Nova Scotia Government Employees Association et al. v. Civil Service Commission of Nova Scotia et al., [1981] 1 SCR 211

Supreme Court of Canada

Nova Scotia Government Employees Association et al. v. Civil Service Commission of Nova Scotia et al., [1981] 1 S.C.R. 211

Date: 1981-02-17

The Nova Scotia Government Employees Association and Alexander John Wilson Appellants;

and

The Civil Service Commission of Nova Scotia and The Attorney-General of Nova Scotia representing Her Majesty The Queen in the right of the Province of Nova Scotia Respondents.

1980: October 22; 1981: February 17.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NOVA SCOTIA

Labour relations—Civil Service—Dismissal—Extent of Crowns right to dismiss civil servant—Effect of labour contract—Whether or not Crown’s right to dismiss superseded by labour agreement—Civil Service Act, R.S.N.S. 1967, c. 34, ss. 9, 22, 57—Civil Service Joint Council Act, R.S.N.S. 1967, c. 35, ss. 3, 8—Nova Scotia Government Employees Association Act, 1973 (N.S.), c. 136, s. 6(d).

Appellant Wilson had been appointed to the Nova Scotia Public Service subject to a twelve-month probationary period which had been validly extended six months following a warning, with reason, that his work was unsatisfactory. After the Deputy Minister informed him that this services were not required on the expiry of the extended probationary period, Wilson filed a grievance which carried through to the appointment of a Civil Service Arbitration Board. The Board held that the Commission as the employer was the proper authority to dismiss Wilson—not the Deputy Minister—and ordered Wilson’s confirmation as a permanent employee. Before this decision was rendered but after the grievance had been filed, an Order in Council terminated Wilson’s employment pursuant to s. 57 of the Act. This termination, too, was grieved according to the agreement, but the Minister responsible rejected the request of the Civil Service Joint Council for the appointment of another arbitration board because it was “…not the proper forum to challenge the actions of the Governor in Council”. Appellants’ originating notice of motion under the Arbitration Act for appointment of an arbitration board was dismissed; the appeal from this decision was unanimously dismissed by the Court of Appeal.

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A rudimentary form of collective bargaining had been provided for in the Civil Service Joint Council Act. The collective agreement entered into between the appellant association and the Crown in right of Nova Scotia was ratified by regulation of the Civil Service Commission and that regulation was subsequently approved by Order in Council. The terms of the contract which included limitations on the Crown’s right to dismiss at will, were authorized by the Civil Service Act. Sections 22 and 57 of that Act, however, respectively provided that appointments to the Civil Service were “during pleasure” and that “Nothing contained herein impair[ed] the power of the Governor in Council to remove any… employee”. The legal issue was whether, notwithstanding the regulation approving the collective agreement and notwithstanding the Nova Scotia Government Employees Association Act, the provincial Crown could refuse to recognize the terms of the collective agreement and ignore its provisions limiting the Crown’s rights to dismiss at will by invoking ss. 22 and 57 of the Civil Service Act.

Held (Martland, Ritchie and Estey JJ. dissenting): The appeal should be allowed.

Per Laskin C.J. and Dickson, McIntyre and Chouinard JJ.: The provisions for a form of collective bargaining in the Civil Service Joint Council Act displaced ss. 22 and 57 of the Civil Service Act in respect of an agreement concluded by the Joint Council or established by arbitration. The combined effect of the approved regulation ratifying the agreement and the incorporation into that agreement of the Civil Service Joint Council Act arbitration provision excluded the application of s. 22. Section 57 did not constitute a grant of any fresh statutory power, but was merely a holding provision which left the power of the Governor in Council subject to contractual limitations. Far from s. 57’s swallowing up both the collective agreement entered into by the Crown and the approving regulation, the collective agreement, approved by the Governor in Council and the Civil Service Commission, amounted to a deliberate subordination of whatever unilateral power of dismissal the Governor in Council might have had. The words “nothing herein contained” in s. 57 could not have had the effect of overcoming a bargain negotiated in good faith outside the purview of the Civil Service Act and under authorizing legislation. The law had gone too far towards establishing a relative equality of legal position as between the Crown and those with whom it dealt to warrant a reversion to an anachronism. The power to dismiss at pleasure was at best an implied term of employment if there was no contrary provision. The authorized collective agreement expressly displaced the

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common law position, and while it did not derogate from the Civil Service Act, it did overcome the effect of s. 57.

Per Martland, Ritchie and Estey JJ., dissenting: Section 57 retained for the Governor in Council an overriding power to dismiss any civil employee, notwithstanding any other provision contained in the Act. The agreement operated only by virtue of a regulation made by the Commission pursuant to s. 9 of the Act. As the power to make the regulation remained subject to s. 57, the regulation could only be made subject to the power of the Governor in Council to dismiss. The Association’s incorporating statute did not confer on it or its members any rights or privileges against the Crown. Bargaining, even though the Association was empowered to do so collectively with the Crown, had to be effected pursuant to the Act. The resulting agreement only acquired validity when approved by the Governor in Council as a regulation.

[Reilly v. The King, [1934] A.C. 176; Shenton v. Smith, [1895] A.C. 229, referred to.]

APPEAL from a judgment of the Court of Appeal for Nova Scotia[1], dismissing an appeal from the dismissal by Richard J. of a motion seeking arbitration. Appeal allowed.

Peter G. Green and Joel E. Fichaud, for the appellants.

William Wilson and Mollie Gallagher, for the respondents.

The judgment of Laskin C.J. and Dickson, McIntyre and Chouinard JJ. was delivered by

THE CHIEF JUSTICE—The issue in this appeal, which is here by leave of this Court, is whether the appellants are entitled to have a dismissal grievance submitted to arbitration under a collective agreement between the appellant Association and the Crown in right of Nova Scotia, represented by the provincial Civil Service Commission, or whether the Crown can legally insist that it retains an unimpaired power to dismiss at its pleasure employees, like the appellant Wilson, who are covered by the collective agreement.

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Wilson was originally employed with probationary status for a twelve-month period from July 15, 1974. His probationary period was extended to January 14, 1976. By letter of December 23, 1975, he was notified that his services would no longer be required after January 14, 1976. He filed a grievance, pursuant to the collective agreement, and it was taken to arbitration, without protest by the Civil Service Commission of his right and that of the appellant Association to invoke arbitration under the collective agreement. The arbitration board found (indeed, it was conceded) that Wilson’s services had not been validly terminated, and in its award of September 22, 1976, the Board held that Wilson had acquired permanent status as of January 15, 1976.

Notwithstanding its participation in the arbitration, the Civil Service Commission was instrumental in having an order-in-council passed on February 12, 1976, terminating Wilson’s employment, purporting to do so pursuant to s. 57 of the Civil Service Act, R.S.N.S. 1967, c. 34. I shall return to s. 57 and consider also other provisions of the Civil Service Act, such as s. 22 (upon which the Crown also relied before this Court) in due course. The arbitration board was, of course, aware of this when it made its award. It gave Wilson back pay for the period January 15, 1976, to February 12, 1976, noting that the Order in Council of February 12, 1976, was the subject of a second grievance that might proceed to arbitration. It is by reason of the refusal of the Civil Service Commission to proceed to arbitration on this second grievance that the case now before this Court arose.

The collective agreement entered into between the Association and the Crown in right of Nova Scotia, and executed on October 29, 1975, was made the subject of a ratifying regulation of the Civil Service Commission and was given Order in Council approval on November 25, 1975. The Order in Council recites that the Governor in Council was pleased to approve the regulation “on… the recommendation of the Minister through whom the Civil Service Commission reports…

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[and] on the recommendation of the Civil Service Commission and pursuant to Section 9 of the Civil Service Act”.

Section 9 of the Civil Service Act provides as follows:

9 The Commission, with the approval of the Governor in Council, may make regulations relating to employment in the Civil Service respecting:

(a) terms and conditions of employment;

(b) eligibility and qualifications for appointment;

(c) nature and extent of examination;

(d) classification and reclassification of employees;

(e) transfer and promotion of employees;

(f) compensation and increases in compensation of employees;

(g) termination of employment and what constitutes resignation;

(h) holidays, vacation, sick leave, special leave, and other absences;

(i) days and hours of work;

(j) hearing and determination of complaints and grievances;

(k) public service award;

(l) the keeping and making of records and reports relating to employees;

(m) any other matter deemed necessary or advisable for the better carrying out of the purposes and intent of this Act.

There is no question that it authorizes (lest there be any doubt about it) the terms of the collective agreement that was entered into between the Association and the Civil Service Commission on behalf of the Crown in right of Nova Scotia. The legal question that is raised by this case and, to which I now come, is whether, notwithstanding the regulation approving the collective agreement and notwithstanding the Nova Scotia Government Employees Association Act, 1973 (N.S.), c. 136, the provincial Crown may refuse to recognize the terms of the collective agreement, and ignore its provisions (which limit whatever rights it may have to dismiss at will), by invoking s. 22 and s. 57 of the Civil Service Act. The morality of the Crown’s behaviour in this case is not the direct concern of this Court.

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Sections 22 and 57 of the Civil Service Act read as follows:

22 Except where otherwise expressly provided, all appointments to the Civil Service shall be upon examination pursuant to this Act and the regulations and shall be during pleasure.

…

57 Nothing herein contained impairs the power of the Governor in Council to remove or dismiss any Deputy Head or employee.

It is sufficient to trace these provisions back to the Civil Service Act 1952, 1952 (N.S.), c. 4, which became c. 34 of R.S.N.S. 1954. In the Act they were, respectively, s. 23 and s. 46, the latter section being then formulated in different language. In 1962 a new Civil Service Act was enacted, amending and consolidating the then existing Act. The new Act, 1962 (N.S.), c. 3, retained s. 23 and what was s. 46 became s. 58, reading as it does now in the current Act. When these Acts of 1952 and 1962 were enacted there was no provision for collective bargaining in the civil service but the situation changed with the enactment of the Civil Service Joint Council Act, 1967 (N.S.), c. 6, which became R.S.N.S. 1967, c. 35.

The Civil Service Joint Council Act provided for the establishment of a Civil Service Joint Council composed of three public servants appointed by the Governor in Council and three members appointed by the Governor in Council on the recommendation of the Nova Scotia Civil Service Association, an unincorporated association of persons in the employ of the provincial Government through appointment by the Civil Service Commission. There was to be an independent chairman of the Joint Council appointed by the Governor in Council.

The business of the Joint Council depended on the agenda prepared by the chairman pursuant to s. 3 of the Act. Under that section the chairman was obliged to

3…

(d) put on the agenda at the request of a member any matter concerning the terms of employment of

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civil servants including, but not so as to restrict the generality of the foregoing, working conditions, remuneration, leaves of absence and hours of work provided that he shall not put on the agenda any matter until he is satisfied that the appropriate proceedings in respect of the matter have been taken under Section 59 of the Civil Service Act and Regulations 61, 62 and 63 of the Regulations under the said Act;…

This provided a negotiating basis for the Joint Council as prescribed by s. 4 which was as follows:

4 The Joint Council shall consider and negotiate such matters as are put on the agenda by the chairman pursuant to Section 3.

If a decision was reached on matters on the agenda, s. 5 of the Act required that it be signed by the chairman and vice-chairman “and the chairman shall transmit it to the appropriate authority to be implemented and it shall be binding on the Association”.

The Civil Service Joint Council Act provided for mediation if agreement could not be reached, and if mediation failed arbitration by a Civil Service Arbitration Board could be requested by either the Minister of Labour or the Association. Section 7(3) of the Civil Service Joint Council Act provided that the chairman of the Board sign its decisions and transmit them to the appropriate authority for implementation and they were to be binding on the Association.

A key section of the Act is s. 8, reading as follows:

8 The Governor in Council, notwithstanding the provisions of the Civil Service Act, is empowered to and subject to Section 9 shall implement any decision of the Joint Council or the Arbitration Board and the Civil Service Commission is empowered to and subject to Section 9 shall implement such a decision in the same manner as it implements a provision of the Civil Service Act or a regulation made thereunder.

It appears to me to be clear that the Civil Service Joint Council Act, providing as it does for a rudimentary form of collective bargaining, would by reason of s. 8, displace ss. 22 and 57 of the Civil

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Service Act in respect of any concluded agreement by the Joint Council on security of employment or protection of employees against discharge unless for just cause. Equally, it would displace ss. 22 and 57 of the Civil Service Act if such security or protection arose as a result of a decision of the Civil Service Arbitration Board where the Joint Council was unable to reach agreement and arbitration was invoked to establish an agreement. Force is lent to this arrangement by the obligation laid upon the Nova Scotia Civil Service Association by s. 10 of the Civil Service Joint Council Act not to sanction, encourage or support, financially or otherwise, a strike by its members or any of them.

It may be suggested that a decision of the Joint Council or of the Civil Service Arbitration Board must first be made in the light of the provisions of the Civil Service Act and that it is only those decisions that pay deference to ss. 22 and 57 that are subject to implementation. This, in my view, would be a tortured interpretation of the scheme of the Civil Service Joint Council Act. Implementation is, in my view, inseparably connected with substantive decisions arrived at through negotiation or through arbitration. It must be remembered that the chairman prepares the negotiation agenda and is obliged to put on the agenda, inter alia, “any matter concerning the terms of employment of civil servants”. This surely envisages the possibility of some protection against arbitrary discharge. There is no limitation in this respect based on ss. 22 and 57 of the Civil Service Act and the implementation provisions of s. 8 of the Civil Service Joint Council Act simply carry the process to its binding result by expressly excluding the Civil Service Act (and hence ss. 22 and 57) from qualifying the obligation of implementation. Indeed, it is the duty of a Court to give legislation a reasonable construction which will achieve its purpose and not seek to defeat it by technical refinements.

The Civil Service Joint Council Act was legislation posterior to the Civil Service Act and, with the former Act still in force, further legislation was enacted in 1973 incorporating the Nova Scotia

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Government Employees Association. This Association, an appellant in the present case, was obviously put in place to represent Nova Scotia Government employees instead of the old Civil Service Association. Its constituent statute, 1973 (N.S.), c. 136, stipulated as one of its objects (s. 2(d)) “to bargain collectively with Her Majesty the Queen in the right of Nova Scotia” and also (s. 2(e)) “to bargain collectively pursuant to the Trade Union Act with boards, agencies, and commissions of Her Majesty the Queen in the right of Nova Scotia from time to time appointed”. Among the powers of the incorporated Association were those set out in s. 6(d), as follows:

6 The Association is empowered

…

(d) to enter into arrangements with any authorities, governmental, municipal, local, or otherwise that may seem conducive to the attainment of the Association’s objects or any of them, and to obtain from any such authority, rights, privileges and concessions which the Association may have and the capacity to receive and may think desirable to obtain, to carry out, execute, exercise or comply with any such arrangements, rights, privileges and concessions;

It was in pursuance of its objects and powers that the Association negotiated the collective agreement out of which Wilson’s grievances arose. That agreement runs the gamut of provisions commonly found in such documents. I think it important to highlight some of its provisions. Article 2.01 states that the Employer (defined as Her Majesty the Queen in the right of the Province of Nova Scotia as represented by the Civil Service Commission) recognizes the Association as the exclusive bargaining agent. Article 3.01 states that the agreement applies to and is binding on the Association, the employees and the Employer. Article 7.01 reproduces the already quoted provisions of s. 10 of the Civil Service Joint Council Act and, indeed, mentions the Act in forbidding the sanctioning or support or encouragement of a strike. Two central terms of the collective agreement are articles 23.01 and 24.01. Article 23.01 provides that “The provisions for Arbitration contained in the Civil Service Joint Council Act shall

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apply to grievances resulting from this Agreement”. Article 24.01 states that “No employee who has completed his probationary period shall be disciplined by suspension without pay or by discharge except for just and sufficient cause”. Article 24.03 is relevant in respect of discharge grievances because it provides for invocation of the grievance procedure at its final level and for consequent arbitration under the provisions of the Civil Service Joint Council Act.

What we have here, therefore, is a collective agreement between the Crown in right of Nova Scotia and the appellant Association which (1) protects civil servants covered by the agreement from discharge except for just and sufficient cause and (2) establishes arbitration by reference to the Civil Service Joint Council Act as the agreed method of resolving grievances, including grievances against allegedly unjustified discharge. If ss. 22 and 57 of the Civil Service Act were displaced where successful negotiations or, failing that, arbitration took place under the Civil Service Joint Council Act, has the situation changed by reason of the establishment of a more mature collective bargaining relationship between the Crown in right of Nova Scotia and the appellant Association through the incorporation of the Association with a stated object to bargain collectively with the Crown?

The power and authority of the Crown in right of Nova Scotia to enter into a collective agreement with the Association is unquestioned. The Crown would have it, however, that whatever other advantages and protection the agreement gave to civil servants they had no security against arbitrary discharge, although protection against this is one of the rationales of collective bargaining and represents a central feature of collective agreements in this country.

The contention is that both ss. 22 and 57 of the Civil Service Act operate to limit the reach of the collective agreement to provide protection against allegedly unjustified discharge and to require arbi-

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tration of a discharge grievance. I do not think that this contention is maintainable. In my view, the combined effect of the approved regulation under s. 9 of the Civil Service Act ratifying the collective agreement with the Association and the incorporation into the arbitration clause of that agreement of the provision for arbitration in the Civil Service Joint Council Act is to exclude the application of s. 22. I do not read the words therein “Except where otherwise expressly provided” as necessarily requiring that the express provision otherwise should be in a different enactment. Indeed, s. 9(a) of the Civil Service Act, in authorizing regulations respecting “terms and conditions of employment” must contemplate that such terms and conditions might limit the power to dismiss at pleasure. It would be different if s. 22 read “notwithstanding anything in or authorized by this Act”. The Crown itself appeared to have no doubt of its position under the collective agreement when it negotiated the agreement with protection against unjustified discharge and agreed to arbitrate grievances and when it approved a regulation giving force to the collective agreement.

Again, I do not see how s. 57 of the Civil Service Act can stand in the way of the claim of the appellants. There are two views that may be taken of s. 57. One view is that it merely restates the common law position that employees of the Crown hold at pleasure, at least if there is nothing in their terms of engagement to dictate otherwise; cf. Reilly v. The King[2], at p. 179. The other view is that the provisions of the Civil Service Act should not be read as impairing the power of dismissal or removal. Neither of these views controls the present case.

Indeed, whichever of these two views is taken, the essential feature of s. 57 is that it does not constitute a grant of any fresh statutory power. It is merely a holding provision and leaves the power of the Governor in Council subject to such limitations as he may contract to accept. Far from s. 57

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swallowing up the collective agreement entered into by the Crown and swallowing up the approving regulation under s. 9 of the Civil Service Act, the collective agreement, carrying the approval of the Governor in Council as well as of the Civil Service Commission, amounts to a deliberate subordination of whatever unilateral power of dismissal the Governor in Council otherwise might have had. Moreover, when s. 57 says “Nothing herein contained”, it cannot have the effect of overcoming a bargain negotiated in good faith outside of the purview of the Civil Service Act and under other authorizing legislation.

I wish to dwell briefly on the nature of the common law power of the Crown to dismiss at pleasure. Section 57 uses the word “power” and not the word “prerogative”, which has sometimes been used in this as in other connections where Crown authority is involved. In Shenton v. Smith[3], the Privy Council rejected the designation of “prerogative” to characterize the Crown’s right to dismiss civil servants. The law in Canada, in Canadian provinces, as well as in other common law jurisdictions has gone far down the road to establishing a relative equality of legal position as between the Crown and those with whom it deals, too far in my opinion to warrant a reversion to an anachronism.

In a thorough canvass of Crown liability (with emphasis on Australia, New Zealand and the United Kingdom), Hogg points out that the legal basis of the rule of dismissal at pleasure is obscure: Liability of the Crown (1971), at p. 150. In its application to civil servants, it represented a somewhat uncritical acceptance of a rule governing members of the armed forces. Here one could, more properly, speak of prerogative but I see no correspondence between the position of members of the armed forces and civilian employees engaged in a variety of clerical jobs. Given that there was at common law a power to dismiss such employees at pleasure, I would opt for the view, the better view in Hogg’s discussion of the matter (op. cit., at p. 154), that this power can be subjected to contractual limitation.

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The Crown’s capacity to contract, if it was ever in doubt, and the right to enforce against it contracts into which it has entered is underlined in Nova Scotia by the Proceedings Against the Crown Act, R.S.N.S. 1967, c. 239, s. 3(b). This provision, which is under the heading of “Substantive Law”, gives the right to enforce claims against the Crown in all cases in which the claim arises out of a contract entered into by or on behalf of the Crown. The statute, a general one, contains no exclusion or exemption of engagements with civil servants. At best, in my view, the power to dismiss at pleasure could be regarded as an implied term of an engagement which contained no contrary provision. That is not this case.

There are decisions, referred to by Hogg at pp. 151-5 of his book, which are not altogether consistent on the question whether the Crown may be sued on its contracts of employment or even on the question whether the relationship with employees may properly be characterized as contractual. I need not dwell on them here because, apart from what I regard as the preferable position, the legislation that operates in the present case puts the issue beyond debate.

Clearly, the common law position has been expressly displaced by an authorized collective agreement which owes as much to the Nova Scotia Government Employees Association Act as it does to the ratifying regulation under s. 9 of the Civil Service Act. Further, there is no derogation from the terms of the Civil Service Act. The effect of s. 57 has, rather, been overcome by a collective agreement negotiated outside the Civil Service Act by competent parties. They were entitled, pursuant to the authorization to bargain collectively found in the Nova Scotia Government Employees Association Act, to provide as they did for protection against allegedly unjustified dismissal and to adapt to their purposes the arbitration provisions of the Civil Service Joint Council Act, provisions which incorporate s. 8 of that Act directing the implementation of arbitration decisions notwithstanding the provisions of the Civil Service Act.

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This is sufficient to dispose of this case, without reference to other considerations urged upon the Court by the appellants. I would, accordingly, allow the appeal, set aside the judgments of the courts below and direct that Wilson’s second grievance be submitted to arbitration under the collective agreement. The appellants are entitled to costs throughout.

The reasons of Martland, Ritchie and Estey JJ. were delivered by

MARTLAND J.—This appeal is from a judgment of the Appeal Division of the Supreme Court of Nova Scotia which unanimously upheld the judgment at trial sustaining the right of the Governor in Council to dismiss the appellant, Wilson, an employee in the civil service under the provisions of s. 57 of the Civil Service Act (“the Act”), R.S.N.S. 1967, c. 34. These judgments rejected the contention of the appellants that it was necessary for the Crown to show just and sufficient cause for the dismissal, pursuant to the provisions of an agreement made between Her Majesty in Right of the Province of Nova Scotia, represented by the Civil Service Commission (“Commission”), and the Nova Scotia Government Employees Association (“Association”), hereinafter referred to as “the agreement”.

The facts which give rise to this appeal are as follows.

The appellant Wilson (“Wilson”) was appointed on a probationary basis as a Soil and Crops Specialist with the Department of Agriculture and Marketing on July 15, 1974. The position requires the skills of a trained agronomist and involves making recommendations to farmers on crop production methods. The probationary period was for twelve months and on June 20, 1975, Wilson was told by the Director of Soils and Crops that his work had proved unsatisfactory and that his appointment was not going to be made permanent. The Director gave him the reasons for his opinion. However, Wilson’s probationary period was validly extended six months, due to expire on January 14, 1976.

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On December 10, 1975, Wilson was again told that his services were unsatisfactory. The Deputy Minister of Agriculture and Marketing by a letter dated December 23, 1975, informed Wilson that his services would not be required after the expiry of his probationary appointment on January 14, 1976. Wilson filed a grievance alleging that he was being treated unjustly and arbitrarily by not being recommended for a permanent position and by the termination of his employment on January 14, 1976.

Wilson’s grievance proceeded through the levels of the grievance procedure stipulated by the agreement until a Civil Service Arbitration Board was appointed pursuant to s. 7 of the Civil Service Joint Council Act, R.S.N.S. 1967, c. 35 (now repealed by 1978 (N.S.), c. 3, s. 47). The Board held (and it was conceded) that by the terms of the agreement the Commission was the employer and therefore the Deputy Minister was not the proper person to dismiss Wilson. The Board on September 22, 1976, ordered that Wilson be confirmed as a permanent employee.

The relevant provisions of the agreement are as follows:

10.01 An employee may be appointed to his position on a probationary basis for a period not to exceed twelve months.

10.02…

(B) The Employer may, before the expiration of the employee’s initial twelve month period of appointment on a probationary basis, extend the probationary appointment for a period not to exceed six months.

…

10.04 The Employer may terminate a probationary appointment at any time.

10.05 The Employer shall, after the employee has served in a position on a probationary basis for a period of twelve months, except as provided in Article 10.02(B) confirm the appointment on a permanent basis.

…

23.01 The provisions for Arbitration contained in the Civil Service Joint Council Act shall apply to grievances resulting from this Agreement.

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24.01 No employee who has completed his probationary period shall be disciplined by suspension without pay or by discharge except for just and sufficient cause.

…

24.03 Where an employee alleges that he has been suspended or discharged in violation of Article 24.01 he may within ten days of the date on which he was notified in writing or within twenty days of the date of his suspension or discharge, whichever is later, invoke the grievance procedure including provisions for Arbitration contained in the Civil Service Joint Council Act, and for the purpose of a grievance, alleging violation of Article 24.01 he shall lodge his grievance at the final level of the grievance procedure.

After the lodging of the grievance and before the decision of the Board was rendered, the Governor in Council by Order in Council 76-177 dated February 17, 1976, pursuant to s. 57 of the Act, terminated Wilson’s employment, effective on and after February 12, 1976.

This termination of employment was grieved in the manner required by the agreement and the appointment of another Civil Service Arbitration Board was requested by the Civil Service Joint Council. The Minister responsible refused to appoint a board stating that “the Civil Service Arbitration Board is not the proper forum to challenge the actions of the Governor in Council”.

The appellants applied by originating notice of motion under the Arbitration Act, R.S.N.S. 1967, c. 12, for appointment of an arbitration board to consider Wilson’s grievance respecting his dismissal by the Order in Council. Counsel for the Attorney General claimed that the dismissal was not a “grievance resulting from this Agreement” (art. 23.01), that it was therefore not arbitrable, and that no arbitrators could be appointed.

The appellants’ motion was dismissed. The appellants appealed to the Appeal Division. The appeal was dismissed by a unanimous judgment of

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the Appeal Division. The appellants have appealed to this Court from that judgment.

The matters in issue in this appeal occurred prior to the enactment of the Civil Service Collective Bargaining Act, 1978 (N.S.), c. 3. This fact is pointed out in the reasons of MacKeigan C.J. who delivered the reasons of the Appeal Division. Dealing with the status of the agreement on which Wilson relies, he said:

The collective agreement there involved was made prior to the Civil Service Collective Bargaining Act, Stats. N.S. 1978, c. 3. It is not authorized by any statute. Its only possible basis for legal validity and enforceability between the parties is that it was approved by Order in Council on November 25, 1975 as a “regulation” pursuant to s. 9 of the Civil Service Act.

Section 9, which long antedated any collective bargaining in the civil service, authorizes the Civil Service Commission with the approval of the Governor in Council to make “Regulations” relating to employment in the Civil Service respecting many matters, including “(a) terms and conditions of employment”, compensation, classification, “(g) termination of employment and what constitutes resignation”, holidays and leave, hours of work and “(j) hearing and determination of complaints and grievances”.

This was one of the regulations made from time to time since 1972 which provided that “the Commission may enter into and execute an Agreement with the Nova Scotia Government Employees Association” in respect of a specified group of employees, in substantially the form set out in a schedule to the regulation, and which stated that the agreement when executed “shall constitute the terms and conditions of employment” of the employees.

The agreement came into effect as a result of a regulation made by the Commission on October 29, 1975, which stated that the Commission might enter into an agreement with the Nova Scotia Government Employees Association in respect of employees in the Professional and Administrative Classification and Pay Plan. The regulation stated that the agreement, when executed by the Commission and the Association, should constitute the terms and conditions of employment of employees in that classification.

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This regulation was approved by the Governor in Council on November 25, 1975, pursuant to s. 9 of the Act.

The Act is designed to regulate the civil service of Nova Scotia. It provides for the creation of a Civil Service Commission whose powers and duties are defined. The Commission is empowered by s. 9, with the approval of the Governor in Council, to make regulations relating to employment in the Civil Service respecting a number of matters, including those mentioned in Chief Justice MacKeigan’s reasons.

Under the heading of “Appointments”, s. 22 provides: “Except where otherwise expressly provided, all appointments to the Civil Service shall be upon examination pursuant to this Act and the regulations and shall be during pleasure”.

Following the portion of the Act dealing with the duties of the Commission, there is a part of the Act headed “General”. One of the sections appearing under this heading is s. 57 dealing with a power of the Governor in Council:

57 Nothing herein contained impairs the power of the Governor in Council to remove or dismiss any Deputy Head or employee.

In my opinion, the effect of this section is to retain for the Governor in Council an overriding power to dismiss any civil service employee. The opening words of this section permit the exercise of that power notwithstanding any other provision contained in the Act.

The agreement on which Wilson relies regulates the terms and conditions of employment of civil servants within the classification to which it relates but does so only by virtue of a regulation made by the Commission pursuant to s. 9 of the Act. However, the power of the Commission to make the regulation was, by the terms of s. 57, made subject to the provisions of that section. The regulation could only be made subject to the power of the Governor in Council to dismiss.

Counsel for the appellants made four submissions in support of his appeal. The first contention

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was that s. 57 merely preserved a Crown prerogative to dismiss at pleasure and that, at common law, that prerogative was inapplicable where the employment of an employee of the Crown was governed by a contract requiring just cause for dismissal.

This argument overlooks the fact that under s. 57 of the Act the power to dismiss is statutory and that such statutory power is declared to exist without impairment by anything in the Act. The contract upon which the appellants rely has validity as a result of a regulation made under s. 9, and nothing contained in s. 9 can impair the power to dismiss given by s. 57.

The appellants’ second submission placed reliance upon s. 22 of the Act which states that “Except where otherwise expressly provided, all appointments to the Civil Service… shall be during pleasure”. The contention is that the regulation approving the agreement and the provisions of that agreement do provide otherwise and consequently the appellant’s appointment was not during pleasure.

The answer to this submission is that, although it might have merit if the appellant’s dismissal had been founded on s. 22 standing alone, the provisions of s. 22 are themselves subject to the power to dismiss by the Governor in Council under s. 57 and under that section nothing contained in s. 22 can affect that power.

The third argument is that subs. 54(1) of the Act authorizes the enforcement of the “just cause” provision despite s. 57. Subsection 54(1) provides as follows:

54 (1) In any case where the Commission considers that it is not practicable or not in the public interest that this Act shall apply to any position or positions, the Commission, with the approval of the Governor in Council, may exclude such position or positions in whole or in part from the operation of the Act, and make such special regulations as it deems advisable respecting such position or positions.

In my opinion, the provisions of this subjection are not relevant to the circumstances of this case.

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It provides that the Commission may, if it considers that it is not practicable or in the public interest to have the Act apply to certain positions in the civil service, with the approval of the Governor in Council exclude such positions from the operation of the Act.

The Commission did not purport to exclude the appellant’s position or the position of those civil servants within the classification defined in the agreement from the operation of the Act. On the contrary, by making the regulation under the Act to authorize the agreement, the Commission was dealing with the classifications of civil servants which included the appellants pursuant to the operation of the Act.

The appellants’ final submission was that the statute which incorporated the Association, 1973 (N.S.), c. 136, permitted the enforcement of the “just cause” provision independently of s. 57. This statute created and established the Nova Scotia Government Employees Association as a body corporate. The Association succeeded and replaced an unincorporated Nova Scotia Government Employees Association which had previously existed. The objects of the Association include bargaining collectively with Her Majesty the Queen in the right of Nova Scotia. The Association is empowered under para. 6(d) of the statute:

6…

(d) to enter into arrangements with any authorities, governmental, municipal, local, or otherwise that may seem conducive to the attainment of the Association’s objects or any of them, and to obtain from any such authority, rights, privileges and concessions which the Association may have and the capacity to receive and may think desirable to obtain, to carry out, execute, exercise or comply with any such arrangements, rights, privileges and concessions;

The appellants’ submission, as I understand it, is that this statute is independent of the Act and that its provisions are not affected by the opening words of s. 57 which refers to “Nothing herein contained”, i.e., contained in the Act. It is urged that by virtue of para. 6(d) the Association can obtain rights, privileges and concessions under the

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agreement which are then exempt from the operation of s. 57.

However, the fact is that the statute which created the Association did not confer on the Association or its members any rights or privileges as against the Crown. It is an incorporating statute creating a corporate entity. The Association is empowered to bargain collectively with the Crown, as it did here, but such bargaining had to be effected pursuant to the Act. The bargaining resulted in the agreement, but the agreement when made only acquired validity when approved by the Governor in Council as a regulation under s. 9 of the Act. Section 9 and the regulations pursuant to it are subject to the provisions of s. 57.

Reference is made in the appellants’ argument to the Civil Service Joint Council Act, 1967 (N.S.), c. 6; R.S.N.S. 1967, c. 35; which was repealed by s. 47 of the Civil Service Collective Bargaining Act, 1978 (N.S.), c. 3. This statute, which preceded by six years the incorporation of the Association, provided a machinery for considering the terms of employment of civil servants. It provided for the creation of a Civil Service Joint Council composed of three public servants appointed by the Governor in Council, three members appointed by the Governor in Council on the recommendation of the Nova Scotia Civil Service Association and a chairman appointed by the Governor in Council.

The chairman was required to prepare the agenda of meetings and to put on the agenda at the request of a member any matter concerning the terms of employment of civil servants. The Council was required to consider and negotiate such matters as were put on the agenda. The Appeal Division of the Supreme Court of Nova Scotia in Nova Scotia Government Employees Association, Scratch, Theriault and Watts v. Nova Scotia Civil Service Commission[4] held that the Council did not have jurisdiction to consider individual grievances, but that its jurisdiction was concerned only with general terms of employment.

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Provision was made in the statute for a Civil Service Arbitration Board.

Section 8 provided as follows:

8 The Governor in Council, notwithstanding the provisions of the Civil Service Act, is empowered to and subject to Section 9 shall implement any decision of the Joint Council or the Arbitration Board and the Civil Service Commission is empowered to and subject to Section 9 shall implement such a decision in the same manner as it implements a provision of the Civil Service Act or a regulation made thereunder.

Counsel for the appellants submits that this section would permit the enforcement of a collective agreement against the Crown “notwithstanding the provisions of the Civil Service Act”. Whether this is so or not, it is not an issue which is before the Court on this appeal. We are not concerned with any decision of the Joint Council or of the Arbitration Board. Neither of these bodies had anything to do with the formulation of the agreement.

For the foregoing reasons, I would dismiss the appeal with costs.

Appeal allowed with costs.

Solicitors for the appellants: Kitz, Matheson, Green & Maclsaac, Halifax.

Solicitors for the respondents: J.W. Kavanagh and Mollie Gallagher, Halifax.