
impossible to speculate that he really had the proper issue in
mind when he made his decision. If he had it in his mind, he did
not find it necessary to deal with it in light of his decision on
the main issue as he saw it. The question of reasonableness was
treated as an alternative argument which was unnecessary for
him to deal with because of his disposition of what he regarded
as the only issue.
Per Le Dain J.: With respect to the issue of "reasonable
effort", the Adjudicator either (a) simply did not regard it as
an issue before him or (b) regarded the obligation under article
17.03(1)(c) to be overridden or displaced by the management
authority to require an employee to take his vacation leave in
the year in which it is earned. The obligation in article
17.03(1)(c) to make every reasonable effort, having regard to
operating requirements, to comply with a request for leave
carry-over is a separate and distinct obligation, and as such, a
qualification of the general management authority to require
an employee to take his vacation leave at a specified time in the
fiscal year in which it is earned. In either case the Adjudicator
mistakenly failed to deal with the issue that was before him.
Per Jackett C.J. dissenting: The Adjudicator either forgot to
deal with the first ground, or did not find it necessary or took it
for granted that there was no need to mention specifically what
was obvious, that the attack based on the first ground had not
been made out, but by reason of the uncertainty that he
regarded as surrounding the second ground, devoted his reasons
exclusively to that ground. Having regard to the references in
the Adjudicator's reasons to the evidence and argument on the
first ground, it cannot be assumed that he overlooked it. When
a person who has to adjudicate reserves judgment on certain
grounds, when others have been argued and rejected in the
course of argument, it is not unusual to overlook mentioning
those that have already been rejected when preparing reasons
concerning those that have been reserved. There is no reason
for assuming that this Adjudicator, who is experienced and
professionally trained, would have been guilty of such an
elementary error as failure to dispose of a principal part of a
party's case that he obviously had in mind.
APPLICATION for judicial review.
COUNSEL:
M. Wright, Q.C. and A. Raven for Melvin
Grant and Gerald Stoykewich.
Robert W. Côté for Treasury Board.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for Melvin Grant
and Gerald Stoykewich.
Deputy Attorney General of Canada for Trea
sury Board.
Public Service Staff Relations Board,
Ottawa, for Public Service Staff Relations
Board.
The following are the reasons for judgment
rendered in English by
JACKETT C.J. (dissenting): This is a section 28
application to set aside a decision of an adjudicator
under section 91 of the Public Service Staff Rela
tions Act, R.S.C. 1970, c. P-35.
The decision has to do with grievances arising
out of a collective agreement between the Treasury
Board and the Public Service Alliance of Canada
concerning the Heating, Power and Stationary
Plant Operation Group. The provisions of the
agreement to be noted are:
1. article 7, which reads:
7.01 Except to the extent provided herein, this Agreement
in no way restricts the authority of those charged with
managerial responsibilities in the Public Service.
and is, hereafter, referred to as the "manage-
ment rights clause";
2. article 17.03(1), which reads in part:
(1) In granting vacation leave with pay to an employee
the Employer shall, subject to the operational require
ments of the service, make every reasonable effort:
(b) to grant the employee his vacation leave during the
fiscal year in which it is earned, if so requested by the
employee not later than April 1;
(c) to comply with any request made by an employee
before January 31 that he be permitted to use in the
following fiscal year any period of vacation leave of four
(4) days or more earned by him in the current year;
(e) to grant the employee his vacation leave on any
other basis requested by the employee if the employee
makes his request not later than April 1;
hereinafter referred to as the "vacation time
arrangement clause", and
3. article 17.07, which reads:
Where in any fiscal year an employee has not been
granted all of the vacation leave credited to him, the
unused portion of his vacation leave shall be carried over
into the following fiscal year.
hereinafter referred to as the "automatic carry
over clause".
As there would not appear to be any material
difference between the facts relating to the differ
ent applicants, I propose to restrict my recital of
the facts to those applicable to the applicant
Grant.
On February 21, 1976, the applicant applied for
annual leave for 15 days in June and July 1976.
On May 20, 1976, management replied by a letter
reading as follows:
In regard to the subject which I discussed with you last
evening.
As you well knew the system we use here for the annual
holidays is a rotating system from year to year and the holidays
you requested is the holiday period posted for other HP3s for
this particular year.
As they have not indicated to me in any way (written or
orally) that they are not taking that particular period I can not
in fairness to them grant this time to you. I can not remove
them from the period set down for them any more than I would
grant holidays to them for a choice holiday time that was
scheduled for you.
The person for whom a particular holiday period is scheduled
gets first choice for that period. If he chooses not to take that
particular time then that time is available for some other
Powerhouse employee (HP3 or HP4 whichever the case may
be).
Operational requirements are such at this time that we can
not let more than one HP3 and one HP4 be away on annual
leave at the same time.
Therefore for the reasons stated above I feel I cannot grant
you the leave for the period requested.
A holiday schedule for 1976-77 was posted show
ing the applicant's holidays in May and June and,
in an allocated space he seems to have repeated his
request for "Same as on leave form dated Feb.
21/76". After certain exchanges, on January 31,
1977, the applicant made a request in writing to
"carry-over" 15 days annual leave. On February
14, 1977, a note was posted by management
reading:
All Powerhouse Staff:
Due to the Operational requirements of the Powerhouse and
the extra leave requirement for the 1977-78 fiscal year it has
been found necessary not to allow any carry over of unused
annual leave.
Therefore all unused leave will have to be scheduled during
the next 6 weeks.
The applicant thereupon took his leave in March
1977 and filed a grievance whereby he grieved
"managements ... refusal to grant and/or carry-
over annual leave in accordance with the provi
sions as set forth in the H.P. and S.P.O. collective
agreement". The relief sought by the grievance
was "FORFEITURE BY MANAGEMENT OF MONEYS
PAID ME FOR SCHEDULED ANNUAL LEAVE. (2)
REINSTATE FOR CARRY-OVER FIFTEEN (15) DAYS
ANNUAL LEAVE." This grievance was denied by
management at all levels and was, thereupon,
referred to adjudication.
The grievances were rejected by the Adjudica
tor's decision and this section 28 application is to
set aside that decision.
The facts are stated very briefly in the
Adjudicator's decision as follows:
The Grievors are employed at the Power House on the
grounds of the Winnipeg Airport. Mr. Grant is an HP-3. Mr.
Stoykewich is an HP-4. Staff at the Power House consists of a
Chief, Mr. Hamilton; his Assistant, Mr. Wilson, and nine
operators. Five of the operators fall into Mr. Stoykewich's job
classification and four share Mr. Grant's. The Power House is
continuously manned by rotating shifts on a 28 day cycle.
Annual vacation leave has traditionally been allocated by 'pair-
ing' an HP-4 with an HP-3 and rotating each pair through the
`preferred' summer vacation leave periods. That is, if a given
pair of operators was scheduled for annual leave during the
better part of July in 1976, it would follow that 1977 would see
the two men away on their vacations for most of August, and so
on.
I will not now attempt to chronicle the conversations and
correspondence which preceded the pivotal event in this matter
as I do not regard the particular circumstances which resulted
in neither of the Grievors being satisfied with their assigned
annual leaves in 1976 to be material. All that matters is that
each was unhappy with the result presented to them by their
Chief, Mr. Hamilton. This mutual state of mind eventually led
each of them to formally request that his 1976 vacation leave
days be carried over into fiscal year 1977. These requests were
precipitated by the following memorandum from Mr. Hamilton
to "All Powerhouse Employees":
January 26, 1977.
Carry-over leave 1976/77:
Any requests for carry-over leave 1976/77 into the next
fiscal year 1977/78 must be in writing stating the number of
days requested to be carried over, reasons for carry-over and
the approximate dates leave is requested for.
This is necessary to facilitate operational requirements.
All requests must be submitted to the Chief Operating
Engineer by January 31, 1977.
On receiving several requests for carry-over, Mr. Hamilton
asked Mr. Wilson, his Assistant, to do a study of operational
requirements. By memorandum of January 31, Mr. Wilson put
to paper his analysis of the scheduling problems which lay in
wait for the Power House in the following fiscal year. He
concluded:
Totaling up the number of weeks required in time off for the
above examples, it can be seen that it 'would be extremely
difficult to fit in the carry-over days requested.
Mr. Hamilton then reviewed the Power House's operational
requirements in the year to come, took Mr. Wilson's memoran-
dum into account, and published the following notice on Febru-
ary 14, 1977:
All Powerhouse Staff:
Due to the operational requirements of the Powerhouse and
the extra leave requirement for the 1977-78 fiscal year it has
been found necessary not to allow any carry-over of unused
annual leave.
Therefore all unused leave will have to be scheduled during
the next 6 weeks.
Each of the Grievors was subsequently presented with a form to
sign which specified certain leave days in March of the current
fiscal year. Each, in turn, reluctantly signed the form and used
the leave.
Before attempting to state the question that has
to be decided on this section 28 application, I deem
it advisable to set out certain matters by way of
background, viz.:
1. As I understand the situation created by the
collective agreement,
(a) it was management's obligation to
arrange a holiday schedule in such a way that
each employee would be allowed to enjoy his
period of annual leave or vacation (which was
presumably otherwise provided for) and, in so
doing, had to comply with the vacation time
arrangement clause by, inter alia, making
every reasonable effort, subject to the opera
tional requirements of the service,
(i) to arrange an employee's period of leave
in the fiscal year in which it was earned, if
so requested, not later than April 1, and
(ii) to comply with a request made before
January 31 to put a period of not less than
4 days over to the following fiscal year; and
(b) any annual leave not granted to an
employee in the fiscal year in which it was
earned automatically went over to the next
year by virtue of the automatic carry over
clause.
2. In connection with agreements containing
substantially similar clauses, questions had
arisen whether, where management concluded
that it could not comply with a request by an
employee under the vacation arrangement
clause, it could assign him an annual leave
period in the fiscal year that he had not request
ed with the result that the automatic carry over
clause would not come into play. This was cer-
tainly the question that arose in Low and
Duggan, where Adjudicator Abbott decided
against management and was apparently the
point in Schandlen, Gray, Lee and Coulter, and
others.
3. The decision of the Adjudicator in Low and
Duggan was overruled by the Public Service
Staff Relations Board, which held, in effect,
that a valid grant of annual leave was not
conditional upon a request therefor by the
employee. (No question has been raised on this
section 28 application as to the correctness of
the Board's decision on this point and, with
respect, it would seem to me to be correct.)
4. Two possible grounds for supporting the
grievance of this applicant against "manage-
ment's ... refusal to grant and/or carry-over
annual leave" and his "action requested",
namely, forfeiture by management of money
paid for annual leave and "re-instate for carry-
over fifteen ... days annual leave" are
(a) that management did not make every
reasonable effort to grant the carry over
requested "subject to operational require
ments of the service", or
(b) that the annual leave that he did take was
not requested by him and, in accordance with
prior adjudicator decisions, should be carried
over automatically.
With that background, I turn to a review of the
Adjudicator's decision that is attacked by this
section 28 application.
The Adjudicator prefaces his reasons by saying
that the issue involved is not "novel", that it has
received attention from a number of adjudicators
and that no cogent analysis emerges from the
decisions. He defines the point as being "whether
an employee has a right to `carry-over' vacation
leave days to a subsequent fiscal year in the face of
a direction by the employer that the unused days
in question be liquidated by the employee within
the current fiscal year". After reviewing the facts
as set out above and quoting the relevant provi
sions of the collective agreement, he referred to the
argument for the grievors as follows:
Mr. Tarte, for the Grievors, cited seven cases supporting his
argument: Schandlen (166-2-146) (Jolliffe); Gray (166-2-457)
(Martin); Lee and Coulter (166-2-741, 42) (Moir); Low and
Duggan (166-2-855, 56) (Abbott); Stewart (166-2-2001) (Sim-
mons); Leswick (166-2-2035) (Descôteaux); and Lang (166-2-
2430) (Mitchell). Mr. Tarte conceded that Mr. Abbott's deci
sion in Low and Duggan was reversed by the Public Service
Staff Relations Board (168-2-56) (Brown) but maintained that
the point upon which the decision turned had to do with the
requirement that there be compliance with an article which
stipulated that a request for carry-over be made by January 31
of the current fiscal year.
and to that for the employer as follows:
Mr. Henderson, for the Employer, contended that the griev
ances must be rejected on the ground that it had not been
established that management's action in this matter was not
within its residual rights under Article 7. Alternatively, on the
question of reasonableness, he cited Wessel (166-2-676) (Moir)
and Laberge (166-2-99) (Jolliffe), cases having to do with leave
scheduling. Finally he put forward an argument as to my
remedial authority, or rather the lack of it, in the event that I
was persuaded that the Employer had violated the Collective
Agreement. For reasons which I shall now set down, it is
unnecessary to deal with this submission.
He then analyzed briefly the decisions relied on by
the grievor to show that, on the question as to the
necessity of a request from the employee before
management assigned dates for annual leave, they
had been overruled by, or did not take into
account, the decision by the Board in Low and
Duggan. He concluded as follows:
In result, the grievances are rejected. On the footing of the
analysis in Low and Duggan (168-2-56) I have found no
limitation in Article 17 of the Collective Agreement on the
authority of the Employer to unilaterally require the grievors to
liquidate their unused vacation leave credits in the current
fiscal year. But for this compulsion by the Employer, I would
have sustained the grievances as have my colleagues in adjudi
cation over the course of the years in the seven "carry-over"
cases to which I have referred.
When this section 28 application first came on
for hearing, the matter was put over for re-hearing
• and the parties were given leave to file affidavits as
to the nature of the case that was put before the
Adjudicator. Each side had been represented by a
lawyer before the Adjudicator and an affidavit of
each lawyer has been filed. The relevant portion of
the affidavit filed on behalf of the applicants
reads:
3. The grievances filed by the above-noted grievors complained
that the Employer had violated the applicable collective agree-
ments when it refused to allow the grievors to exercise certain
vacation-leave carry-over privileges. Specifically, the grievors
had requested that their unused vacation leave days for the
fiscal year ending on March 31, 1977 be permitted to be
carried over into the fiscal year ending March 31, 1978. It was
the Employer's refusal to permit such vacation-leave carry-over
which led to the filing of the subject grievances and the
reference of such grievances to adjudication.
4. As counsel for the grievors, it was my responsibility to
prepare for and attend at the Adjudication Hearing. As a result
of my preparation for and participation in the said adjudica
tion, I maintained a complete set of hand-written notes which
set out the basis of the case and, specifically, what transpired at
the hearing before Adjudicator Kenneth E. Norman.
5. My position before the Adjudicator was simply that the
grievors, Messrs. Grant and Stoykewich, grieved against the
Employer's unreasonable refusal to permit carry-over of unused
vacation-leave credits. My handwritten notes indicate that my
opening statement in argument was as follows:
The facts are simple and so is the issue. In both cases the
employees had unused vacation leave credits and requested
carry-over into the next fiscal year before January 31. The
requests were refused for no valid reason.
6. It was my contention before Adjudicator Norman that, in
the circumstances, the Employer had acted in violation of
Article 17.03 of the collective agreement. This article was
referred to at the outset of the hearing and was the basis of the
case presented by the grievors.
7. I argued that, upon a reasonable interpretation of the said
Article 17.03 of the collective agreement, subject to certain
conditions precedent as to time limits and to number of days
and subject to the operational requirements of the service, the
Employer was under an affirmative obligation to make every
reasonable effort to comply with requests for leave carry-over. I
insisted that in the case of Messrs. Grant and Stoykewich, the
Employer had failed to demonstrate that it had made every
reasonable effort to comply with the employees' request. Fur
thermore, it was alleged that, in the circumstances, the opera
tional requirements of the service were such that they could not
be used to justify a refusal to the grievors' requests.
8. In dealing with the general question as to the extent to
which an employee could challenge the Employer's reliance
upon operational requirements, a number of adjudication deci
sions dealing with the question were referred to and discussed
in argument. Referring to the Stewart case, Board file 166-2-
2001, I pointed out that the "operational requirements of the
service" were not to be determined after the fact. The Gray
decision, Board File 166-2-45, was cited in support of the
proposition that financial considerations should play only a very
minor role in determining the operational requirements of the
service.
9. I then argued, after referring to the adjudication decisions
on the point, that the Employer had to show at the hearing why
operational requirements of the service prevented the carry-
over. I insisted that only the Employer could explain those
requirements. I then proceeded to review the evidence in order
to demonstrate that the Employer had, in fact, acted arbitrarily
without making any effort, let alone a reasonable one, to grant
the carry-over.
10. Finally, in dealing with the Public Service Staff Relations
Board decision in Low and Duggan, I distinguished this case
from the present case by pointing out that, although the
language in the applicable collective agreements was similar,
the Board's decision in Low and Duggan could not and should
not be followed in respect of Messrs. Grant and Stoykewich
because in Low and Duggan no timely request (i.e., before
January 31) had been made by the employees involved. I
insisted that as Messrs. Grant and Stoykewich had filed timely
requests as set out in Article 17.03, the Board's decision in Low
and Duggan was inapplicable.
11. With respect to the submissions made on behalf of the
Employer, Mr. Henderson argued that the employees had not
been very co-operative and that to allow the carry-over would
undoubtedly have caused more overtime. This, he stated, was
cause for concern to the Employer and constituted a valid
reason to deny the requests as this formed part of the consider
ations in determining the operational requirements of the
service.
12. I have no hesitation in stating that the article relied upon
by the grievors at the Adjudication Hearing in support of the
grievances filed was definitely Article 17.03 of the applicable
collective agreements. Article 17.07 was referred to as well but
only as an aid to the proper interpretation of the said Article
17.03.
13. Having read Adjudicator Norman's Decision and recalling
the nature of the evidence introduced and the submissions made
at the hearing, I can only conclude that Adjudicator Norman
misled himself in respect of the issue to be decided.
The relevant part of the affidavit filed on behalf of
the Employer reads:
3. The grievances of Messrs. Melvin Grant and Gerald Stoyke-
wich were identical and therefore were heard together and
addressed themselves as follows:
grieving, managements (coe) refusal to grant and/or carry-
over annual leave in accordance with the provisions as set
forth in the H.P. and S.P.O. Collective Agreement.
The action requested by the grievors was as follows:
Mr. Gerald Stoykewich
Forfeiture by management of monies paid me for schedule
annual leave. Re-instate for carry-over 7 days annual leave;
Mr. Melvin Grant
Forfeiture by management of monies paid me for scheduled
annual leave. Re-instate for carry-over 15 days annual leave.
4. As counsel for the Treasury Board, it was my responsibility
to prepare for and attend at the Adjudication Hearing. As a
result of my preparation for and in particular in the said
Adjudication, I maintained a set of notes which set out the
basis of the case and the evidence which was available at the
hearing to the Adjudicator as presented by both sides of the
grievance.
5. Evidence was presented to the Adjudicator that the Manag
er of the particular unit in question had received requests from
both grievors for carry-over of their annual leave and in
considering the operational requirements of the plant, these
requests were denied and both grievors were requested to
liquidate their respective annual leave credits by the end of the
fiscal year. Both grievors filed or signed an application for leave
and attendance report and both grievors liquidated their annual
leave prior to the end of the fiscal year, 1976-77.
6. In both direct and cross-examination, the Manager of the
particular unit in question, Mr. Cory Hamilton, described those
matters which he considered in determining the operational
requirements of his unit for fiscal year, 1977-78, prior to
denying the requests for carry-over of the two grievors. These
matters are as follows:
(i) the traditional scheduling of leave in the particular plant
with a rotating shift system of leave allocation;
(ii) the fact that over-time would have to be allocated to
other employees thereby unduly burdening them considering
some of the other employees' ages;
(iii) the fact that an H.P. 4 and an H.P. 3 had to be on shift
together at the same time;
(iv) the fact that there were extra statutory holidays granted
under a new collective agreement previously signed, thereby
putting a further burden on the shift schedule;
(v) the fact that Mr. Wilson, another employee in the unit
had 5 weeks of furlough leave which he was entitled to;
(vi) the average sick leave for past years;
(vii) the fact that employees including one of the grievors,
Mr. Grant, had complained about having to work additional
over-time in the past;
(viii) an attempt to maintain harmonious relationships be
tween all the employees in the unit;
(ix) the facts set out in a review of operational requirements
for the fiscal year, 1977-78, prepared at his request by his
assistant, Mr. Wilson.
7. It was my contention before the Adjudicator that in the
facts of the particular grievance, the Manager had carefully
considered whether or not operational requirements would
allow him to grant the request for carry-over into the next fiscal
year and that his conclusion based upon his study of the facts
before him was that the operational requirements of the par
ticular unit would not enable him to grant the requests for
carry-over. I contended that on a reading of S. 701 and 17.03 of
the Collective Agreement management had the right to order
an employee to liquidate his unused annual leave if the opera
tional requirements would not permit a carry-over of leave as
contemplated by Article 17.03.
8. The issue therefore, clearly before Adjudicator Norman was
whether or not the Manager acted in a reasonable manner in
refusing the request to carry-over the annual leave in light of
Articles 7.01 and 17 of the Collective Agreement.
Before us, the attack made on the Adjudicator's
decision, as I understand it, was that he put to
himself the wrong question, viz., instead of
answering
(a) the question whether the employer, before
refusing the requests under article 17.03(1)(c),
made every reasonable effort, subject to opera
tional requirements, to comply with those
requests,
he put to himself only
(b) the question whether, having refused such
requests, the employer had the right to require
the employees to take their annual leaves in the
fiscal years in which they had been earned with
the consequential result that the automatic
carry over clause did not come into operation.
Examining the Adjudicator's decision in the
light of the argument, it is clear that any doubt
would have been removed if he had made an
express finding one way or another on the question
whether the applicants had succeeded in showing
that the employer had not made every reasonable
effort to comply with their requests to put their
annual leaves over to the next fiscal year. How
ever, for this section 28 application to succeed, this
Court must be persuaded that he omitted to con
sider and come to a conclusion on that question.
As I understand the Adjudicator's appreciation
of the grievances, as put forward, they would
succeed if the Adjudicator concluded
(a) that the employer did not make every
reasonable effort to comply with the employees'
requests to carry over their annual leave, or
(b) that the applicants were entitled to carry-
over of their annual leaves, in any event, by
virtue of the automatic carry-over clause,
because they had not applied for them in the
fiscal year;
and he reached a conclusion adverse to the appli
cants on both questions.
In the first place, it is to be noted that both
grievances rely on management's refusal
(a) "to grant ... annual leave", and/or
(b) "carry-over annual leave".
On the first of these questions, as far as appears
from the record before us, all the evidence was put
forward on behalf of the employer and, as far as
we are in a position to judge, tended to show that
every reasonable effort was made.
As I read the Adjudicator's decision, while he
makes no express finding on the question, he does
not appear to have thought that any arguable case
was put forward by the applicants. He states in a
summary way, the effect of the evidence put forth
on the subject on behalf of the employer and he
refers to cases cited on behalf of the employer "on
the question of reasonableness". After discussing
the second question at length, he says that he has
found no limitation on the authority of the employ
er to unilaterally require "the grievors" to liqui
date their leave credits. (While he does not say so,
it seems clear to me that he is referring to these
particular "grievors" as persons who have been
validly refused requests to put their leave credits
over.)
Furthermore, while the affidavit of the lawyer
who appeared for the applicants before the
Adjudicator is, generally speaking, to the effect
that he relied only on this question in putting the
matter before the Adjudicator, it is to be noted
(a) that he does not expressly say that the
Adjudicator was in error in reasons delivered
shortly after the hearing, when the Adjudicator
summarizes his argument as having to do with
the other question, and
(b) that he expressly states (paragraph 10 of his
affidavit) that he distinguished Low and
Duggan, which decision bears only on the second
question and does not bear on the question of
"reasonable effort" at all.
In addition, it is quite clear, from the affidavit
of the lawyer for the employer (on which the
applicant did not choose to cross-examine), that,
according to his recollection and notes, he did put
in evidence concerning the question of "reasonable
effort" and did make submissions with regard
thereto.
To summarize, with reference to the attacks on
the Adjudicator's decision, it seems clear:
(a) evidence was led on the question of whether
the employer used every reasonable effort,
(b) there was argument by both sides on the
second question, i.e., the "right" of the employer
to require an employee to use up annual leave in
the fiscal year after an application to put it over
has been refused,
(c) without, by his reasons, expressly rejecting
the attack based on the first ground, the
Adjudicator devoted the part of his reasons
where he expresses his own reasoning to the
attack based on the second ground.
In these circumstances, there are two possibilities
that occur to me, viz.:
(i) the Adjudicator forgot to deal with the first
ground,
(ii) the Adjudicator, by reason of the course of
argument and what fell from him during argu
ment, did not find it necessary, or took it for
granted that there was no need, to mention
specifically what was obvious, namely, that the
attack based on the first ground had not been
made out, but, by reason of the uncertainty that
he regarded as surrounding the second ground,
devoted his reasons exclusively to that ground.
In my view, having regard to the references in
the Adjudicator's reasons to the evidence and
argument on the first ground, it cannot be
assumed that he overlooked it. In my experience,
when a person who has to adjudicate reserves
judgment on certain grounds, when others have
been argued and rejected in the course of argu
ment, it is not unusual to overlook mentioning
those that have already been rejected when prepar
ing reasons concerning those that have been
reserved. I can see no reason for assuming that this
Adjudicator, who, I gather from counsel for both
sides, is experienced and professionally trained,
would have been guilty of such an elementary
error in the adjudicative process as failing to dis
pose of a principal part of a party's case that he
obviously had in mind.
In my opinion the section 28 application should
be dismissed.
The following are the reasons for judgment
rendered in English by
URIE J.: I have had the advantage of reading
the reasons for judgment of both the Chief Justice
and of my brother Le Dain. With great deference,
I find the latter more persuasive and in accord
with my view of the case.
It is not enough, I think, that the Adjudicator
had before him the evidence adduced by counsel
for the employer with respect to the actions taken
by the applicants' immediate superior to determine
the operational requirements of the Power House
staff, as well as, perhaps, counsel's argument with
respect thereto, when by his definition of the issue
at the commencement of his decision, as set forth
in the reasons of Le Dain J., the Adjudicator
clearly did not perceive that whether or not the
employer had made every reasonable effort to
comply with the applicants' requests was the sole
issue. If support for that view of his perception is
required, it is supplied by his reliance on Low and
Duggan (168-2-56) and his comment with respect
to that case that:
... I have found no limitation in Article 17 of the Collective
Agreement on the authority of the Employer to unilaterally
require the grievors to liquidate their unused vacation leave
credits in the current fiscal year. But for this compulsion by the
Employer, I would have sustained the grievances as have my
colleagues .... [Emphasis added.]
When coupled with his earlier comment that
Low and Duggan is a "like" case, it demonstrates
to me that the Adjudicator misapprehended the
nature of the issue before him. In the absence of
any reference by him to the contentions of counsel
for the employer that all reasonable steps had been
taken to comply with the applicants' requests and
because of his clear concentration on the wrong
issue, I find myself unable to speculate that he
really had the proper issue in mind when he made
his decision. If he had it in mind, I do not think
that he found it necessary to deal with it in light of
his decision on the main issue as he saw it. The
real issue was an alternative one in his view, as
appears from his summary of the submissions of
counsel for the employer wherein he stated:
Mr. Henderson, for the Employer, contended that the griev
ances must be rejected on the ground that it had not been
established that management's action in this matter was not
within its residual rights under Article 7. Alternatively, on the
question of reasonableness he cited Wessel (166-2-676) (Moir)
and Laberge (166-2-99) (Jolliffe), cases having to do with leave
scheduling.
I deduce from this that he treated the question
of reasonableness as an alternative argument
which it was unnecessary for him to deal with
because of his disposition of what he regarded as
the only issue.
I would, therefore, dispose of the section 28
application in the manner proposed by my brother
Le Dain.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: I have had the advantage of read
ing the reasons of the Chief Justice but I am
unable to agree that the Adjudicator considered
and disposed of the issue that was put before him
by the grievances.
In my view the issue raised by the grievances
was whether the employer, in refusing the grievors'
requests to be permitted to carry over vacation
leave credit earned in fiscal year 1976-77 to fiscal
year 1977-78, complied with the provisions of
paragraph (1)(c) of article 17.03 of the applicable
collective agreement which reads as follows:
17.03 Granting of Vacation Leave
(1) In granting vacation leave with pay to an employee the
Employer shall, subject to the operational requirements of the
service, make every reasonable effort:
(c) to comply with any request made by an employee before
January 31 that he be permitted to use in the following fiscal
year any period of vacation leave of four (4) days or more
earned by him in the current year;
That this was understood to be the issue raised
by the grievances is indicated by the employer's
replies at the various levels of the grievance pro
cess. The replies at the first and second levels set
out at length the reasons why the employer could
not grant the request for leave carry-over. The
reply at the final level stated that "the operational
requirements would not allow the carry-over of
leave credits into the following fiscal year, and as a
consequence you were scheduled to take the leave
in the year in which it was earned". At no point
does there appear to have been any joinder of issue
on the question whether the automatic carry-over
provisions of article 17.07 apply to a case in which
the employer, having refused a request for leave
carry-over, has required the employee to "liqui-
date" his leave credit in the current fiscal year.
That the parties are in agreement that the sole
issue before the Adjudicator was whether the
employer made a reasonable effort to comply with
the request for leave carry-over, as required by
article 17.03(1)(c) of the collective agreement, is
indicated by the affidavits filed on behalf of the
parties and set out at length in the reasons of the
Chief Justice, and, in particular, by paragraph 5 of
the affidavit filed on behalf of the applicants,
which reads as follows:
5. My position before the Adjudicator was simply that the
grievors, Messrs. Grant and Stoykewich, grieved against the
Employer's unreasonable refusal to permit carry-over of unused
vacation-leave credits. My handwritten notes indicate that my
opening statement in argument was as follows:
The facts are simple and so is the issue. In both cases the
employees had unused vacation leave credits and requested
carry-over into the next fiscal year before January 31. The
requests were refused for no valid reason.
and by paragraph 8 of the affidavit filed on behalf
of the Crown, which reads:
8. The issue therefore, clearly before the Adjudicator Norman
was whether or not the Manager acted in a reasonable manner
in refusing the request to carry-over the annual leave in light of
Articles 7.01 and 17 of the Collective Agreement.
At the outset of his reasons for decision the
Adjudicator defined the issue before him as
follows:
The point in question is whether an employee has a right to
"carry-over" vacation leave days to a subsequent fiscal year in
the face of a direction by the employer that the unused days in
question be liquidated by the employee within the current fiscal
year.
The confirmation that this was the issue to
which the Adjudicator directed his mind and that
it is quite different from the issue that was placed
before him is to be found, I think, in his reliance
on the decision of the Public Service Staff Rela
tions Board in the Low and Duggan case as the
essential basis for his decision and the disposition
of the grievances. In his reference to several deci
sions the Adjudicator appeared to divide them into
two broad categories: those in which the employer
had required an employee to "liquidate" his vaca
tion leave in the current fiscal year and those in
which he had not. He then focused on an analysis
of the Low and Duggan decision in which the issue
was not whether an employer had made reasonable
efforts to comply with a request for leave carry-
over. One of the grievors in that case had request
ed leave carry-over but not within the time pre
scribed by the collective agreement, and the other
had not made any such request at all. The issue in
Low and Duggan was whether the employer had a
right to require an employee to "liquidate" a leave
credit in the current fiscal year, and whether such
an obligatory taking of leave, where there had
been no request for it, could be said to have been
"granted" or used within the meaning of the auto
matic carry-over provision corresponding to article
17.07, which reads as follows:
17.07 Carry-over Provision
Where in any fiscal year an employee has not been granted
all of the vacation leave credited to him, the unused portion of
his vacation leave shall be carried over into the following fiscal
year.
In the Board's reasons for decision in Low and
Duggan there are the following references to the
issue as understood by the Adjudicator and the
Board:
9. The issue in the grievances as seen by the adjudicator was
whether unused annual leave credits are to be carried over
automatically in accordance with Article 19.07 of the Clerical
and Regulatory Group collective agreement [which corresponds
to Article 17.07 in the present case] and Article 26.06 of the
Programme Administration Group collective agreement, or
whether such credits can be compulsorily liquidated at times
specified by the Employer by virtue of the provisions of Article
19.02 of the former collective agreement [which corresponds to
Article 17.03 in the present case] and Article 20.02 of the latter
collective agreement.
29. Turning now to the merits, the basic question raised by the
instant reference is whether or not the Employer has the
authority unilaterally to require an employee to use his
accumulated vacation leave credits in the fiscal year in which
they were earned and at times specified by the Employer.
33. Based on the language of Article 19 of CR agreement and
Article 20 of the PM agreement, we can see no valid grounds
for concluding that in order for an employee to be considered as
having "used" his vacation leave credits in the current fiscal
year, such leave must have been granted by the Employer on
the request of the employee. Rather, reading the "granting of
vacation leave" provisions of Articles 19.02(d) and 20.02(c)
together with the "carry-over" provisions of Articles 19.07 and
20.06 of the two collective agreements leads us to the conclu
sion that vacation leave credits are "used" by an employee
regardless of whether they are granted unilaterally by the
Employer or on the request of the employee. If the reference to
"the unused portion of his vacation leave" in Articles 19.07 and
20.06 is interpreted as meaning only those vacation leave
credits which the employee made no request to use in the
current year, Articles 19.02(d) and 20.02(c) serve no purpose.
36. In the result, we can find no limitation in the collective
agreement on the authority of the Employer in unilaterally
requiring the aggrieved employees to liquidate their unused
vacation leave credits at the times specified in the then current
fiscal year.
After quoting the last passage above and observ
ing that the decision in Low and Duggan was a
unanimous one by the seven member Board, the
Adjudicator in the present case said:
Given this unanimity, Mr. Brown's lengthy and clear analysis,
and my conclusion that I have before me a "like" case, the
grievances must fail. [Emphasis supplied.]
The Adjudicator then referred to other cases,
noting whether there was a direction by the
employer to liquidate vacation leave credits in the
current fiscal year, and concluded as follows:
In the result, the grievances are rejected. On the footing of
the analysis in Low and Duggan (168-2-56) I have found no
limitation in Article 17 of the Collective Agreement on the
authority of the Employer to unilaterally require the grievors to
liquidate their unused vacation leave credits in the current
fiscal year. But for this compulsion by the Employer, I would
have sustained the grievances as have my colleagues in adjudi
cation over the course of the years in the seven "carry-over"
cases to which I have referred. Neither Stewart (166-2-2001)
nor Lang (166-2-2430) are persuasive as they were decided
without reference to Low and Duggan.
The fact that the Adjudicator considered the
case before him to be like that of Low and Duggan
shows clearly, I think, that he misapprehended the
nature of the issue before him. In my view it
excludes an inference that he considered and dis
posed of the issue as to whether the employer had
made every reasonable effort to comply with the
request for leave carry-over, an issue that was not
before the Board in the Low and Duggan case for
the reasons that have been indicated. While the
Adjudicator makes reference to what was done
and said by the employer following the request by
the applicants for permission to carry over leave
credit, as well as to the citation by the employer of
cases on "reasonableness", it is significant, I think,
that he makes no reference to the contentions of
the grievors as to whether the employer had made
reasonable effort to comply with the request,
although contentions on this question were placed
before him on behalf of the grievors, as indicated
by the affidavit filed on their behalf. This is incon
sistent with a conclusion that he regarded these
contentions as reflecting the issue before him,
particularly in view of the well-established practice
of adjudicators to set out the contentions of both
parties at length in their reasons for decision. I
prefer not to entertain the possibility that the
Adjudicator disposed of the issue of "reasonable
effort" without an adequate consideration of the
grievors' contentions on this issue.
The only possible conclusions that I am able to
draw from the Adjudicator's reasons for decision
as to the view he took of the issue of "reasonable
effort" are (a) that he simply did not regard it as
the issue before him, which is the view suggested
by his expression of the issue at the outset of his
reasons and his reliance on Low and Duggan, or
(b) what perhaps amounts to the same thing in its
effect, he regarded the obligation under article
17.03(1)(c) to be overridden or displaced by the
management authority to require an employee to
take his vacation leave in the year in which it is
earned, which is possibly suggested by the words
"I have found no limitation in Article 17 of the
Collective Agreement on the authority of the
Employer to unilaterally require the grievors to
liquidate their unused leave credits in the current
fiscal year" in the conclusion of his reasons. If the
latter be the view he took, he was equally in error
in my opinion. The obligation in article
17.03(1)(c) to make every reasonable effort,
having regard to operating requirements, to
comply with a request for leave carry-over is in my
opinion a separate and distinct obligation and, as
such, a qualification of the general management
authority to require an employee to take his vaca
tion leave at a specified time in the fiscal year in
which it is earned. In either case the Adjudicator
mistakenly failed to deal with the issue that was
before him.
For these reasons I would set aside the
Adjudicator's decision and refer the matter back
for determination upon the basis that the issue
before him is whether the employer made every
reasonable effort, having regard to the operating
requirements of the service, to comply with the
request of the grievors that they be permitted to
use in the fiscal year 1977-78 the unused vacation
leave credit earned in the fiscal year 1976-77.
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.