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Decision of the Federal Court of Appeal: Delios v. Canada (Attorney General), 2015 FCA 117


Date: May 29, 2015

TO: EROs & Negotiators

FROM: Patrizia Campanella, Legal Counsel

SUBJECT: Delios and AG of Canada, 2015 FCA 117



This case involves an appeal of a Federal Court decision that quashed an order made by a labour adjudicator regarding the right of a member of PIPSC to request a personal day off as per article 17.21 of the Collective Agreement.

Delios worked for the CRA and was a member of the PSAC; on January she took a personal leave day invoking a clause of the PSAC collective agreement. Later the same month Delios was promoted to a new position within the CRA covered by PIPSC collective agreement. Delios applied for a personal leave day under the PIPSC collective agreement; the employer refused and she grieved the decision. The adjudicator ruled in favour of Delios. The AG applied for a Judicial Review and the decision was reversed, on the basis that the decision of the adjudicator was unreasonable.

The Federal Court of Appeal ruled that the decision of the adjudicator was reasonable, and found that the Federal Court had erroneously applied the standard of correctness, as opposed to observing whether the adjudicator has made a reasonable decision under the circumstances. The appeal was allowed, the decision of the Federal Court was set aside and Delios was granted costs.


In his decision, Judge Stratas explains that when a court is conducting a judicial review, it must observe whether a decision was within the decision maker’s margin of appreciation. This margin can be narrow or wide depending on the nature of the question and the particular circumstances of the case. In the case of collective agreements, the adjudicator is entitled to a wide margin of appreciation, given the complex nature of the issue.

Judge Stratas further explains that as per Dunsmuir v New Brunswick, 2008 SCC 9, the standard of reasonableness involves a respectful attention to the disposition of the decision maker, considering:

1. The issue before the adjudicator and the reasonableness of the interpretation of methodology or provisions related to the matter. And,

2. A reasonableness review that must meet two criteria: be acceptable and, be defensible on the facts and on the law.

To apply the reasonableness standard, the decision maker must abstain from developing his or her own views of the matter, and then consider any findings that are inconsistent with this view as unreasonable. Judicial review is about applying legal standards, not personal views.


The decision also deals with the issue of admission of new evidence at the judicial review stage. Judge Stratas specifies that while there are exceptions that permit the introduction of new evidence in this instance, the reviewing court cannot become a forum for fact findings on the merits of the matter. While new evidence can be admitted in order to summarize and explain the matter, it was found that evidence admitted and considered by the Federal Court was argumentative and spoke to the merits of the matter, therefore it should have been excluded.


The decision is instructive on the issue of appropriate standard of review.. In this case Judge Stratas gives great leeway to the original decision-maker to apply his or her views to reach a decision, as long as it is acceptable, defensible and reasonable under the particular circumstances of the case.

More practically, this decision also has implications for our members: Going forward, members can be advised to take leave entitlements when they move from one bargaining unit to another as long as there is no express restriction in the collective agreement limiting the entitlement when transferring from one group to another.

Publish Date: 29-MAY-2015 02:39 PM