FPSLREB Decisions

[1]    The grievor, Dr. Jerome Katchin, grieves the decision of his employer, the Canadian Food Inspection Agency (CFIA), to deny his request for reimbursement of membership fees to the College of Veterinarians of Ontario (CVO) for the years 2001 and 2002.

[2]    The parties agreed on a statement of facts, which was filed as Exhibit G-1. This agreed statement of facts reads as follows:

THE PARTIES AGREE TO THE FOLLOWING FACTS AND AGREE THAT EITHER PARTY MAY INTRODUCE ADDITIONAL EVIDENCE AT THE HEARING ON THESE MATTERS;

1. Dr. Katchin currently holds a position as a VM-01 (veterinarian medicine -01) in the Meat Hygiene program and he is employed by the Canadian Food Inspection Agency (CFIA). He is in the Veterinary Medicine (VM) Group bargaining unit.
2. Dr. Katchin filed two grievances, one on July 9^th and one on July 11^th, of 2002. The grievances refer to Article E2.01 which states;

"The Employer shall reimburse an employee for his payment of membership or registration fees to an organization or governing body when the payment of such fees is a requirement for the continuation of the performance of the duties of his position."

Dr. Katchin also relied on Article A1.02 in his grievance hearings. It states;

"The parties to this agreement share a desire to improve the quality of the Canadian Food Inspection Agency, to maintain professional standards and to promote the well-being and increased efficiency of its employees to the end that the people of Canada will be well and effectively served. Accordingly, they are determined to establish within the framework provided by law, an effective working relationship at all levels of the Canadian Food Inspection Agency in which members of the bargaining units are employed."

3. The CVO is a provincial body that, among other things, licenses veterinarians to work within the province of Ontario. Similar organizations are found in the different provinces.
4. The Agency has responded to the grievance presentations with the position that having a CVO license is not a requirement for the continuation of the duties of Dr. Katchin's position. It is the CFIA's position that Dr. Katchin only need to be eligible for licensing.
5. The CFIA is no longer a Treasury Board employer. They are now an independent Agency, however, some Treasury Board Policies and Procedures are still enforced by the CFIA.
6. The CFIA is listed under Schedule I, Part II of the Public Service Staff Relations Act and Schedule II of the Financial Administration Act.

[3]    Dr. Katchin paid $561.75 ($525.00 for renewal cost and $36.75 for GST) for the renewal of his general license of veterinarian to the CVO on November 30, 2000, for 2001, and the same amount on November 30, 2001, for 2002. He submitted claims for reimbursement on May 31, 2001 and July 7, 2002, to his employer. These claims were denied by the employer, who gave the following explanations on July 10, 2002 (Exhibit G-7):

Further to your request for re-imbursement for membership fees paid to the College of Veterinarians I am advised that "effective November 1, 2002 employees shall be re-imbursed for their membership fee paid to a regulatory body governing the practice of Veterinary Medicine to a maximum of eight hundred ($800.00) dollars, for fees that become due for 2003."

In as much as your request for reimbursement is outside of this time frame I must advise you that your request cannot be granted.

[4]    The first paragraph of the employer's memorandum is related to paragraphs E2.02(a) and (b) added in the collective agreement signed on May 27, 2002. Those paragraphs read as follows (Exhibit G-2):

**
(a)   the Employer shall reimburse an employee for his/her membership fee paid to a regulatory body governing the practice of Veterinary Medicine, to a maximum of eight hundred dollars ($800.00).

**
(b)   effective November 1, 2002 upon receipt of proof of payment, the reimbursement referred to in (a), will commence for fees that become due for 2003.

[5]    The CFIA is structured in three different programs: (1) meat hygiene, (2) animal health, and (3) animal disease research. Dr. Katchin worked for the meat hygiene program at the Maple Lodge Farm, which is a slaughterhouse for poultry. The summary of the position description of a veterinarian officer in the meat hygiene program states as follows (Exhibit E-8):

Under the general supervision of the Veterinarian in Charge of a registered establishment, implements and enforces the meat hygiene program and provisions of the Meat Inspection Act and Regulations, the Animal Disease and Protection Act and Regulations, the Food and Drugs Act and Regulations, the Consumer Packaging and Labelling Act and Regulations, and the Canada Agricultural Products Act and Regulations in a registered establishment engaged in the slaughter, dressing, packaging and grading of food animals;

      Monitors and performs daily ante mortem inspection of animals presented for slaughter;

      Directs and controls routine procedures for postmortem inspection of internal organs and carcasses of slaughtered meat food animals;

      Monitors the inspection of general plant operating practices and sanitary conditions;

      Provides a consultative service concerning meat hygiene, sanitation and operational practices in the plant, and related activities;

      Functionally supervises the work of primary products inspectors, and veterinarians in training; instructs, and monitors the development of, junior veterinarians an primary product inspectors in training;

      Performs other duties.

[6]    Dr. Katchin, in his testimony, specified that he has to implement and enforce the Health of Animals Act, which replaced the Animal Disease and Protection Act listed in the position description. More specifically, the President of the CFIA can designate him as an inspector under the Health of Animals Act for the purposes of the Act (section 32). An inspector may exercise any of the powers and any of the duties or functions of the Minister under the Act (section 33) and may dispose of an animal suspected of being affected or contaminated (section 48). The word "dispose" was defined as including slaughter or otherwise destroy, bury or render an animal.

[7]    In the pursuit of that mandate, the inspector may need to prescribe, purchase or inspect controlled substances such as Pentobarbital, Phenobarbital or other euthanasia solutions (T-61) to euthanize animals. If the inspector is not a registered veterinarian within a regulatory body governing the practice of veterinary medicine, such as the CVO, he is not allowed to supply or use those controlled substances (Controlled Drugs and Substances Act and regulations).

[8]    The statement of qualifications for a veterinary officer assigned to the meat hygiene program specifies the occupational certification requirement as follows (Exhibit E-1):

Occupational Certification:
Eligibility for membership in a Canadian veterinary association. Defined as: current members of a Canadian veterinary association with a license recognized by the Canadian Veterinary Medical Association; and non-members of Canadian veterinary associations holding a Certificate of Qualification granted by the National Examining Board (NEB) of the CVMA. This means possession of/or eligibility for an unconditional general license that constitutes acceptable evidence of occupational competence and that is granted by an organization legally established by federal, provincial or territorial law as a certifying or licensing body. Eligibility means that a candidate has met all academic and occupational requirements with respect to degrees, examinations etc., without having to have obtained or maintained actual registration, certification or membership. Eligibility for an unconditional general license as a Veterinarian also includes the mandatory requirement of successful completion of the National Examination Board (NEB) examinations (Parts A & B, as well as Part C for foreign-trained applicants). A copy of your degree, as well as proof of successful completion of the NEB examinations (Parts A & B, and Part C for foreign-trained applicants), is required. In circumstances where an applicant does not have proof of completion of the NEB examinations, certification from the appropriate provincial licensing body that the candidate is eligible for licensing by the association, is required.

[9]    At the request of the CFIA, Dr. Katchin was part of a selection board to screen candidates for veterinarian officer positions. At that time, he was directed to eliminate candidates who were not licensed within a regulatory body governing the practice of veterinary medicine. For him to proceed that way made the licensing a requirement to be hired as a veterinarian officer by the CFIA.

[10]    The "Membership Fees" policy of the Treasury Board of Canada Secretariat (Exhibit G-9) applies to the CFIA. The policy specifies the following:

Policy Requirements
The Deputy Head may designate the authority to approve memberships which are a federal statutory requirement of a position. Such memberships are not only payable where the employee actively practices professional duties that cannot be legally carried but unless the incumbent is an active member of a recognized professional body. (See Appendix A (a))
&133;

Appendix A - Types of Memberships
Professional and quasi-professional memberships

For the purpose of this policy, there are basically three types of memberships that can be held in the name of an individual, namely, those required by federal statute in order for an individual to perform the duties of their profession; other professional related memberships; and those that are of a corporate rather than with a professional association nature that must be held in the name of an individual.

A. Statutory

The only instances in which it is absolutely necessary for a federal employee to be licensed or registered are those in which the requirement is established by federal statute such as, the Food and Drug Act. The only occupational groups affected by these statutes are: Dentistry, Land Survey, Law, Medicine, Pharmacy and Veterinary Science, and this applies only to those individuals actively practicing their respective professions in those occupational groups. In accordance with this policy, such fees are reimbursed and no T-4A Supplementary is issued in these cases. Memberships are not paid to employees in these occupational groups who are working in an administrative capacity or who are working in a related field but outside the above occupational groups.

[11]    Dr. Katchin testified that he was aware that the CFIA veterinarian officers were involved in the 2003 Bovine Spongeform Encephalopathy (BSE) crisis that occurred in Alberta in 2003. Some veterinarian officers came from the meat hygiene program. They were required to euthanize animals by lethal injection of Pentobarbital and may also have used analgesics such as Rompun.

[12]    For one month in November 2003, Dr. Katchin was assigned to the animal health program within the strike contingency plan (Exhibit G-12). Under these circumstances, he could be required to go to the airport and be called upon to slaughter animals, but this did not occur.

[13]    Dr. Katchin refused to volunteer during the outbreak of the mad-cow chronic disease in Saskatchewan in 1997. If he had volunteered, he would have been called upon to euthanize animals.

[14]    Expert documents were signed by Dr. Katchin for export before the year 2000. After that, the CFIA asked the veterinarians to stop doing so.

[15]    Dr. Sergey Melnichowk works as a veterinarian inspector for the meat hygiene program at Maple Lodge Farm, in a VM-01 position. In the past, he worked at the airport and was required to euthanize animals with lethal injections. He was also requested to sign expert documents for exportation purposes, as a veterinarian.

[16]    Dr. Melnichowk's salary was increased some time after his hiring when he found out that he was paid at a lower level because the employer had not taken into consideration the fact that he had a CVO license.

[17]    Jim Crawford testified for the employer. He stated that the veterinarian officers at the Maple Lodge Farm do not have to euthanize animals and proceed to post-mortem and anti-mortem inspections. A CVO license is not necessary to perform the duties of a veterinarian officer assigned to the meat hygiene program. The loss of a veterinary license will not interfere with employment at the CFIA.

[18]    According to Mr. Crawford, the veterinarian officers sign export certificates and review import certificates and permits. If a disease outbreak occurred and was reported, the Animal Health Office would have to respond to the call and ask a veterinarian of the CFIA to review and confirm the diagnosis. A field operation group is responsible for an "Emergency Regional Team" (ERT), which will take care of the problem. The ERT will go over to the site to be sure that the infected animals will be destroyed. The owners of the sick animals are responsible for destroying them but if they do not proceed with it, the CFIA will seize the animals and destroy them.

[19]    Mr. Crawford stated that the veterinarian officers have to be eligible for a license as a veterinarian. The candidates for that position have to show that they meet academic standards with respect to degrees and examinations and the mandatory requirement of successful completion of the NEB examinations. He specified that it is not a requirement of the veterinarian officer's position to be a member or to be registered with a regulatory body governing the practice of veterinary medicine. Keeping such a membership or registration active is not a requirement either to continue performing the duties of this position.

[20]    In cross-examination, Mr. Crawford stated that the CFIA gives the mandate to butchers and slaughterhouses to destroy animals in cases such as the disease outbreak that occurred in Alberta in the year 2000. In 2002, some veterinarian officers volunteered to go to the airport and proceeded to carry out the euthanasia of sheep. Mr. Crawford specified that health animal supervisors do it. In similar circumstances, Mr. Crawford will proceed by requesting volunteers to do it among the veterinarian officers and if they refuse, he will make the decision to have the animals destroyed. If the veterinarian officers refuse to proceed with euthanasia, the CFIA will hire private practitioners or butchers to proceed with the eradication. According to Mr. Crawford, a veterinarian officer does not need a license to euthanize an animal.

[21]    Dr. Faisal Bedwei testified that it is not a requirement to have a provincial license to be hired as or to continue to perform the duties of a veterinarian officer and to enforce the acts specified in the position description. According to the witness, a veterinarian should have a license to purchase the drugs used in euthanasia but not to euthanize animals. In emergency situations, the veterinarian officers in the meat hygiene program will have to euthanize animals.

[22]    In the spring of 2003, the CFIA played an active role in the eradication of the herd; veterinarian officers proceeded with the euthanasia by lethal injections.

[23]    Dr. Bedwei confirmed that a veterinarian officer does not need a license to fulfill the requirements outlined in the statement of qualifications but has to meet the academic and occupational requirements.

Arguments

For the Grievor

[24]    Clause E2.01 of the collective agreement specifies that the employer shall reimburse membership or registration fees when it is a requirement for the continuation of the performance of the duties of the position. This clause means that some employees will need a license to perform their duties; otherwise, this clause is not necessary. The issue in the present case is to determine if a license of veterinary medicine is a requirement for a CFIA veterinarian officer.

[25]    In the decision rendered in Bertrand (PSSRB File Nos. 166-2-16666 and 16667 (1988) (QL)), Deputy Chairman M. Korngold Wexler stated that in decisions dealing with the interpretation of the nurses' collective agreement and the reimbursement of professional fees, the facts in each case have to be taken into consideration. In the present file, the adjudicator will have to decide if it is necessary to be licensed to perform the duties of a veterinarian officer at the CFIA.

[26]    In Harper v. Canadian Food Inspection Agency, 2002 PSSRB 87, Deputy Chairperson Evelyne Henry took into consideration the specific duties that Dr. Harper had to perform and made the evaluation whether a license was required to do so. The same approach should be applied in the present file.

[27]    The Controlled Drugs and Substances Act states that controlled substances such as Pentobarbital and Phenobarbital cannot be obtained, be in the possession of or be administered by a person except by a practitioner (meaning a person who is registered under the laws of the province to practice in the province the profession of medicine, dentistry or veterinary medicine). Under the Food and Drugs Act, it prescribes that no person can sell or distribute drugs described in Schedule F such as Rompun (an analgesic sedative). The Food and Drugs Regulations state that controlled drugs such as Pentobarbital and Phenobarbital can be supplied to practitioners and can be administered by a practitioner who is registered and entitled to practice in the province.

[28]    Dr. Katchin explained in his testimony that he has to implement and enforce the Health of Animals Act (replacing the Animal Disease and Protection Act). In doing so, he can be called upon to dispose of animals, including euthanizing them if necessary. The evidence shows that veterinarian officers are called to euthanize animals by lethal injection on different occasions. They have to do so in the Animal Health Office in Brampton and when they work at the airport or for the BSE disease outbreaks, which occurred in Alberta in 2003, or in the eradication of a herd of sheep at the airport in 2002.

[29]    The veterinarian officers can be called upon to proceed with euthanasia during an outbreak of disease, as in the case of mad-cow chronic disease in Saskatchewan in 1997, when Dr. Katchin was requested to volunteer. In the strike contingency plan in November 2003, Dr. Katchin was assigned and could have euthanized animals by lethal injections.

[30]    Mr. Crawford stated in his testimony that euthanasia was performed by veterinarian officers who volunteer. In Harper (supra), the adjudicator did not accept that argument, stating that Dr. Harper was not volunteering to use her OVC license but was performing her job in accordance with the professional standards of her profession.

[31]    Dr. Melnichowk indicated that he was required, in the past, to purchase and administer Phenobarbital to euthanize sheep in a farm north of Brampton and pigeons at the airport. He never specified that he was volunteering, but was applying the Act.

[32]    Dr. Bedwei specified that veterinarian officers have to use drugs in emergency outbreak disease situations to eradicate infected animals. All veterinarian officers can be called upon in emergency situations, as Dr. Katchin was called upon during the mad-cow chronic disease in Saskatchewan in 1997. If he had done so, he would have to euthanize animals.

[33]    Clause A1.02 of the collective agreement was included to outline the high standard required of the CFIA in serving the people of Canada effectively. For the protection of the public and of animals, it is necessary for the veterinary officers to be licensed to be able to deal with an outbreak of disease and proceed during emergencies to the euthanasia of animals.

[34]    The only difference between being licensed and being admissible for a license is the payment of the fee of $561.75. The CFIA requires all qualifications for veterinarians but does not want to pay for the licensing fees. Dr. Katchin was directed to eliminate candidates who had no license when he acted on a selection board.

[35]    The adjudicator in Chorney (PSSRB File Nos. 166-2-14644 and 166-2-14656 (1985) (QL)), added the following comment, which can be considered in the present case:

It appears to me that the statutory requirement that nurses be required to retain their membership in their respective professional nurses association is sound public policy and serves the public interest. These professional associations are the guardians of the standards of professional practice by reason, inter alia, of their statutory power to discipline or to withhold from an incompetent person the right to practice nursing. The existence of these associa [sic] with such power cannot but provide greater assurance to the public that a person in good standing can be relied upon to have the professional competence to provide a standard of nursing care that gives the patent a reliable sense of security and confidence. I would not wish anyone to be placed in the position where health care services were provided by persons who were not required by law to be subject to disciplinary proceedings in the event of failing to perform, at certain minimum levels of competence. In my view then, the legal requirement to remain a member in good standing of a governing nurses' professional organization as a condition of employing a person in that professional capacity is essential for the protection of all human beings in our society and in the public interest.

[36]    In Harper (supra), Deputy Chairperson Evelyne Henry concluded as follows:

The employer requires Dr. Harper to be eligible for a veterinarian license and employs her for her knowledge and expertise but refuses to reimburse her for her annual OVC registration fees. This, in view of the evidence before me, is contrary to the principles enunciated in clause a1.02 above.

As a professional veterinarian, Dr. Harper has to make decisions that involve the health and lives of animals. This is what her duties call for. When she chooses to euthanize an animal or use a specific drug to restrain an animal to perform certain procedures, she is not volunteering to use her OVC license; she is performing her job in accordance with the professional standard of her profession.

[37]    Dr. Katchin testified that he has to enforce federal acts and may be required to use controlled drugs under the Controlled Drugs and Substances Act and the Food and Drugs Act and regulations. Under those acts, Dr. Katchin requires a veterinarian license to use Pentobarbital, Phenobarbital, T-61 euthanasia solutions and Rompun in the performance of his duties. Consequently, the CFIA violated clause E2.01 of the collective agreement by not reimbursing his registration fees.

[38]    The grievor's representative submitted that the decision rendered in Gajadharsing and others (PSSRB File Nos. 166-2-16812 to 16815 and 166-2-17674 (1989) (QL)) can be applied in the present case, notwithstanding that the grievors were nurses.

For the Employer

[39]    The grievor has to fulfil the burden of proof in relation to clause E2.01 of the collective agreement, which specifies that the employer has to reimburse an employee for his payment of license fees when the license is a requirement for the continuation of the performance of the duties of his position. Dr. Katchin is a veterinarian officer assigned to the meat hygiene program at Maple Lodge Farm.

[40]    The language used by the parties in clause E2.01 is clear, and the employer has an obligation to reimburse an employee for his license fees only if the license is a requirement for the continuation of the performance of the duties of his position. The decision rendered by Deputy Chairperson Evelyne Henry in Harper (supra) confirms that interpretation. The new clause E2.02, added in the collective agreement signed on May 27, 2002, recognizes that not all veterinarian officers need a license to perform their specific duties. If it is not so, why did the parties need clause E2.02?

[41]    An emergency situation cannot be anticipated and in a highly critical situation all the veterinarian officers will not have to proceed with euthanasia. The employer admits that a veterinarian license is needed to perform euthanasia or to use controlled drugs. The employer determines the requirements of a position and the Board cannot interfere and determine what should be the requirements for Dr. Katchin's position. The following section of the Canadian Food Inspection Act specifically gives the President of the CFIA the authority for staffing and to assign duties:

13.(1) The President has the authority to appoint the employees of the Agency.

      (2) The President may set the terms and conditions of employment for employees of the Agency and assign duties to them.

      (3) The President may designate any person or class of persons as inspectors, analysts, graders, veterinary inspectors or other officers for the enforcement or administration of any Act or provision that the Agency enforces or administers by virtue of section 11, in respect of any matter referred to in the designation.

[42]    Dr. Katchin's position in the meat hygiene program at Maple Lodge Farm does not require him to have a license. His principal duties are to proceed to anti-mortem and post-mortem evaluations. In the performance of his duties, Dr. Katchin does not have to use drugs or euthanize animals.

[43]    The Federal Court of Appeal in The Queen in right of Canada v. M. Lefebvre et al. and Professional Institute of the Public Service of Canada and Public Service Staff Relations Board, [1980] 2 F.C. 199, specified that the statutes adopted by a provincial legislature cannot limit the powers of the federal government to choose its employees. The Honourable Judge Pratte voiced the opinion of the Court as follows:

When this appeal was heard respondents did not dispute that they were employees of the federal government, appointed to their positions in accordance with federal statutes to perform duties within federal jurisdiction. That being so, applicant argued that respondents could have performed the duties without being members of the Order of Chemists of Quebec, because the statutes adopted by a provincial legislature cannot limit the power enjoyed by the federal government to choose whomever it will to perform the administrative functions falling within its jurisdiction.

In my opinion this is a sound argument. The performance by the federal government of the administrative functions pertaining to it requires that there be a federal Public Service. The power to regulate hiring of its employees, like that of regulating their working conditions [See Note 3 below], seems to me to belong exclusively to the federal Parliament. It is for this reason that, in my opinion, statutes such as the Professional Code and the Professional Chemists Act cannot be applied to federal employees on account of acts which they perform in the course of their duties. If that were not so, it would amount to saying that each of the ten provinces could establish as it saw fit the standards of competence that the federal government should meet in hiring its personnel. I cannot accept such a conclusion.

[44]    This opinion can be applied in the present case. The Ontario provincial statutes related to the veterinarians cannot be applied to CFIA employees on account of acts that they perform in the course of their duties. Dr. Katchin agreed in his testimony that he was appointed in accordance with federal statutes to perform duties within federal jurisdiction.

[45]    The desire of the parties to improve the quality of the CFIA services specified in clause A1.02 of the collective agreement is of high importance. But this clause did not change clause 2.01 and render licensing a requirement of Dr. Katchin's position.

[46]    The duties listed in the position description for a veterinary officer in the meat hygiene program did not require Dr. Katchin to be licensed. The "Membership Fees" policy states that membership fees are payable where the employee actively practices professional duties that cannot be legally carried out without a license. In the present case, the employer admits that a license is necessary to euthanize animals and to administer controlled drugs, but Dr. Katchin does not have to do so in the performance of his duties.

[47]    In Rosendaal et al., Lovallo and Sanderson (PSSRB File Nos. 166-2-22291, 166-2-23143 and 23144 (1993) (QL)), the adjudicator stated:

For these grievances to succeed, the grievors had to demonstrate that the maintenance of their professional designation is a continuing requirement for the performance of their duties.

[48]    The same principle was applied in Muller and Williams v. Canada Customs and Revenue Agency, 2002 PSSRB 19, by Vice-Chairperson J.W. Potter. This principle should be applied in the present case and the adjudicator should deny the grievance, the grievor not having demonstrated that the license is a requirement for the continuation of the performance of the duties of his position.

[49]    The actual position of Dr. Katchin did not require him to have a license. In the decision rendered in Harper (supra), the Deputy Chairperson Henry specified that it is not a requirement for all veterinary officers to have a license to perform their duties but found that Dr. Harper needed one because she had to euthanize animals and use controlled drugs. It is not the situation in the present case.

[50]    The CFIA asked Dr. Katchin if he would volunteer to go to Saskatchewan during the outbreak of the mad-cow chronic disease in 1997. But that request did not change the requirements of his position in the meat hygiene program at Maple Lodge Farm, notwithstanding that if he agreed to go there, he would be entitled to reimbursement of his licensing fees. Dr. Katchin was able to refuse to go because it is not a requirement of his position.

[51]    In rebuttal, the grievor's representative submitted that the current job description included "other duties", implying that any other duties could be added and that Dr. Katchin could be called upon to help by the ERT if a disease crisis occurred. To accept that Dr. Katchin can be called during a chronic disease crisis means that it is a requirement of the position, notwithstanding that it is only a potential situation.

Reasons for Decision

[52]    The issue raised in the grievance is to decide whether Dr. Katchin is entitled to have his CVO registration fees reimbursed for 2001 and 2002. The grievance was based on clause E2.01 of the collective agreement.

[53]    The parties agreed that clause E2.01 specifies that the registration fees paid by Dr. Katchin have to be reimbursed if the CVO license is a requirement for the continuation of the duties of Dr. Katchin's position. In summary, the parties agreed that if Dr. Katchin's position requires him to euthanize animals by lethal injection or acquire and use controlled drugs, he needs a CVO license to be able to do so in respect of the Federal statutes: Controlled Drugs and Substances Act and the Health of Animals Act (replacing the Animal Disease and Protection Act) and related regulations. Consequently, I find that the Lefebvre decision (supra) related to Provincial legislation cannot apply in the present file.

[54]    The position description of a veterinary officer working in the meat hygiene program did not state euthanasia or the need to use or buy controlled drugs in the list of duties to be performed. Dr. Katchin submitted that the position description included those duties under the general topic of "Performs other duties." The onus of proof lies with the grievor who has to convince me that the employer required him to perform duties that necessitated a license to be entitled to reimbursement of fees under clause E2.01.

[55]    The testimonies show that Dr. Katchin was asked to volunteer to go to Saskatchewan during the mad-cow chronic disease crisis of 1997. For some reason, he declined this assignment but it has been demonstrated that if he agreed to volunteer, he should proceed to euthanize animals by lethal injection. Some veterinarian officers of the meat hygiene program got involved in the 2003 BSE crisis in Alberta. They were required to euthanize animals by lethal injection of controlled drugs on that occasion and, following Dr. Katchin's testimony, it would be the same in the mad-cow chronic disease of 1997.

[56]    The employer is allowed to request Dr. Katchin to assist in the mad-cow chronic disease crisis of 1997 in Saskatchewan. The employer can ask an employee to assist in that outbreak on a mandatory or voluntary basis. The voluntary basis of the request allows the employee to refuse it, contrary to a mandatory one. In the present file, Dr. Katchin refused to volunteer on that occasion and that refusal can only be considered as he denied to perform the duties related to that outbreak. On the contrary, if Dr. Katchin had accepted to volunteer, I would have found that he was required to euthanize animals and use controlled drugs and the employer would have been required to pay for his license fees.

[57]    In his grievances, Dr. Katchin requested to be reimbursed the licensing fees he paid for the years 2001 and 2002, and he had to prove that some duties included in his position description required him to be licensed with the CVO or another regulatory body governing the practice of veterinary medicine. His argument that the employer requested him to volunteer in the 1997 outbreak cannot be accepted as proof that the licensing was a requirement because he refused to assume the duties related to that assignment.

[58]    His assignment to the strike contingency plan in November 2003 implied that he could have been called upon to euthanize animals. This assignment is not relevant to the determination of the duties Dr. Katchin had to perform for the years 2001 and 2002, because it is subsequent to the grievances.

[59]    Consequently, Dr. Katchin did not succeed to prove that the employer specifically requested him to perform duties that required a CVO licence and the grievances are denied.

Léo-Paul Guindon,
Board Member

OTTAWA, April 15, 2004.