A-583-80
The Queen for the Treasury Board (Applicant)
v.
Benoît Charland, Paul-G. Tremblay, Gérald
Coude, Pierre Tremblay and Yvan De Foy
(Respondents)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, January 21 and 23, 1981.
Judicial review — Labour relations — Application to set
aside Adjudicator's decision upholding grievances made by
respondents following employer's refusal to pay them an
allowance for travelling expenses as provided for in collective
agreement — Adjudicator's ruling that respondents are en
titled to an allowance even though normal public transporta
tion services were available to them was based on employer's
previous decisions on similar matters — Application allowed
on ground that compensation is payable only where employee
is required to use other than normal public transportation
services — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28.
APPLICATION for judicial review.
COUNSEL:
Jean-Claude Demers for applicant.
Mario Létourneau for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Mario Létourneau, Montreal, for respond
ents.
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: The applicant asked this Court to set
aside, pursuant to section 28 of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, a decision of
an Adjudicator in accordance with section - 96 of
the Public Service Staff Relations Act, R.S.C.
1970, c. P-35. That decision upheld grievances
which had been submitted by respondents after
their employer refused to pay them an allowance
for travelling expenses.
Respondents are employed by the Department
of Transport at the Montreal International Airport
in Mirabel. In May and June 1979, they worked
overtime after their regular day's work. They then
used their cars to go home. Strictly speaking they
could, if they had wanted to, have returned home
by bus, but it is understandable that, having come
to work by car, they wanted to return in the same
way. Respondents then claimed from their employ
er the allowance provided for in paragraph (a) of
clause 25.07 of the collective agreement regulating
their conditions of employment. Under the terms
of this clause:
When an employee is required to work contiguous or non-con
tiguous overtime and is required to use other than normal
public transportation services, he shall be reimbursed for
reasonable expenses incurred as follows:
(a) mileage allowance at the rate normally paid to an
employee when authorized by the Employer to use his
automobile when the employee travels by means of his own
automobile,
or
(b) out-of-pocket expenses for other means of commercial
transportation.
The employer refused to pay the allowance
claimed, and this was the basis for the grievances
of respondents which were upheld by the decision
a quo.
Before the Adjudicator, the employer argued
that the grievances should be dismissed because
respondents had not proved that they met the two
conditions mentioned at the beginning of clause
25.07, namely that they were required "to work
... overtime" and that they were required as well
"to use other than normal public transportation
services". The Adjudicator dismissed this argu
ment. He held that, in the circumstances, respond
ents had established that they were required to
work overtime. I find nothing amiss with this part
of his judgment. He further held that respondents
were entitled to the allowance claimed despite the
fact that "normal public transportation services"
were available to transport them home.
The Adjudicator's ruling that respondents were
entitled to be compensated despite the existence of
a bus service was, if I understand the decision a
quo correctly, solely based on the fact that, in the
past, under collective agreements containing
clauses similar to clause 25.07, the employer had
always paid the transportation expenses of
employees who had worked overtime, even in cases
where the latter were not required "to use other
than normal public transportation services".
In arriving at this ruling, the Adjudicator
appears to have refused to apply clause 25.07 of
the collective agreement, and in my opinion this
constitutes an error of law. It is clear that the
compensation referred to in clause 25.07 is only
payable if the employee was "required to use other
than normal public transportation services". The
fact that, in the past, the employer had agreed to
compensate employees who did not meet this con
dition does not result in changing the collective
agreement or authorizing the Adjudicator to
ignore its provisions.
I would therefore allow the application, quash
the decision a quo and refer the case back to the
Adjudicator to be decided by him on the assump
tion that respondents are only entitled to the allow
ance they were claiming if they were required "to
use other than normal public transportation
services".
* * *
LE DAIN J. concurred.
* * *
HYDE D.J. concurred.
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.