Date: 20100219
Docket: T-797-09
Citation: 2010 FC 158
Ottawa, Ontario,
February 19,
2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
MARCELINE NEMOURS
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Marceline Nemours (the applicant) seeks judicial
review of a decision of Michèle A. Pineau (the adjudicator) dated
April 15, 2009, rendered pursuant to the Public Service Labour
Relations Act, S.C. 2003, c. 22, section 2 (the Act). The adjudicator
found that the applicant is not an “employee” within the meaning of the Act and
therefore declined jurisdiction.
Facts
[2]
The applicant has been working for the
Department of Veterans Affairs as a nurse at Ste. Anne’s Hospital since May 25, 1992. She was initially hired to
work on a full-time basis for a three-month term. She then worked part time for
another term, this time from September 7 to November 15, 1992. She kept
working for the hospital on a continuous basis until her employment was
terminated on November 17, 2005. Her employment at the hospital amounted to a series of successive term
appointments, either in part-time positions for a fixed period or on an on-call
basis. During that entire time, except for the initial term, she was registered
with an agency and worked for the hospital through that agency.
[3]
The applicant’s employment was terminated on
November 17, 2005. At that time, she was a so‑called on-call
employee, and her letter of offer (which she never signed) states that her
period of employment was from November 1, 2005, to January 30, 2006.
[4]
On December 23, 2005, the applicant filed
a grievance contesting her termination. Throughout the entire grievance process,
the hospital submitted that the applicant is not an employee within the meaning
of the Act and that the grievance is therefore barred. The grievance was
referred to an adjudicator. The adjudicator’s decision is now the subject of
this application for judicial review.
Impugned
decision
[5]
The adjudicator summarized the facts, the
evidence and the parties’ arguments. For the purposes of this decision, there
is no need to list them all, since they are uncontested. The first issue
addressed by the adjudicator was whether the applicant is an employee within
the meaning of the Act. That issue determined whether the adjudicator should
continue to hear the grievance.
[6]
The adjudicator stated that employee status
cannot be inferred from a situation of fact, as this status is defined by the
Act (see Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614 [Econosult]).
She noted that the wording of the definition of “employee” at subsection 2(1)
of the Act is very specific. In her view, the issue is whether the applicant’s
status must be determined on the basis of her last period of employment alone,
or all of her periods of employment since 1992.
[7]
The adjudicator noted that the applicant had
worked either part time or on an on-call basis and that her periods of
employment had been successive. The applicant had never claimed employee status
before.
[8]
The adjudicator determined that when the
applicant’s employment was terminated, she did not meet the definition of an
employee under the Act, that is, she was not ordinarily required to work more
than one third of the normal period for persons doing similar work. The fact
that she worked more than that at certain times of the year before her
termination was irrelevant because she had not worked those hours during the
period immediately preceding the termination of her employment. The adjudicator
was of the opinion that she should consider the applicant’s status as it was at
the precise moment of her termination, since that was the period that mattered.
[9]
The applicant’s status was that of an on-call
employee not ordinarily required to work more than one third of the normal
period for persons doing similar work. She was not included under
subsection 206(1) of the Act because she was not an employee at the time of
her termination.
[10]
The adjudicator considered whether she could
alter the scope of the definition at subsection 206(1) by exercising
remedial powers in equity. After comparing her remedial powers with those
granted to adjudicators under the Canada Labour Code, R.S.C. 1985, c.
L-2, she concluded that they were not the same. In her opinion, although she had
the power to decide a grievance and “make the order that . . . she
considers appropriate”, that provision was limited by the proviso that the
order be in compliance with the Act. Considering the presumption of harmony and
consistency between statutes, she took the view that the power under the Act was
more limited and that she did not have jurisdiction to expand the scope of the
definition set out at subsection 206(1).
[11]
Regarding the case law, she explained that Econosult
was still good law. She noted that employees of the federal public
administration make up a special category of employees whose positions are
established by the Treasury Board, and the Public Service Commission has the
exclusive right to appoint them to the public service. The creation of a
special class of employees to account for the applicant’s situation is
therefore inconsistent with the purpose of the Act. The adjudicator also relied
on Canada (Attorney
General) v. Marinos, [2000] 4 F.C. 98 (F.C.A.)
(Marinos), which deals with the principle that an adjudicator must refer
to employment legislation when applying legal standards.
[12]
The adjudicator distinguished the facts in this
case from those in Pointe-Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015. Finally, she
found that the findings in B.C. Health Services (Health Services and
Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC
27, [2007] 2 S.C.R. 391) were not relevant, since there was no evidence the
applicant’s termination infringed her freedom of association or equality
rights.
Issues
[13]
The issues in this case are as follows:
a.
What is the applicable standard of review in the
case at bar?
b.
Is the adjudicator’s decision to the effect that
the applicant is not an employee within the meaning of paragraph 2(1)(c)
and subsection 206(1) of the Act reasonable?
Relevant legislation
[14]
The relevant excerpts are reproduced in the
Annex to these reasons.
What is the
applicable standard of review in the case at bar?
[15]
The parties do not agree on the standard of
review to be applied. The applicant submits that the correctness standard
should apply, while the respondent argues that the appropriate standard is
reasonableness.
[16]
According to Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Court may
rely on case law if it is satisfied that the applicable standard has already
been clearly determined. The respondent notes that Marinos, cited by the
applicant, was decided on the basis of the former act (Public Service Staff
Relations Act, R.S.C. 1985, c. P-35, repealed), which did not have a
privative clause. An analysis is therefore required to determine the applicable
standard.
[17]
The Supreme Court stated the following in Dunsmuir
at paragraph 55:
A consideration
of the following factors will lead to the conclusion that the decision maker
should be given deference and a reasonableness test applied:
· A privative clause: this is a statutory direction from
Parliament or a legislature indicating the need for deference.
· A discrete and special administrative regime in which the
decision maker has special expertise (labour relations for instance).
· The nature of the question of law. A question of law that is
of “central importance to the legal system . . . and outside the . . .
specialized area of expertise” of the administrative decision maker will always
attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62).
On the other hand, a question of law that does not rise to this level may be
compatible with a reasonableness standard where the two above factors so
indicate.
[18]
In the case at bar, the adjudicator is subject
to a privative clause, which indicates that Parliament saw a need for considerable
deference.
[19]
The Commission has an expertise in the areas
within its jurisdiction. However, Marinos reminds us that an adjudicator
can claim no expertise in the interpretation of the Act where the question at
issue requires the adjudicator to define the limits of his or her own
jurisdiction.
[20]
As for the nature of the question, although the adjudicator
treated it as a jurisdictional one, I do not think that it is one in the same
sense of “jurisdiction” as the Supreme Court defines it in Dunsmuir at
paragraph 59. I agree with the respondent’s argument to the effect that
this is rather a question of mixed fact and law, since the evidence must be
assessed to determine whether the applicant complies with the Act’s provisions
concerning the word “employee” (Eswick v. Canada (Attorney General),
2007 FC 894, 319 F.T.R. 290 at paragraphs 79 and 80).
[21]
I also cannot agree that this question is of central
importance to the legal system and outside the specialized area of expertise of
the tribunal. Questions of mixed fact and law are subject to the reasonableness
standard (Dunsmuir at paragraph 53).
[22]
I would therefore apply the reasonableness
standard.
Is the adjudicator’s
decision to the effect that the applicant is not an employee within the meaning
of paragraph 2(1)(c) and subsection 206(1) of the Act reasonable?
Applicant’s
submissions
[23]
The applicant notes that the analysis of whether
a person is “ordinarily required to work more than one third of the normal
period for persons doing similar work” cannot be limited to the first two weeks
of the most recent employment contract in a case where the person has 13 years
of uninterrupted service.
[24]
The applicant objects to the approach used by
the adjudicator and suggests that if we looked no further than the language and
form of the employment contract, it would allow the employer to impose
employment contracts that do not reflect the actual hours assigned, thus
depriving employees of their remedies. In her view, the hospital cannot rely on
the contract to circumvent the Act, and the form of the contract is not determinative
at all. She adds that the hospital’s characterization of her employment status cannot
be allowed to stand because “on‑call” status does not exist under the
legislation governing employment in the public service.
[25]
The applicant argues that if the adjudicator had
analyzed the evidence on the record, she would have been forced to conclude
that the applicant is an employee within the meaning of the Act. She notes that
the documents on the record clearly show that she worked more than 90 days,
this being one third of the normal period for persons doing similar work, in
the continuous and cumulative period preceding her termination.
[26]
The applicant relies on a table, prepared by the
adjudicator, summarizing her employment contracts since 1992 (Adjudicator’s Decision
at paragraph 9). She also submits her own tables showing her part-time and
on-call hours for the fiscal years since 1999 (Applicant’s Record page 474
at paragraphs 15 and 16). She claims that these tables show that during
her last four years of employment, she worked more than 90 days a year. She
notes that the facts demonstrate that throughout her entire period of
employment, she worked at the hospital every week, performing the same work as
the nurses with indeterminate status and following the same protocols and
directives applicable to other employees.
[27]
The applicant further submits that the fact that
there is no such thing as “on-call” employee status under the relevant
legislative scheme speaks in favour of an in-depth assessment of the
circumstances surrounding her conditions of employment. She argues that even
when she was “on-call”, she ordinarily worked more than a third of the normal
number of hours.
[28]
The applicant notes that there are only three
types of appointments: indeterminate, term and casual (period not exceeding 90 working
days in one calendar year in any particular department). She states that she is
not a casual employee, nor is she a term employee appointed for a term of less
than three months, since some of her contracts over the years had on-call terms
exceeding 90 days.
[29]
Since the term “on-call” is not defined anywhere
in the Act, the applicant submits that her periods of on-call employment were
actually term appointments. She refers to the Term Employment Policy
(Treasury Board, Term Employment Policy, on-line: http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=12584§ion=text
(April 1, 2003) (the Policy), which requires that where a person who has
been employed in the same department/agency as a term employee for a cumulative
working period of three years, without a break in service longer than
60 consecutive calendar days, the department/agency must appoint the
employee indeterminately at the level of his/her substantive position.
[30]
The applicant submits that when the period of
employment is calculated as part of the analysis of whether she is an employee
within the meaning of the Act, that calculation must take into account her
entire period of employment, since that constitutes a cumulative working period
within the meaning of the Policy. The adjudicator should have considered a
period of at least three years leading up to her termination.
[31]
The applicant also points out that when
determining employee status under the Parliamentary Employment and Staff
Relations Act, R.S.C. 1985, c. 33 (2nd Supp.), a
period of one year must be taken into consideration. She therefore asks why the
adjudicator only considered her last employment contract.
[32]
Finally, the applicant submits that the
expression “a person not ordinarily required to work more than one third of the
normal period for persons doing similar work” is clear and unequivocal and
should be given its ordinary meaning. In her view, the analysis necessarily
involves a comparison between the hours she normally worked and those worked by
other nurses in the same bargaining unit. She proposes that such an
interpretation is consistent with the principle that social legislation ought
to be interpreted in a broad and generous manner. Such an interpretation is
also in keeping with objectives in the Act’s preamble, which states that “the
Government of Canada is committed to fair, credible and efficient resolution of
matters arising in respect of terms and conditions of employment”. She also
refers to BC Health Services, in which the Supreme Court of Canada recognized
a constitutionally protected right to collective bargaining. She suggests that
the adjudicator’s interpretation infringes that right and is contrary to the
principle of interpretation to the effect that legislation is presumed to be in
conformity with the Charter.
[33]
In conclusion, the applicant submits that the
adjudicator’s decision does not stand up to the standard of review, be it
correctness or reasonableness, since it is based on an erroneous finding of
fact to the effect that the applicant was an on-call employee. She also argues
that the adjudicator’s interpretation is inconsistent with well-established
principles.
Respondent’s
submissions
[34]
In response, the respondent submits that the
adjudicator reasonably concluded that the applicant was not ordinarily required
to work more than one third of the normal period for persons doing similar work
and therefore is not an employee within the meaning of the Act. The respondent
proposes that the decision is based on an interpretation consistent with both
the language of the Act and the rules of interpretation.
[35]
The respondent notes that according to the rules
of interpretation, the Act is deemed to have been drafted in accordance with
the rules of language in common use (P.-A. Côté, The Interpretation of
Legislation in Canada, 3rd ed. Scarborough, Ont.: Carswell, 2000 at page 261).
He cites the definitions of the words “normal” and “ordinarily” in support of
his argument that the wording of the Act indicates that Parliament intended
that the definition of “employee” should exclude employees who sometimes, on
rare occasions, are required to work more than one third of the normal period
for persons doing similar work. He also calls attention to Parliament’s
decision to precede the word “required” with the word “ordinarily” and
reiterates the principle of interpretation that Parliament does not speak in
vain.
[36]
The respondent notes that when the applicant’s
employment was terminated, her offer of employment, which took effect on November 1, 2005, stipulated that she would
not usually have to work more than one third of the normal period, so she could
not be considered to be an employee within the meaning of the Act. On her last
day of work, that is November 14, 2005, she had worked only 3 days
(22.5 hours).
[37]
The respondent argues that the periods of
employment prior to the November 1, 2005, contract are not relevant to establishing whether the applicant could
be considered to be an employee.
[38]
Regarding the Policy, the respondent suggests
that it was not submitted to the adjudicator. Even if the adjudicator had to
consider the Policy, she was not bound by it (Spencer v. Canada (Attorney
General), 2008 FC 1395, [2008] F.C.J. No. 1840 (QL); Spencer v. Canada
(Attorney General), 2010 FC 33, [2010] F.C.J. No. 29 (QL) [Spencer]).
[39]
Finally the respondent submits that the
adjudicator’s decision was not only reasonable, but correct.
Analysis
[40]
The issue before the Court is whether it was
reasonable for the adjudicator to conclude that the applicant did not meet the
definition of an employee under paragraph 2(1)(c) and
subsection 206(1) of the Act. I am of the opinion that the Supreme Court’s
decision in Econosult, above, applies in this case.
[41]
As Justice Sopinka wrote, “there is just no
place for a species of de facto public servant who is neither fish nor
fowl” (Econosult, above, at paragraph 25). The adjudicator defined
the issue correctly when she considered whether she should take into account
the applicant’s last period of employment or the period since 1992 to determine
whether the applicant meets the definition of an employee.
[42]
Under the Act, any person employed in the public
service “not ordinarily required to work more than one third of the normal
period for persons doing similar work” is excluded from the definition of an
employee (paragraph 2(1)(c)). The adjudicator concluded that the
fact that the applicant had worked more than that during certain periods in the
years leading up to termination was irrelevant because she had not worked those
hours during the period of employment immediately preceding her termination.
The adjudicator was of the opinion that she should take into account the
applicant’s status at the precise moment she was terminated, as the period at
the time of her termination was the one that was relevant to the case.
[43]
Each contract offered to and signed, or not, by
the applicant before the period beginning November 1, 2005, gave her a different
status and, consequently, certain rights. However, in the case at hand, I am of
the opinion that the adjudicator did not err in considering the contract that
was in force at the time of the applicant’s termination to determine her
status. Nothing in the Act required the adjudicator to analyze a three-year or
one-year period before the termination to determine whether the applicant met
the definition of an employee. The employment contract is clear, and the
adjudicator correctly directed herself in law.
[44]
As regards the policy, this document was not
filed in evidence, so the adjudicator could not consider it in her analysis.
Even if it had been, I agree with the recent decisions in Spencer, above,
that the policy does not have force of law.
[45]
The applicant correctly pointed out that
“on-call” status does not exist in the legislation. However, this is not the
first time that the respondent has characterized certain of its employees as
such (see Marinos, above). What is important here in defining the applicant’s
status is the contract at issue (page 422, Applicant’s Record), which
clearly states, [translation] “. . .
Given that you will not be required to work more than one third of the normal hours
of work, you are not governed by the Canadian Public Service Employment Act.
For this reason, you cannot be considered to be an employee within the meaning
of that Act . . .”.
[46]
The adjudicator rendered a decision that was
reasonable and, I would even say, correct in excluding the applicant from the
definition of an employee under paragraph 2(1)(c) and subsection 206(1)
of the Act.
[47]
By agreement of the parties, I award a lump sum
for costs.
JUDGMENT
THE COURT
ORDERS that the
application for judicial review be dismissed. The applicant shall pay costs in
a lump sum in the amount of $3,000. This sum includes disbursements and GST.
“Michel Beaudry”
Certified true
translation
Michael Palles
Appendix
Public Service Employment Act, S.C. 2003, c. 22, section 2.
|
2. (1) The
following definitions apply in this Act.
“employee”
« fonctionnaire »
“employee”, except in Part 2, means a
person employed in the public service, other than
(a) a person appointed by the
Governor in Council under an Act of Parliament to a statutory position
described in that Act;
(b) a person locally engaged
outside Canada;
(c) a person not ordinarily
required to work more than one third of the normal period for persons doing
similar work;
(d) a person who is a member or
special constable of the Royal Canadian Mounted Police or who is employed by
that force under terms and conditions substantially the same as those of one
of its members;
(e) a person employed in the
Canadian Security Intelligence Service who does not perform duties of a
clerical or secretarial nature;
(f) a person employed on a casual
basis;
(g) a person employed on a term
basis, unless the term of employment is for a period of three months or more
or the person has been so employed for a period of three months or more;
(h) a person employed by the
Board;
(i) a person who occupies a
managerial or confidential position; or
(j) a person who is employed under
a program designated by the employer as a student employment program.
206. (1)
The following definitions apply in this Part.
“employee”
« fonctionnaire »
“employee” has the meaning that would be
assigned by the definition “employee” in subsection 2(1) if that definition
were read without reference to paragraphs (e) and (i) and
without reference to the words “except in Part 2”.
209. (1)
An employee may refer to adjudication an individual grievance that has been
presented up to and including the final level in the grievance process and
that has not been dealt with to the employee’s satisfaction if the grievance
is related to
(a) the interpretation or application
in respect of the employee of a provision of a collective agreement or an
arbitral award;
(b) a disciplinary action
resulting in termination, demotion, suspension or financial penalty;
(c) in the case of an employee in
the core public administration,
(i) demotion or termination under
paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory
performance or under paragraph 12(1)(e) of that Act for any other reason that
does not relate to a breach of discipline or misconduct, or
(ii) deployment under the Public Service
Employment Act without the employee’s consent where consent is required; or
(d) in the case of an employee of
a separate agency designated under subsection (3), demotion or termination
for any reason that does not relate to a breach of discipline or misconduct.
228. (1)
If a grievance is referred to adjudication, the adjudicator must give both
parties to the grievance an opportunity to be heard.
(2) After considering the grievance, the
adjudicator must render a decision and make the order that he or she
considers appropriate in the circumstances. The adjudicator must then
(a) send a copy of the order and,
if there are written reasons for the decision, a copy of the reasons, to each
party, to the representative of each party and to the bargaining agent, if
any, for the bargaining unit to which the employee whose grievance it is
belongs; and
(b) deposit a copy of the order
and, if there are written reasons for the decision, a copy of the reasons,
with the Executive Director of the Board.
(3) In the case of a board of
adjudication, a decision of a majority of the members on a grievance is
deemed to be a decision of the board in respect of the grievance, and the
decision must be signed by the chairperson of the board.
(4) If a majority of members of the board
of adjudication cannot agree on the making of a decision, the decision of the
chairperson of the board is deemed to be the decision of the board.
|
2. (1) Les
définitions qui suivent s’appliquent à la présente loi.
« fonctionnaire » Sauf à la partie 2,
personne employée dans la fonction publique, à l’exclusion de toute personne
:
a) nommée par le gouverneur en conseil,
en vertu d’une loi fédérale, à un poste prévu par cette loi;
b) recrutée sur place à l’étranger;
c) qui n’est pas ordinairement astreinte
à travailler plus du tiers du temps normalement exigé des personnes exécutant
des tâches semblables;
d) qui est membre ou gendarme auxiliaire
de la Gendarmerie royale du Canada, ou y est employée sensiblement aux mêmes
conditions que ses membres;
e) employée par le Service canadien du
renseignement de sécurité et n’exerçant pas des fonctions de commis ou de
secrétaire;
f) employée à titre occasionnel;
g) employée pour une durée déterminée de
moins de trois mois ou ayant travaillé à ce titre pendant moins de trois
mois;
h) employée par la Commission;
i) occupant un poste de direction ou de
confiance;
j) employée dans le cadre d’un programme
désigné par l’employeur comme un programme d’embauche des étudiants.
206. (1)
Les définitions qui suivent s’appliquent à la présente partie.
« fonctionnaire »
“employee”
« fonctionnaire » S’entend au sens de la
définition de ce terme au paragraphe 2(1), compte non tenu des exceptions
prévues aux alinéas e) et i) de celle-ci et des mots « sauf à la partie 2 ».
209. (1)
Après l’avoir porté jusqu’au dernier palier de la procédure applicable sans
avoir obtenu satisfaction, le fonctionnaire peut renvoyer à l’arbitrage tout
grief individuel portant sur :
a) soit l’interprétation ou
l’application, à son égard, de toute disposition d’une convention collective
ou d’une décision arbitrale;
b) soit une mesure disciplinaire
entraînant le licenciement, la rétrogradation, la suspension ou une sanction
pécuniaire;
c) soit, s’il est un fonctionnaire de
l’administration publique centrale :
(i) la rétrogradation ou le licenciement
imposé sous le régime soit de l’alinéa 12(1)d) de la Loi sur la gestion des
finances publiques pour rendement insuffisant, soit de l’alinéa 12(1)e) de
cette loi pour toute raison autre que l’insuffisance du rendement, un
manquement à la discipline ou une inconduite,
(ii) la mutation sous le régime de la Loi
sur l’emploi dans la fonction publique sans son consentement alors que
celui-ci était nécessaire;
d) soit la rétrogradation ou le
licenciement imposé pour toute raison autre qu’un manquement à la discipline
ou une inconduite, s’il est un fonctionnaire d’un organisme distinct désigné
au titre du paragraphe (3).
228. (1)
L’arbitre de grief donne à chaque partie au grief l’occasion de se faire
entendre.
(2) Après étude du grief, il tranche
celui-ci par l’ordonnance qu’il juge indiquée. Il transmet copie de
l’ordonnance et, le cas échéant, des motifs de sa décision :
a) à chaque partie et à son représentant
ainsi que, s’il y a lieu, à l’agent négociateur de l’unité de négociation à
laquelle appartient le fonctionnaire qui a présenté le grief;
b) au directeur général de la Commission.
(3) La décision de la majorité des
membres d’un conseil d’arbitrage de grief au sujet d’un grief constitue la
décision du conseil. Elle est signée par le président du conseil.
(4) Lorsqu’il n’y a pas de majorité, la
décision du président du conseil constitue la décision du conseil.
|
Email this Content