Canada ( Attorney General ) v. Henneberry
T-1301-93
Pinard J.
28/10/94
7 pp.
Application to set aside Adjudicator's decision with respect to grievances alleging right to be compensated for overtime worked -- Respondents paid double time from 8 p.m. to midnight, time and a half from midnight to 2 a.m., double time from 2 a.m. to 7:45 a.m., straight time from 7:45 a.m. to 11 a.m. -- Adjudicator ruling correctly paid time and a half for hours between midnight and 2 a.m. because collective agreement providing first two hours of overtime worked on regular workday to be paid at time and a half, but should have been paid double time between 7:45 a.m. and 11 a.m. as hours worked in excess of ten hours in continuous period of work -- Respondents arguing Public Service Staff Relations Act, s. 101, privative clause protecting adjudicator's decision from judicial review, as long as decision within jurisdiction -- Application dismissed -- S. 101 applied although repealed on June 1, 1993, as facts of case, Board's decision, occurred while privative clause still in force -- Standard of review patent unreasonableness -- S.C.C. developing spectrum, ranging from standard of reasonableness to that of correctness in conjunction with judicial deference in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, most recent case on standard of review for decision of administrative tribunal -- Cases where tribunal protected by true privative clause, deciding matter within jurisdiction, no statutory right of appeal, at reasonableness end of spectrum, where deference at highest -- Cases where interpretation of provision limiting tribunal's jurisdiction (jurisdictional error), or statutory right of appeal allowing reviewing court to substitute its opinion for that of tribunal, tribunal having no greater expertise than court on issue (i.e. human rights) at correctness end of spectrum, where deference at lowest -- Act herein containing privative clause, adjudicator determining matter within jurisdiction since involving interpretation of collective agreement, no statutory right of appeal -- Case in labour relations context, where courts typically showing considerable deference -- Jones v. Canada (Treasury Board), [1994] 2 F.C. 393 (T.D.), noting significant deference should be accorded to decisions of PSSRB, particularly to adjudicators interpreting collective agreement -- Although Adjudicator erred in ignoring definition of "overtime" in collective agreement, decision not patently unreasonable -- Determined entitled to double pay between 7:45 a.m. and 11 a.m. notwithstanding regularly scheduled hours in that respondents worked more than 10 hours in continuous period of work (article 15.09(b) -- Focussed on use of "continuous period of work" to determine respondents entitled to rate of pay set by article 15.09(b) for those hours between 6 a.m. and 11 a.m., concluding even if continuous ten-hour period of work "overlapped" otherwise regularly scheduled work, respondents entitled to beneficial provisions of article 15.09 -- Even though adjudicator wrongly applied article 15.09 when ignored definition of "overtime", decision within jurisdiction, not clearly irrational -- No loss of jurisdiction (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941) -- Public Service Staff Relations Act, R.S.C., 1985, c. P-35, ss. 92, 101.