Canada (Attorney General) v. Public Service Alliance of Canada

Canada (Attorney General) v. Public Service Alliance of Canada
Collection
Supreme Court Judgments
Date
1991-03-21
Report
[1991] 1 SCR 614
Case number
21393
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Labour law
Notes
SCC Case Information: 21393
Decision Content
Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614
Public Service Alliance of Canada Appellant
v.
Her Majesty The Queen represented by
the Attorney General of Canada Respondent
and
Econosult Inc. Mis en cause
Indexed as: Canada (Attorney General) v. Public Service Alliance of Canada
File No.: 21393.
1990: May 22; 1991: March 21.
Present: Lamer C.J.* and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the federal court of appeal
Labour relations ‑‑ Public Service ‑‑ Employment -- Teachers working in penitentiary pursuant to government contract with private corporation ‑‑ Teachers provided by private corporation doing same work as those in service of Solicitor General ‑‑ Public Service Staff Relations Board concluding that teachers were Government employees for purposes of collective bargaining ‑‑ Whether Board had jurisdiction to determine who is employee of Public Service ‑‑ Public Service Staff Relations Act, R.S.C. 1970, c. P‑35, ss. 2, 33, 98.
Administrative law ‑‑ Judicial review ‑‑ Jurisdictional error ‑‑ Standard of review.
When educational programs for inmates of federal penitentiaries were instituted by the Solicitor General, the teachers hired became part of the Solicitor General's staff, were classified as civil servants and formed part of a bargaining unit known as the Educational Group. The Solicitor General later decided to privatize the educational programs. Accordingly, the Government entered into a contract with Seradep Inc. for the supply of teachers to provide instruction at one of its penitentiaries. The duties of these teachers were precisely defined by the Government. They were under the control of a supervisor employed by Seradep Inc. but it was a member of the correctional service who monitored the quality of instruction. When the contract with Seradep Inc. expired, a similar contract was concluded with Econosult Inc. Both contracts contained a clause stating expressly that the teachers were not hired as employees of the Crown. While the contract with Seradep Inc. was still in force, the appellant filed an application with the Public Service Relations Board seeking first, a declaration that all teaching employees at the penitentiary, including those provided by Seradep Inc., were employees of the Government, and second, that these teachers were members of the Educational Group for which the appellant was the certified bargaining agent. The application was based upon ss. 33 and 98 of the Public Service Staff Relations Act . The Board adopted the view that in the context of labour relations, the "substance" rather than the "form" of the relationship must be examined. It concluded that a true employer/employee relationship existed between the Solicitor General and the teachers supplied by Econosult Inc. in spite of the existence of the contract and granted appellant's application. The Federal Court of Appeal set aside the Board's decision. The majority held that the Board did not have the jurisdiction to decide who was an employee of the Public Service. Rather, the Board's authority applied only to public servants recognized as such by legislation other than its enabling statute and by the authority of a body other than itself.
Held (Cory J. dissenting): The appeal should be dismissed.
Per Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ.: The standard of review will depend on whether the interpretation of s. 33 of the Public Service Staff Relations Act and, in particular, the word "employees" contained therein, was intended by Parliament to be left to the Board or whether it is a provision limiting jurisdiction. If it is the latter then the Board's interpretation is reviewable if it is wrong. If, however, the interpretation of s. 33 and more specifically the meaning of the term "employees", was intended to be left to the Board then its decision is not reviewable unless the interpretation placed upon those provisions is patently unreasonable and the Board thereby exceeded its jurisdiction. In determining whether there has been a simple error in interpreting a provision conferring or limiting jurisdiction as in determining whether jurisdiction has been exceeded by a patently unreasonable error a pragmatic and functional approach must be adopted.
The application of the pragmatic and functional approach to the construction of these provisions leads to the conclusion that Parliament did not intend to confer jurisdiction on the Board with respect to the labour relations of employees who are not members of the Public Service.
First, the Board's function under s. 33 is to determine whether employees, as defined in the Act, are included in a bargaining unit. By expressly defining the word "employee" in s. 2, Parliament clearly indicated its intention to limit the Board's jurisdiction to persons employed in the Public Service and who are not covered by the Canada Labour Code .
Second, the creation of a category of de facto public servant is not in keeping with the purpose of the legislation. The Public Service Staff Relations Act , the Public Service Employment Act and the Financial Administration Act , when read with the Canada Labour Code , reveal a scheme to create two separate and distinct labour regimes for two categories of federal employees. There is no place in this legal structure for a public servant without a position created by the Treasury Board and without an appointment made by the Public Service Commission. Moreover, the reason for the Board's existence in this scheme of labour relations is the resolution of labour management disputes between the Federal Government and its employees. Those who are authorized to bring disputes before the Board are employees, employee organizations and employers as defined in the legislation which clearly confines the ambit of these disputes to the Public Service. No purpose is served by extending its jurisdiction to employees outside the Public Service who have recourse to other labour relations legislation, either federal or provincial.
Third, in providing a clear definition of the employees and the employer who are subject to the Board's jurisdiction, Parliament clearly showed its intention that the Board should not rely on its general labour expertise to extend the reach of this definition.
The conclusion that Parliament did not confer jurisdiction on the Board with respect to the labour relations of employees who are not members of the Public Service is not at variance with previous decisions of this Court. No case gives the Board the authority to decide that persons hired by a private contract fall within the definition of "employee" in the Public Service Staff Relations Act notwithstanding that they have not been appointed as public servants in accordance with the established statutory requirements.
Per Cory J. (dissenting): The application of the functional and pragmatic approach set forth in Bibeault clearly establishes that the Board had jurisdiction under s. 33 of the Public Service Staff Relations Act to decide whether the Econosult Inc. teachers were members of the bargaining unit.
The purpose of the Act, as reflected by s. 98 , is to provide the means for achieving the speedy resolution of disputes arising out of a collective agreement between the Federal Government and its employees. While the Board is required under s. 33 to determine who are the members of a bargaining unit, it was not necessary in this case for the Board, in carrying out its assigned role under that section, to determine whether an employee was a member of the Public Service ‑‑ i.e., an employee as defined in s. 2. A person can well be a member of a bargaining unit for collective bargaining purposes, and yet not be a public servant entitled to all the special benefits and perquisites that flow from membership in the Public Service. Here, in making its decision as to whether teachers doing the same work in the same institution should belong to the same bargaining unit, the Board carried out a function which lay logically at the heart of the specialized jurisdiction confided to the Board by the Act. The wording of s. 98 itself made it incumbent on the Board to make a finding on this issue.
Further, it is apparent that the Board's raison d'être is the resolution of labour management disputes that may erupt between the Federal Government and its employees, and the Board acted within its area of expertise in that field and carried out its mandate in deciding that the Econosult Inc. teachers were members of the bargaining unit. The Board has been given wide powers and its decisions, which are protected by a privative clause, require the utilization of expert skill or knowledge in the field of labour relations involving the Federal Government and its employees. The question of whether a person can be an employee, for the purposes of collective bargaining, without going through the formalities set out in the Public Service Employment Act, is a substantive question that the Board was required to consider in order to attain the aim of the Public Service Staff Relations Act and to fulfill its role.
The Board's decision was not patently unreasonable. A person need not be appointed by the Public Service Commission pursuant to s. 8 of the Public Service Employment Act in order to be classified as an employee of the Federal Government and a member of a bargaining unit under s. 33 of the Public Service Staff Relations Act . It is not the form of the arrangement or the expressed intent of the Government which is determinative of the issue; rather, it is the substance of the relationship that must govern the decision. Here, it was apparent that, quite apart from appointments made under s. 8 of the Public Service Employment Act , government officials could de facto create a position. The Board, after carefully examining the situation of the contract workers, determined that they were employees of the Federal Government for collective bargaining purposes. The Board's decision was consistent with the facts presented, the decided cases and with the provisions of the Public Service Staff Relations Act , and appeared to be a reasonable one.
Cases Cited
By Sopinka J.
Applied: U.E.S., local 298 v. Bibeault, [1988] 2 S.C.R. 1048; referred to: Syndicat Général du Cinéma et de la Télévision (S.G.C.T.) v. The Queen, [1978] 1 F.C. 346; Doré v. Canada, [1987] 2 S.C.R. 503; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; Service Employees International Union, Local 204 v. Kennedy Lodge Inc., [1984] O.L.R.B. Rep. July 931; Brantwood Manor Nursing Homes Ltd. (1986), 12 C.L.R.B.R. (N.S.) 332; Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489; Canada Post Corp. v. C.U.P.W., [1989] 1 F.C. 176.
By Cory J. (dissenting)
Syndicat Général du Cinéma et de la Télévision (S.G.C.T.) v. The Queen, [1978] 1 F.C. 346; Doré v. Canada, [1987] 2 S.C.R. 503; Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147; Re Racal Communications Ltd., [1981] A.C. 374; O'Reilly v. Mackman, [1983] 2 A.C. 237; Gray v. Powell, 314 U.S. 402 (1941); National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111 (1944); Udall v. Tallman, 380 U.S. 1 (1965); Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, [1970] S.C.R. 425; Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756; Blanco v. Rental Commission, [1980] 2 S.C.R. 827; Volvo Canada Ltd. v. U.A.W., Local 720, [1980] 1 S.C.R. 178; Douglas Aircraft Co. of Canada v. McConnell, [1980] 1 S.C.R. 245; Alberta Union of Provincial Employees, Branch 63 v. Board of Governors of Olds College, [1982] 1 S.C.R. 923; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; Teamsters Union, Local 938 v. Massicotte, [1982] 1 S.C.R. 710; Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489.
Statutes and Regulations Cited
Canada Labour Code, R.S.C., 1985, c. L‑2, ss. 5 , 6 , 16 .
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Financial Administration Act, R.S.C., 1985, c. F‑11, s. 11(2) [am. c. 9 (1st Supp.), s. 22(2) ], (3).
Industrial Relations Act, R.S.B.C. 1979, c. 212, s. 34(1) [am. 1987, c. 24, s. 24].
Labour Code, R.S.Q. 1977, c. C‑27, s. 39 [am. 1983, c. 22, s. 21].
Labour Relations Act, R.S.M. 1987, c. L10, s. 142(5).
Labour Relations Act, R.S.O. 1980, c. 228, s. 106(2).
Labour Relations Code, S.A. 1988, c. L‑1.2, s. 11(3).
Public Service Employment Act, R.S.C. 1970, c. P‑32, ss. 2 "employee", "Public Service", 8, 22 to 27.
Public Service Staff Relations Act, R.S.C. 1970, c. P‑35, ss. 2 "employee", "employer", "Public Service", 3, 7, 33, 57, 98 [am. 1974‑75‑76, c. 67, s. 27].
Trade Union Act, R.S.N.S. 1989, c. 475, s. 19(1).
Authors Cited
Craig, Paul P. Administrative Law, 2nd ed. London: Sweet & Maxwell, 1989.
Schwartz, Bernard and H. W. R. Wade. Legal Control of Government: Administrative Law in Britain and the United States. Oxford: Clarendon Press, 1972.
Wade, Sir William. Administrative Law, 6th ed. Oxford: Clarendon Press, 1988.
APPEAL from a judgment of the Federal Court of Appeal, [1989] 2 F.C. 633, allowing respondent's application under s. 28 of the Federal Court Act to review and set aside a decision of the Public Service Staff Relations Board (1988), 13 P.S.S.R.B. Decisions 6. Appeal dismissed, Cory J. dissenting.
Dianne Nicholas, for the appellant.
Raymond Piché and Gaspard Côté, for the respondent.
//Sopinka J.//
The judgment of Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ. was delivered by
Sopinka J. -- The question raised by this appeal is whether the Public Service Staff Relations Board (the "Board") had jurisdiction to decide that teachers working in the Cowansville Penitentiary pursuant to a government contract with the mis en cause Econosult Inc. ("Econosult") were employees in the Public Service within the meaning of the Public Service Staff Relations Act, R.S.C. 1970, c. P-35 ("Staff Relations Act"). I have had the benefit of reading the reasons of my colleague Cory J. and with respect, I cannot agree with the conclusion that he has reached.
1. Facts and Proceedings
In 1971, the Solicitor General for Canada instituted educational programs for the inmates of federal penitentiaries. The educational services were to be provided by Government employees. In 1984, the Solicitor General decided to privatize the educational programs by having recourse to agencies in the private sector to provide the required teaching services. There were several reasons motivating this decision. In addition to ensuring the high quality of the programs by requiring that the education of the inmates be provided by teachers from accredited Boards of Education, colleges and universities, it was hoped that the privatization would bring about certain advantages such as lower cost, efficiency and flexibility as to the variety of courses available to inmates.
Accordingly, in May of 1985, Supply and Services Canada entered into a contract with Seradep Inc. ("Seradep") for the supply of teachers to provide instruction at the Cowansville Penitentiary in Quebec. The duties of the employees of Seradep were precisely defined by the Government, but they were nonetheless to be under the control of a supervisor employed by Seradep. A member of the correctional service was to monitor the quality of instruction.
When the contract with Seradep expired in July 1987, a similar contract was concluded with Econosult. Both contracts contained a clause stating expressly that the teachers were not hired as employees of the Crown:
This is a Contract for the performance of a service and the Contractor is engaged as an independent Contractor for the sole purpose of providing a service. Neither the Contractor nor any of his personnel is engaged as an employee, servant or agent of Her Majesty. The Contractor further agrees to be solely responsible for any and all payments and/or deductions required to be made respecting Unemployment Insurance, Workmen's Compensation, Income Tax or such payment deductions falling within this particular category. [Emphasis added.]
While the first contract with Seradep was still in force, the appellant, the Public Service Alliance of Canada ("P.S.A.C."), filed an application with the Board seeking first, a declaration that all teaching employees at the Cowansville Penitentiary, including those provided by Seradep, were employees of the Federal Government and second, that these teachers were members of the Educational Group for which the P.S.A.C. was the certified bargaining agent. The specific findings which the Board was asked to make were as follows:
[translation]
(a)find that all teaching employees at the Cowansville Penitentiary are employees of the respondent employer (Her Majesty the Queen in right of Canada, represented by the Treasury Board), including those providing their services through Seradep Inc.;
(b)find that all employees teaching at the Cowansville Penitentiary are members of the Education Group (ED) of the bargaining unit;
(c)find that the Public Service Alliance of Canada is the certified bargaining agent for all employees teaching at Cowansville Penitentiary;
(d)find that the respondent employer must comply with clause 10 of the collective agreement concerning the withholding of union dues . . . .
Decision of the Board
The Board acknowledged at the outset that if it were to be limited by what it considered to be mere "form", there would be no controversy that the teachers in question were employees of Econosult. Moreover, it was not disputed that there were differences in the hiring process and working conditions of the Econosult employees as opposed to Government employees. First, a supervisor employed by Econosult was responsible for overseeing the services provided by the latter as opposed to the Government employees who were under the supervision of a member of the correctional service. Second, only the Government employees were sworn in as public servants under oath of office. Third, the working conditions of the Government employees were to be negotiated collectively pursuant to the Staff Relations Act in contrast to the teachers from the private sector whose working conditions were negotiated on an individual basis with Econosult. Finally, the contract between the Government and Econosult provided explicitly that the latter was responsible for the hiring of the teachers as opposed to Government employees who are hired following the procedure provided for in the Public Service Employment Act, R.S.C. 1970, c. P-32 ("Employment Act").
Notwithstanding these significant differences, the Board concluded that the true employer of the said teachers was the Government of Canada. As employees of the Government of Canada it was not contested that they were members of the bargaining unit (Educational Group). The Board adopted the view that in the context of labour relations, the "substance" rather than the "form" of the relationship must be examined. The Board was of the opinion that the evidence revealed that Econosult played a rather "marginal" role in the work-life of the teachers.
The Board made the findings which were requested in the following terms:
Having regard to all the above conclusions, my decision is as follows:
(a) I declare that the teachers working at the Correctional Service Canada Cowansville Institution as "contract workers" for Econosult Inc., including Mrs. Lise Côté, the supervisor of education, are included in the teaching group bargaining unit, for which the Applicant is the bargaining agent under the Public Service Staff Relations Act ;
(b) I declare that the same persons were included in that bargaining unit in the month of February 1987;
(c) I declare that the Treasury Board is obligated to comply with section 10 of the basic agreement, relating to union check off, with respect to these employees, commencing with the month of February 1987;
(d) I order the Treasury Board to pay to the Applicant an amount equal to the amount that the latter would have collected if the Treasury Board had complied with section 10 of the agreement in question between February 1 and September 30, 1987; and
(e) I shall retain jurisdiction over the reference under section 98 for the purpose of settling possible problems with respect to the calculation of the amount due to the Applicant.
Federal Court of Appeal, [1989] 2 F.C. 633
Marceau J.A., writing for the majority, made three observations leading to the conclusion that the Board had exceeded its jurisdiction in this case. First, public servants constitute a separate regime of labour relations and must be distinguished from employees of the private and semi-private sector. For example, s. 6 of the Canada Labour Code, R.S.C., 1985, c. L-2 , states expressly that Part I, dealing with "Industrial Relations", does not apply in respect of the employment of public servants. Marceau J.A. observed that the Public Service regime is defined in three statutes which must be read together and interpreted accordingly: the Employment Act, the Staff Relations Act and the Financial Administration Act, R.S.C., 1985, c. F-11 (previously R.S.C. 1970, c. F-10). Second, Marceau J.A. distinguished this case from those involving a dispute as to whether a person is an independent contractor or employee. There was no dispute in the case at bar that the teachers provided by Econosult were employees rather than independent contractors. The only controversy was whether they were Government employees or employees of Econosult. Finally, Marceau J.A. emphasized that in the case of employees of the private or semi-private sector, the legal relationship may be inferred from a situation of fact and no particular form is necessary to give rise to the relationship of employer/employee. On the other hand, the status of a public servant cannot be inferred from a mere situation of fact, as employment in the Public Service is subject to a comprehensive set of rules which are strictly enforced. For example, the Staff Relations Act defines precisely when a position will be considered to be part of the "Public Service". The Financial Administration Act confers on the Treasury Board the exclusive power to approve the creation of new positions and to determine their classification as well as their distribution amongst the various organs of the public administration. By virtue of the Employment Act, the Public Service Commission is entrusted with the exclusive power to appoint persons to the Public Service by way of nominations based on merit.
These observations led Marceau J.A. to the finding that the Board did not have jurisdiction to determine who is a member of the Public Service. He concluded that the Board's authority extends only to public servants recognized as such by a statute other than its governing statute and appointed by the authority of a body other than itself. The majority therefore referred the matter back to the Board for a determination of the application on the basis that the teachers employed by Econosult are not employees within the meaning of the Staff Relations Act.
Hugessen J.A. differed from the majority. He found support for the jurisdiction of the Board to decide the matter for the reasons given in Syndicat Général du Cinéma et de la Télévision (S.G.C.T.) v. The Queen, [1978] 1 F.C. 346. Hugessen J.A. also considered the decision of this Court in Doré v. Canada, [1987] 2 S.C.R. 503, as determinative that the decision as to what constitutes the creation of a position and the appointment to a position must be reached by means of an assessment of the facts in each case and not simply by looking to the intention of the employer.
2.Relevant Statutory Provisions
The application by the P.S.A.C. was based on ss. 33 and 98 of the Staff Relations Act:
33. Where, at any time following the determination by the Board of a group of employees to constitute a unit appropriate for collective bargaining, any question arises as to whether any employee or class of employees is or is not included therein or is included in any other unit, the Board shall, on application by the employer or any employee organization affected, determine the question.
98. (1) Where the employer and a bargaining agent have executed a collective agreement or are bound by an arbitral award and
(a) the employer or the bargaining agent seeks to enforce an obligation that is alleged to arise out of the collective agreement or arbitral award, and
(b) the obligation, if any, is not an obligation the enforcement of which may be the subject of a grievance of an employee in the bargaining unit to which the collective agreement or arbitral award applies,
either the employer or the bargaining agent may, in the prescribed manner, refer the matter to the Board, which shall hear and determine whether there is an obligation as alleged and whether, if there is, there has been a failure to observe or to carry out the obligation.
(2) The Board shall hear and determine any matter referred to it pursuant to subsection (1) as though the matter were a grievance, and subsection 95(2) and sections 96 and 97 apply to the hearing and determination of that matter.
"Employee" and "employer" are defined in the Staff Relations Act as follows:
2. In this Act
. . .
"employee" means a person employed in the Public Service, other than [exceptions not applicable] . . .
. . .
"employer" means Her Majesty in right of Canada as represented by,
(a) in the case of any portion of the public service of Canada specified in Part I of Schedule I, the Treasury Board, and
(b) in the case of any portion of the public service of Canada specified in Part II of Schedule I, the separate employer concerned;
. . .
"Public Service" means the several positions in or under any department or other portion of the public service of Canada specified from time to time in Schedule I;
. . .
7. Nothing in this Act shall be construed to affect the right or authority of the employer to determine the organization of the Public Service and to assign duties to and classify positions therein.
The Employment Act provides:
2. (1) In this Act
"employee" means a person employed in that part of the Public Service to which the [Public Service] Commission has the exclusive right and authority to appoint persons;
. . .
"Public Service" has the same meaning as in the Public Service Staff Relations Act .
. . .
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.
Financial Administration Act
11. . . .
(2) Subject to the provisions of any enactment respecting the powers and functions of a separate employer but notwithstanding any other provision contained in any enactment, the Treasury Board may, in the exercise of its responsibilities in relation to personnel management including its responsibilities in relation to employer and employee relations in the public service, and without limiting the generality of sections 7 to 10,
(a) determine the requirements of the public service with respect to human resources and provide for the allocation and effective utilization of human resources within the public service;
(b) determine requirements for the training and development of personnel in the public service and fix the terms on which such training and development may be carried out;
(c) provide for the classification of positions and employees in the public service;
(d) determine and regulate the pay to which persons employed in the public service are entitled for services rendered, the hours of work and leave of those persons and any matters related thereto;
(e) provide for the awards that may be made to persons employed in the public service for outstanding performance of their duties, for other meritorious achievement in relation to those duties and for inventions or practical suggestions for improvements;
(f) establish standards of discipline in the public service and prescribe the financial and other penalties, including suspension and discharge, that may be applied for breaches of discipline or misconduct, and the circumstances and manner in which and the authority by which or whom those penalties may be applied or may be varied or rescinded in whole or in part;
(g) [repealed c. 9 (1st Supp.), s. 22(2)];
(h) determine and regulate the payments that may be made to persons employed in the public service by way of reimbursement for travel or other expenses and by way of allowances in respect of expenses and conditions arising out of their employment; and
(i) provide for such other matters, including terms and conditions of employment not otherwise specifically provided for in this subsection, as the Treasury Board considers necessary for effective personnel management in the public service.
3.Jurisdiction of the Board
(a) Standard of Review
In respect of the standard of review I am in substantial agreement with the principles stated by Cory J. In this appeal it is necessary to consider whether the Board, in concluding that it could entertain the application made to it by the appellant, was interpreting a statutory provision which confers or limits jurisdiction. Essentially, this requires a determination as to whether the interpretation of s. 33 of the Staff Relations Act and, in particular the word "employees" contained therein, was intended by Parliament to be left to the Board or whether it is a provision limiting jurisdiction. If it is the latter then the Board's interpretation is reviewable if it is wrong. If, however, the interpretation of s. 33 , and more specifically the meaning of the term "employees", was intended to be left to the Board then its decision is not reviewable unless the interpretation placed upon those provisions is patently unreasonable and the Board thereby exceeded its jurisdiction.
In essence, this is a distillation of this complex area of the law which was made by Beetz J. in U.E.S., local 298 v. Bibeault, [1988] 2 S.C.R. 1048, when he stated (at p. 1086):
It is, I think, possible to summarize in two propositions the circumstances in which an administrative tribunal will exceed its jurisdiction because of error:
1.if the question of law at issue is within the tribunal's jurisdiction, it will only exceed its jurisdiction if it errs in a patently unreasonable manner; a tribunal which is competent to answer a question may make errors in so doing without being subject to judicial review;
2.if however the question at issue concerns a legislative provision limiting the tribunal's powers, a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review.
In the recent decision of this Court in CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, La Forest J. stated (at p. 1003):
Where, as here, an administrative tribunal is protected by a privative clause, this Court has indicated that it will only review the decision of the Board if that Board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making a patently unreasonable error of law in the performance of its function; see Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227.
Although Wilson J. and L'Heureux-Dubé J. dissented, both agreed with the basis for judicial review adopted by La Forest J. For example, L'Heureux-Dubé J. remarked (at p. 1033):
I agree with my colleague La Forest J. that courts must defer to the judgment of administrative tribunals in matters falling squarely within the area of their expertise. It is now well-established that an administrative tribunal exceeds its jurisdiction because of error only if: (1) it errs in a patently unreasonable manner in respect of a question which is within its jurisdiction; or, (2) it commits a simple error in respect of a legislative provision limiting the tribunal's powers (see U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1086).
To the same effect see Wilson J. at p. 1020.
In determining whether there has been a simple error in interpreting a provision conferring or limiting jurisdiction, as in determining whether jurisdiction has been exceeded by a patently unreasonable error, a pragmatic, functional approach must be adopted. This emerges from the following statement of Beetz J. in Bibeault (at pp. 1088-89):
At this stage, the Court examines not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal. At this initial stage a pragmatic or functional analysis is just as suited to a case in which an error is alleged in the interpretation of a provision limiting the administrative tribunal's jurisdiction: in a case where a patently unreasonable error is alleged on a question within the jurisdiction of the tribunal, as in a case where simple error is alleged regarding a provision limiting that jurisdiction, the first step involves determining the tribunal's jurisdiction. [Emphasis added.]
Cory J. concludes that the interpretation of s. 33 of the Staff Relations Act is a matter within the jurisdiction of the Board. Since, in his opinion the decision of the Board is not patently unreasonable, he concludes that there is no basis for judicial review.
Adopting a pragmatic and functional approach to the construction of these provisions, I have come to the conclusion that Parliament did not intend to confer jurisdiction on the Board with respect to the labour relations of employees who are not members of the Public Service. The Board by an error of law has assumed jurisdiction that it was not intended to have. Its decision is, therefore, reviewable.
(b) Application of the Standard
(i) Wording of the Enactment
In my opinion the wording of s. 33 itself, aided by the definition of the word "employee" provided by s. 2, is practically decisive in this case. Section 33 is intended to enable the Board to resolve any question as to whether an employee or class of employees is or is not included in a bargaining unit. In the absence of a definition of "employee", it could be argued that the Board could determine who is an employee on the basis of tests that are generally employed in labour matters. These tests are customarily employed to resolve a dispute as to whether a person is an employee or an independent contractor. The express definition of "employee", however, shows a clear intention by Parliament that it has decided the category of employee over which the Board is to have jurisdiction. It is restricted to persons employed in the Public Service and who are not covered by the Canada Labour Code . The Board's function by the very words of s. 33 is not to determine who is an employee but rather whether employees who come within the definition provided, are included in a particular bargaining unit.
There is no provision in s. 33 or indeed in this statute that gives the Board exclusive jurisdiction to determine who is an employee on the basis of the Board's expertise. Such provisions are not uncommon in labour statutes when it is intended that the Board have the final word as to whether persons employed by the same employer are employees or independent contractors. One example of such a provision is s. 106(2) of the Ontario Labour Relations Act, R.S.O. 1980, c. 228. This exclusive power to determine who is an employee has been exercised to prevent an employer from contracting out work in breach of the collective agreement. This jurisdiction is usually exercised in the context of an unfair labour practice based on anti-union animus. Two cases decided by the Ontario Labour Relations Board illustrate the exercise of this power and, significantly, are cited by the Board in this case in support of its decision. They are Service Employees International Union, Local 204 v. Kennedy Lodge Inc., [1984] O.L.R.B. Rep. July 931, and Brantwood Manor Nursing Homes Ltd. (1986), 12 C.L.R.B.R. (N.S.) 332. Other examples of this express grant of jurisdiction to determine who is an employee are:
(1)Labour Relations Code, S.A. 1988, c. L-1.2, s. 11(3);
(2)Industrial Relations Act, R.S.B.C. 1979, c. 212, s. 34(1);
(3)The Labour Relations Act, R.S.M. 1987, c. L10, s. 142(5);
(4)Trade Union Act, R.S.N.S. 1989, c. 475, s. 19(1);
(5)Labour Code, R.S.Q. 1977, c. C-27, s. 39.
Typical of the wording is s. 16 of the Canada Labour Code which provides:
16. The Board has, in relation to any proceeding before it, power
. . .
(p) to decide for all purposes of this Part any question that may arise in the proceeding, including, without restricting the generality of the foregoing, any question as to whether
(i) a person is an employer or an employee . . . .
(ii) Purpose of the Statute and the Reasons for the Board's Existence
The three statutes referred to above when read with the Canada Labour Code reveal a scheme to create two separate and distinct labour regimes for two categories of federal employees. The legislation treats each category as mutually exclusive. Thus s. 3 of the Staff Relations Act limits the application of the Act to the Public Service. The Code applies to employees who work on federal works or undertakings. By virtue of s. 6 of the Code, public servants are excluded from its application. It is significant that s. 5 of the Code makes specific provision for employees who are employed by corporations established to perform work for the Government of Canada. Exclusion from the application of the Code and inclusion in the Public Service require an order of the Governor in Council. Public servants are a special category of employee whose particular status is incompatible with inclusion in a bargaining unit with non-public servants. The positions in the Public Service are determined by Treasury Board and appointments to the public service are within the exclusive right and authority of the Public Service Commission. Exceptions are carefully spelled out in the Employment Act.
Although Cory J. states that the teachers are found to be employees for collective bargaining purposes and not public servants for other purposes, I have some difficulty reading the Board's reasons that way. In paragraph 73 of the Board's reasons it states that the contract teachers are employees of the Government of Canada and that no one has contended that if they are such employees that they are not members of the bargaining unit. The conclusion that the teachers are employees of the Government of Canada is the basis for finding that they are included in the bargaining unit. A finding that they are employees of the Government of Canada simpliciter would clearly exceed the authority conferred by s. 33 and would fly in the face of s. 8 of the Employment Act which expressly reserves this power to the Public Service Commission. While I am of the view that this is the basis of the Board's