Date: 19981104
Docket: T-167-98
Ottawa, Ontario, the 4th day of November 1998
Present: the Honourable Mr. Justice Pinard
| IN THE MATTER OF an application for judicial review pursuant to sections 18 and 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7, as amended, of a decision of the adjudicator and member of the Public Service Staff Relations Board dated December 24, 1997, on the merits of a reference to adjudication under section 92 of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35, as amended (Public Service Commission file no. 166-2-744-6). |
Between:
IRENE MARINOS
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
The application for judicial review of the decision of the adjudicator Muriel Korngold Wexler, dated December 24, 1997, is dismissed.
YVON PINARD
JUDGE
Certified true translation
M. Iveson
Date: 19981104
Docket: T-167-98
| IN THE MATTER OF an application for judicial review pursuant to sections 18 and 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7, as amended, of a decision of the adjudicator and member of the Public Service Staff Relations Board dated December 24, 1997, on the merits of a reference to adjudication under section 92 of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35, as amended (Public Service Commission file no. 166-2-744-6). |
|
Between:
IRENE MARINOS
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PINARD J.:
[1] The instant application for judicial review concerns an adjudication decision dated December 24, 1997, on a grievance referred to adjudication pursuant to section 92 of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35, as amended. The applicant severely criticizes the adjudicator for not ordering her reinstatement in her position within the public service of Canada following her wrongful dismissal. Accordingly, while she does not challenge the part of the decision which denies her damages, the applicant considers inadequate the mere compensation awarded for loss of the salary and benefits to which she was entitled for ten days of work.
[2] It is important to reprint the following relevant provisions of the Public Service Employment Act, R.S.C, 1985, c. P-33:
| 2. (1) In this Act,
. . .
"employee" means a person employed in that part of the Public Service to which the Commission has the exclusive right and authority to appoint persons;
8. Except as provided in this Act, the Commission has the exclusive right and authority to make appointments to or from within the Public Service of persons for whose appointment there is no authority in or under any other Act of Parliament.
21.2 (1) Notwithstanding any other provision of this Act, the Commission may appoint any person to the Public Service for a period not exceeding ninety days.
(2) No person appointed under subsection (1) may work in any particular department, or in any other particular portion of the Public Service, on more than one hundred and twenty-five days in any year.
(3) The provisions of this Act, other than this section, do not apply to a person who is appointed under subsection (1).
25. An employee who is appointed for a specified period ceases to be an employee at the expiration of that period.
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| 2. (1) Les définitions qui suivent s'appliquent à la présente loi.
. . .
"fonctionnaire" Personne employée dans la fonction publique et dont la nomination à celle-ci relève exclusivement de la Commission.
8. Sauf disposition contraire de la présente loi, la Commission a compétence exclusive pour nommer à des postes de la fonction publique des personnes, en faisant partie ou non, dont la nomination n'est régie par aucune autre loi fédérale.
21.2 (1) Par dérogation aux autres dispositions de la présente loi, la Commission peut nommer toute personne à la fonction publique pour une période ne dépassant pas quatre-vingt-dix jours.
(2) Les personnes visées au paragraphe (1) ne peuvent travailler dans un même ministère ou autre secteur de la fonction publique plus de cent vingt-cinq jours dans une année.
(3) Les dispositions de la présente loi, à l'exception du présent article, ne s'appliquent pas aux personnes visées au paragraphe (1).
25. Le fonctionnaire nommé pour une période déterminée perd sa qualité de fonctionnaire à l'expiration de cette période.
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[3] The powers of the adjudicator appointed under the Public Service Staff Relations Act are simply defined as follows in section 96.1 of the Act, as amended:1
| 96.1 An adjudicator has, in relation to the adjudication, all the powers, rights and privileges of the Board, other than the power to make regulations under section 22.
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96.1 L'arbitre de grief a, dans le cadre de l'affaire dont il est saisi, tous les droits et pouvoirs de la Commission, sauf le pouvoir réglementaire prévu à l'article 22.
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[4] The only question to answer is whether the adjudicator erred in law, in light of the evidence before her, in deciding that she did not have the jurisdiction to reinstate the applicant in her position at the end of the 125-day period prescribed in subsection 21.2(2) of the Public Service Employment Act. The separate question of the applicant"s right to present a grievance under the Public Service Staff Relations Act was the subject of a separate application for judicial review which was heard and tried by my colleague Mr. Justice Richard, whose decision to recognize the applicant"s right to grieve is the subject of an appeal which is still pending before the Appeal Division of this Court.
[5] In the case at bar, the facts set out in the following excerpt from the adjudicator"s decision are not disputed:
| The evidence demonstrated that as of January 5, 1996, Ms. Marinos was employed at the Cowansville Institution on the basis of her acceptance of three consecutive offers of employment. Had Ms. Marinos' employment not been terminated on July 16, 1996, she would have signed the last offer of employment for a term ending on September 30, 1996 (Exhibit 1). Each of these offers of employment stipulates identical terms and conditions of employment except for the particular three-month period covered. They provide clearly that the period is for three months, that she is not subject to the provisions of the Public Service Employment Act, other than section 21.2, and she could not work more than 125 days within a 12-month period. Furthermore, the offer of employment could not be interpreted and considered as a an offer for indeterminate employment (Exhibit 1). |
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| The employer required Ms. Marinos to enter into a separate agreement for each of the three-month periods. The evidence showed that at the end of the first two three-month periods, the employer provided a new offer of employment. The third and last offer of employment stipulates that the period covered commenced on July 3, 1996 and ended September 30, 1996. It is clear that the periods were not simply extended but that new contracts were offered. |
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| . . . The evidence is that she had already worked 115 days as of July 17, 1996. . . . |
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[6] In light of these facts, it is clear that at the time of her termination, the applicant was a casual employee appointed to the public service by the Public Service Commission under subsection 21.2(1) of the Public Service Employment Act. She therefore did not have any rights other than those set out in her employment contract with the Commission and was also subject to subsections 21.2(2) and 21.2 (3) of that Act. Accordingly, had she not been dismissed, the applicant"s employment would have ended in any case on July 17, 1996, due to the combined effect of the end of her contract and the expiration of the 115 [sic ]-day period prescribed in subsection 21.2(2) of the Public Service Employment Act. After this date, the applicant could not therefore have been reinstated in the position she held in the public service until that date without a new appointment by the Public Service Commission. This is because of the requirements of sections 8 and 21.2 of the Public Service Employment Act, affirmed by the decision of the Supreme Court of Canada in Canada (A.G.) v. PSAC, [1991] 1 S.C.R. 614, in which Mr. Justice Sopinka wrote at page 634:
| In short, the situation is aptly summed up by Marceau J.A. speaking for the majority of the Court of Appeal when he states (at p. 643): |
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| There is quite simply no place in this legal structure for a public servant (that is, an employee of Her Majesty, a member of the Public Service) without a position created by the Treasury Board and without an appointment made by the Public Service Commission. |
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[7] As the applicant"s appointment to the position in question is not governed by any federal law other than the Public Service Employment Act , I must conclude that the adjudicator acting under the Public Service Staff Relations Act could not order or effect the required reinstatement without usurping the Public Service Commission"s exclusive right of appointment under sections 8 and 21.2 of the Public Service Employment Act , and accordingly acting beyond her jurisdiction.
[8] The applicant attaches much importance to the factual evidence that she had personally received three consecutive offers of employment, that the institution generally employed so-called casual employees continuously and as much as possible, and that the institution had a chronic need of staff. On this subject, I entirely subscribe to the following opinions expressed by the adjudicator in her decision:
| Moreover, these three consecutive offers of employment and the evidence that some of the correctional offers (sic) were offered full-time term appointments consecutive to these three-month "casual" offers of employment, are not indicative and evidence that Ms. Marinos" employment would have continued indefinitely. Even though the employer may have had a need for the services of correctional officers and there were a number of vacant positions, this does not necessarily translate into a permanent or indeterminate position for Ms. Marinos. . . . |
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[9] In my view, it is the employment contract between the Public Service Commission and the applicant which rules the relationship between these parties and this contract clearly states:
[TRANSLATION]
| . . . This letter is not to be construed as an offer of indeterminate (permanent) employment, and there is accordingly no reason to rely or count on continued employment in the public service. |
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| This appointment is not subject to the provisions of the Public Service Employment Act. Specifically, this means that you will not be eligible for closed competitions and that you may not file a grievance during this period of employment. . . . |
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[10] As the adjudicator"s refusal to award damages to the applicant was not challenged here, there are accordingly no grounds to intervene in the following conclusion of the arbitral award:
| . . . On the basis of the evidence adduced and the authority conferred on me as an adjudicator under the PSSRA, I conclude that Ms. Marinos is only entitled to remuneration up to the expiry date of her last contract, namely, September 30, 1996, and provided it does not exceed 125 days in any year. The evidence is that she had already worked 115 days as of July 17, 1996. Thus, Ms. Marinos is only entitled to a further 10 days of compensation. |
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[11] As the matter at issue fundamentally concerns the adjudicator"s jurisdiction to appoint a person to a position within the public service, the standard of judicial review I have used in this case is that of the correctness of the decision, rather than the generally applicable standard of the patent unreasonableness of the decision.
[12] For these reasons, the application for judicial review is dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
November 4, 1998
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-167-98
STYLE OF CAUSE: IRENE MARINOS v. AGC
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 20, 1998
REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE PINARD
DATED: November 4, 1998
APPEARANCES:
Richard Letendre for the applicant
Michel Lefrançois for the respondent
SOLICITORS OF RECORD:
Richard Letendre
Laval, Quebec
for the applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario
for the respondent
__________________
1 S.C., 1992, c. 54, s. 70.
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