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Labour (Fed) - Canada Labour Code (3). Canadian Pacific Kansas City Railway v. Arthur [personal leave]
In Canadian Pacific Kansas City Railway v. Arthur (Fed CA, 2026) the Federal Court of Appeal dismissed a labour JR, here brought against "the decision of the Canada Industrial Relations Board" which "dismissed CPKC’s appeal of a payment order of a labour affairs officer (LAO) with the Labour Program of Employment and Social Development Canada establishing Mr. Arthur’s "“regular rate of wages”" for one day of paid personal leave under Part III of the Canada Labour Code":[2] The issue before the Court stems from a 2019 amendment to the Code that permits employees to take up to five days of personal leave annually, the first three of which are paid leave days if the employee has completed three consecutive months of continuous employment with the employer: subsections 206.6(1) and (2) of the Code. The employee’s pay for the paid personal leave days is to be calculated at "“their regular rate of wages for their normal hours of work”": subsection 206.6(2) of the Code. If an employee’s daily hours of work vary, the employee must be compensated for a day of personal leave using either the average of their daily earnings for the 20 days of work immediately preceding the leave or the method set out in the collective agreement governing the relationship between the employer and employee: subsection 17(a) or (b) of the Canada Labour Standards Regulations, C.R.C., c. 986 (the Regulations).
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II. Relevant provisions of the Canada Labour Code
[8] For ease of reference, subsections 206.6(1) and (2) of the Code read as follows:"Personal Leave"
"Congé personnel"
"Leave – five days"
"Congé : cinq jours"
"206.6 (1) Every employee is entitled to and shall be granted a leave of absence from employment of up to five days in every calendar year for"
"206.6 (1)"" L’employé a droit, par année civile, à un congé d’au plus cinq jours pour les raisons suivantes :"
" (a) [Repealed, 2021, c. 27, s. 6]"
" a) [Abrogé, 2021, ch. 27, art. 6]"
" (b) carrying out responsibilities related to the health or care of any of their family members;"
" ""b)"" s’acquitter d’obligations relatives à la santé de tout membre de sa famille ou aux soins à lui fournir;"
" (c) carrying out responsibilities related to the education of any of their family members who are under 18 years of age;"
" ""c)"" s’acquitter d’obligations relatives à l’éducation de tout membre de sa famille qui est âgé de moins de dix-huit ans;"
" (d) addressing any urgent matter concerning themselves or their family members;"
" ""d)"" gérer toute situation urgente le concernant ou concernant un membre de sa famille;"
" (e) attending their citizenship ceremony under the ""Citizenship Act; and"
" ""e)"" assister à sa cérémonie de la citoyenneté sous le régime de la ""Loi sur la citoyenneté"";"
" (f) any other reason prescribed by regulation."
" ""f)"" gérer toute autre situation prévue par règlement"
"Leave with Pay"
"Rémunération"
"(2) If the employee has completed three consecutive months of continuous employment with the employer, the employee is entitled to the first three days of the leave with pay at their regular rate of wages for their normal hours of work, and such pay shall for all purposes be considered to be wages."
"(2)"" Si l’employé travaille pour l’employeur sans interruption depuis au moins trois mois, les trois premiers jours du congé lui sont payés au taux régulier de salaire pour une journée normale de travail; l’indemnité de congé qui est ainsi accordée est assimilée à un salaire." [9] In addition, subsections 17(a) and (b) of the Regulations provide that:"Regular Rate of Wages for Purposes of General Holidays, Personal Leave, Leave for Victims of Family Violence, Bereavement Leave and Medical Leave"
"Taux régulier de salaire pour les jours fériés, les congés personnels, les congés pour les victimes de violence familiale, les congés de décès et les congés pour raisons médicales"
"17 For the purposes of subsections 206.6(2), 206.7(2.1), 210(2) and 239(1.3) of the Act, the regular rate of wages of an employee whose hours of work differ from day to day or who is paid on a basis other than time shall be"
"17"" Pour l’application des paragraphes 206.6(2), 206.7(2.1), 210(2) et 239(1.3) de la Loi, le taux régulier du salaire d’un employé dont la durée du travail varie d’un jour à l’autre ou dont le salaire est calculé autrement qu’en fonction du temps est égal :"
" (a) the average of the employee’s daily earnings, exclusive of overtime hours, for the 20 days the employee has worked immediately preceding the first day of the period of paid leave; or "
" ""a) ""soit à la moyenne de ses gains journaliers, exclusion faite de sa rémunération pour des heures supplémentaires fournies, pendant les vingt jours où il a travaillé immédiatement avant le premier jour de la période de congé payé ;"
" (b) an amount calculated by a method agreed on under or pursuant to a collective agreement that is binding on the employer and the employee."
" ""b) ""soit au montant calculé suivant une méthode convenue selon les dispositions de la convention collective liant l’employeur et l’employé." ....
[12] The Board’s analysis addressed three questions: (1) the interpretation of section 17 of the Regulations; (2) whether the "“basic day”", as defined and used in the Collective Agreement, is a method of calculation agreed by the parties for the purpose of section 17(b); and (3) if not, whether the provisions of the Collective Agreement that provide for other types of paid leave, particularly bereavement leave, could be considered analogous to a provision establishing payment for personal leave.
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[31] For the reasons that follow, I find no error in the Board’s interpretation of section 17 of the Regulations that renders its analysis and conclusions unreasonable. Contrary to CPKC’s argument, the Board did not interpret the section as imposing a minimum payment entitlement in order for an agreed calculation method to fall within subsection 17(b). I will return to this argument later in these reasons in the context of the Board’s application of its interpretation of section 17 to the Collective Agreement.
[32] The Board properly interpreted section 17 of the Regulations by reviewing the text, context and purpose of the section, with attention to the context and purpose of Part III and, more specifically, section 206.6 of the Code: Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26 at paras. 37-38. The Board began by noting that the minimum labour standards set out in Part III of the Code are provisions of public interest that "“protect individual workers and create certainty in the labour market by providing minimum labour standards and mechanisms for the efficient resolution of disputes arising from its provisions”": Dynamex Canada Inc. v. Mamona, 2003 FCA 248 at para. 35, leave to appeal to SCC refused, 29932 (March 4, 2004).
[33] As discussed above, the Board referred to the introduction of section 206.6 to the Code in 2019 and stated that the "“personal leave provision is essentially aimed at mitigating the financial consequences of an absence from work due to specific personal obligations”": Decision at para. 42. Subsection 206.6(2) establishes an employee’s entitlement to three days of paid personal leave at their "“regular rate of wages for their normal hours of work”". The mechanism for calculating an employee’s pay entitlement for personal (and other) leave when the employee does not have a regular rate of pay is contained in section 17. The Board noted that the Regulatory Impact Analysis Statement accompanying the 2019 amendments to section 17 indicated that the object of the personal leave provision was, in part, to assist employees in achieving work-life balance.
[34] The Board rejected the argument put forward by the TCRC and Head that a collective agreement must set out a method of calculating the regular rate of wages specific to paid personal leave to fall within subsection 17(b). The Board found that the subsection contained no suggestion that the method of calculation must be specific to each type of leave within its scope (General Holidays, Personal Leave, Leave for Victims of Family Violence, Bereavement Leave and Medical Leave): "“[t]here is no language to this effect in section 17 of the ""Regulations”" (Decision at para. 50). The Board stated that such specificity is not required even when considering the overall purpose of the Code.
[35] The Board concluded its statutory interpretation as follows:[51] This provision recognizes that the parties to a collective agreement may have contemplated a method of calculating a regular rate of wages for certain circumstances. The collective agreement must be reviewed to determine whether the parties turned their minds to establishing a method of calculation for a regular rate of wages that would be applicable to personal leave.
[52] That said, in reviewing and assessing the method that may be established in the collective agreement, the Board must be cognizant of the overall objective of the paid leave, which is to minimize the financial and employment-related impacts on the employees requiring such leave. [36] In my view, these two paragraphs are the critical elements of the Board’s statutory interpretation, which the Board then applied to its review of the Collective Agreement and the basic day. I find that the Board did not read into the subsection any additional requirement, whether a minimum entitlement or a requirement for specificity. The Board reasonably analyzed the text of section 17 and declined to add to the plain text of subsection 17(b) a requirement that a collective agreement must include a provision that relates to personal leave specifically. The Board also refused to interpret subsections 17(a) and (b) as providing for a "“greater of”" calculation to avoid eviscerating Parliament’s purpose in enacting subsection 17(b) which highlights the importance of collective agreements. Finally, it is far from unreasonable for the Board to have identified the purpose and objective of section 206.6 and section 17 as necessary elements of its interpretation of subsection 17(b) and to have applied its interpretation of the two provisions purposively to its analysis of the Collective Agreement and the basic day.
[37] It follows that the Board’s interpretation of section 17 of the Regulations does not undermine employers’ and employees’ freedom to contract and to enter into collective agreements establishing their own terms and conditions of employment, as argued by CPKC. . Heatley v. International Association of Machinists and Aerospace Workers, District Lodge 14 [time ext for duty of fair rep]
In Heatley v. International Association of Machinists and Aerospace Workers, District Lodge 14 (Fed CA, 2025) the Federal Court of Appeal dismissed a labour JR, here brought against a decision where "the CIRB dismissed his duty of fair representation complaint because it was filed outside the 90-day time limit contained in subsection 97(2) of the Canada Labour Code":[2] That subsection provides that a complaint of this nature must be filed within 90 days from the date on which a complainant knew, or in the opinion of the Board ought to have known, of the circumstances giving rise to the complaint. The CIRB determined that the applicant knew of these circumstances when the respondent advised him that it would not advance his termination grievance to arbitration. As the applicant’s complaint was filed more than 90 days later, the Board concluded that the complaint was untimely. It also determined that it would not exercise its discretion to extend the 90-day time limit. In reaching these conclusions the CIRB relied on previous cases in which it had reached similar conclusions.
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[5] In essence, in this application, the applicant seeks to have this Court overturn the Board’s factual finding as to the date the applicant knew or should have known of the circumstances giving rise to his complaint and to re-make the discretionary decision to not extend the 90-day time limit. However, we cannot do either of these things as that would involve us substituting our views for those of the Board, which is the opposite of the deference reasonableness review requires.
[6] The applicant more specifically argues that the CIRB erred in declining to follow four prior cases that the applicant alleges involve identical or very similar facts where the Board reached different conclusions as to when a complainant has knowledge of the circumstances giving rise to his complaint, namely, Lang v. Canadian Union of Postal Workers, 2017 CIRB 848, Crouch v. B.R.C. (1983), 55 di 48, 1983 CarswellNat 555, 1983 CarswellNat 556, Brassard v. B.M.W.E. (1993), 92 di 67, 1993 CarswellNat 1829, 1993 CarswellNat 1828 and Startek v. I.B.T., Local 938, 38 di 228, 1979 CarswellNat 757, 1979 CarswellNat 758. We disagree as these cases turn on their facts, which are markedly different from those in the present case. More importantly, factual determinations as to when the 90-day time period to file a complaint starts to run are for the Board and not this Court to make. . Juzda v. Canada (Attorney General)
In Juzda v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an applicant's appeal, here from a dismissed JR against "a decision rendered by the Official Delegated by the Head of Compliance and Enforcement (Head) at the Labour Program of Employment and Social Development Canada (ESDC)".
The court considers s.128 ['Refusal to work if danger'] and 129 ['Head’s investigation'] of the Canada Labour Code, here where the employee alleged that the employer's COVID precautions "were insufficient to create a safe work environment or to discharge the employer’s obligations under the Code":[1] Mr. Juzda appeals from a judgment of the Federal Court (2025 FC 63) dated January 13, 2025, dismissing his application for judicial review of a decision rendered by the Official Delegated by the Head of Compliance and Enforcement (Head) at the Labour Program of Employment and Social Development Canada (ESDC). The Head concluded that Mr. Juzda’s refusal to work was frivolous pursuant to paragraph 129(1)(b) of the Canada Labour Code, R.S.C. 1985, c. L-2 and did not require further investigation.
[2] Mr. Juzda’s refusal to work was initiated pursuant to subsections 128(1) and 128(6) of the Code on March 3, 2023. The refusal was based on Mr. Juzda’s continuing concerns regarding the COVID-19 pandemic and followed the implementation by his employer, Elections Canada, of the Treasury Board Secretariat (TBS) directive requiring government employees to return to work at their office location at least two days per week. Mr. Juzda alleged that COVID-19 was a highly contagious airborne illness that could have long-term effects and that, while his employer’s precautions met the minimum standards set by the TBS, they were insufficient to create a safe work environment or to discharge the employer’s obligations under the Code.
[3] The Employer Report prepared pursuant to subsection 128(7.1) of the Code, and the Employee Workplace Committee Report, prepared pursuant to subsection 128(10.1) of the Code, both concluded that Mr. Juzda’s allegations of danger were without basis. Mr. Juzda maintained his refusal to work, and the matter was referred to the Head pursuant to subsection 128(16) of the Code.
[4] On November 1, 2023, the Head determined that Mr. Juzda’s refusal to work was frivolous in the sense that it lacked legal basis or legal merit, had little prospect of success, or was not serious or reasonably purposeful. The Head found in particular that Mr. Juzda’s concerns regarding his health were speculative and hypothetical, and that he did not consider the control measures his employer put in place, which adhered to governmental safety guidelines and were frequently assessed and communicated to all staff.
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[7] The decision not to investigate a refusal to work pursuant to paragraph 129(1)(b) of the Code involves a broad exercise of discretion in a process that is neither adjudicative nor adversarial in nature and which is intended to screen out work refusals expeditiously (Duiker v. Canada (Attorney General), 2024 FCA 195 at para. 12; Gupta v. Canada (Attorney General), 2017 FCA 211 at para. 31; Duiker v. Canada (Attorney General), 2023 FC 701 at paras. 54, 67, 75; Burlacu v. Canada (Attorney General), 2022 FC 1223 at para. 21). As such, one cannot expect the Head to provide as full and as detailed reasons as one would expect from adjudicative tribunals (Goldberg v. Canada (Attorney General), 2024 FC 1046, at paras. 2, 17, 20, 27-28).
[8] I am also satisfied that the reasons sufficiently grapple with the key concerns raised by Mr. Juzda in his refusal to work. Although it is unfortunate that the Head’s reasons mention only the notion of "“imminent danger”", the failure to refer to the "“serious threat”" posed by a return to the workplace as raised by Mr. Juzda does not render the decision unreasonable. The Head had the benefit of the earlier Workplace Committee Report, which considered Mr. Juzda’s allegations and found that no imminent danger or serious threat had been identified. I also note that Mr. Juzda had not claimed that his workplace was subject to any specific risk greater than the risk elsewhere in the government or society in general. In my view, his refusal to work stemmed more from a disagreement about the adequacy of the policies and safety recommendations adopted by the governmental authorities in response to their assessment of the threat posed by COVID-19, than from an allegation that a "“serious threat”" existed in light of circumstances specific to him or his workplace. . Fearing v. Gardaworld Cash Services Canada Corporation [CLC limitations]
In Fearing v. Gardaworld Cash Services Canada Corporation (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, this against a CIRB ruling that a Labour Affairs Officer was correct when they held "that Mr. Fearing’s complaint for the non-payment of certain wages, made under subsection 251.01(1) of the Canada Labour Code, R.S.C. 1985, c. L-2, was outside the six-month limitation period set out in paragraph 251.01(2)(a) of the Code":[2] In this case, the Board had to make just one factual finding: the date of Mr. Fearing’s complaint. With that finding, it could apply the six-month statutory limitation period and decide whether Mr. Fearing’s complaint was timely.
[3] The Board did exactly that. It found that Mr. Fearing did not make the complaint about unpaid wages for the period of April 8, 2019 to April 17, 2019 until August 22, 2020, well beyond the six-month statutory limitation period in paragraph 251.01(2)(a) of the Code. Mr. Fearing’s complaint was not timely.
[4] The Board also found, reasonably, that there was no statutory basis on which the Board could have extended the limitation period for Mr. Fearing to make the complaint. The clear and unambiguous text of subsection 251.01(3) of the Code confirms that no extension of time was available on these facts.
[5] Mr. Fearing submits that the Board should have granted an extension of time for his wage complaint because it was an ongoing violation of the collective agreement or could have been part of a civil action. His submission is without merit. Under subsection 251.01(3) of the Code, the Board had no power to extend the time for Mr. Fearing to make a subsection 251.01(1) complaint on those grounds.
[6] Overall, the Board identified and applied the relevant statutory provisions, reviewed the evidence before it, considered Mr. Fearing’s arguments, and rendered a decision that was substantiated, rational, logical and supported by the evidence.
[7] The Board considered this matter without an oral hearing. It had the power to do so under section 16.1 of the Code and, given the simplicity of this case, it was justified in doing so. Reviewing this record, we see no other procedural grounds for interfering with the Board’s decision. Mr. Fearing was aware of the case to meet and had a full opportunity to meet it.
[8] In oral argument, Mr. Fearing submits that his complaint was not a wage complaint under the Code but rather was a complaint against a training practice of the employer. This is at odds with the information he provided to the Board on his complaint form and what he wrote in paragraph 8 of his memorandum of fact and law. In our view, it was open to the Board to characterize his complaint as a wage complaint under the Code, one subject to the six-month statutory limitation period in paragraph 251.01(2)(a) of the Code. That characterization was reasonable. . Canadian Pacific Railway Company v. Canada (Attorney General)
In Canadian Pacific Railway Company v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal comments on the role of the Canada Labour Code:[1] The Canadian Pacific Railway Company is a federally regulated employer. As such, it is required to comply with the provisions of the Canada Labour Code, R.S.C. 1985, c. L-2, including the provisions of Part II of the Code that govern occupational health and safety in federally regulated workplaces. Of particular relevance to this application is subsection 134.1(1) of the Code, found in Part II, that requires CP to establish a Policy Health and Safety Committee (Committee) "“[f]or the purposes of addressing health and safety matters that apply to [CP’s] work, undertaking or business”". . Canada (Attorney General) v. Monette
In Canada (Attorney General) v. Monette (Fed CA, 2024) the Federal Court of Appeal allowed a Crown JR, here from a CIRB decision involving the unpaid wage provisions of the Canada Labour Code which the court found 'unreasonableness' for it's lack of thoroughness:[17] Section 251.18 of the Code reads as follows:251.18 Directors of a corporation are jointly and severally liable for wages and other amounts to which an employee is entitled under this Part, to a maximum amount equivalent to six months’ wages, to the extent that
(a) the entitlement arose during the particular director’s incumbency; and
(b) recovery of the amount from the corporation is impossible or unlikely." "
251.18 Les administrateurs d’une personne morale sont, jusqu’à concurrence d’une somme équivalant à six mois de salaire, solidairement responsables du salaire et des autres indemnités auxquels l’employé a droit sous le régime de la présente partie, dans la mesure où la créance de l’employé a pris naissance au cours de leur mandat et à la condition que le recouvrement de la créance auprès de la personne morale soit impossible ou peu probable. [18] Section 154 of the BCA provides as follows:154. Directors of a corporation are solidarily liable to the employees of a corporation for all debts not exceeding six months’ wages payable to each such employee for services performed for the corporation while they are directors of the corporation respectively.
154. Les administrateurs de la société sont solidairement responsables envers ses employés, jusqu’à concurrence de six mois de salaire, pour les services rendus à la société pendant leur administration respective.
However, a director is not liable unless the corporation is sued for the debt within one year after it becomes due and the notice of execution is returned unsatisfied in whole or in part or unless, during that period, a liquidation order is made against the corporation or it becomes bankrupt within the meaning of that expression in the Bankruptcy and Insolvency Act (R.S.C. 1985, c. B-3) and a claim for the debt is filed with the liquidator or the syndic.
Toutefois, leur responsabilité n’est engagée que si la société est poursuivie dans l’année du jour où la dette est devenue exigible et que l’avis d’exécution du jugement obtenu contre elle est rapporté insatisfait en totalité ou en partie ou si la société, pendant cette période, fait l’objet d’une ordonnance de mise en liquidation ou devient faillie au sens de la Loi sur la faillite et l’insolvabilité (L.R.C. 1985, c. B-3) et qu’une réclamation de cette dette est déposée auprès du liquidateur ou du syndic. ....
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