Attorney General of Quebec v. Labrecque and al.

Attorney General of Quebec v. Labrecque and al.
Collection
Supreme Court Judgments
Date
1980-11-12
Report
[1980] 2 SCR 1057
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Lamer, Antonio
On appeal from
Quebec
Subjects
Administrative law
Labour law
Decision Content
Supreme Court of Canada
Attorney General of Quebec v. Labrecque et al., [1980] 2 S.C.R. 1057
Date: 1980-11-12
Attorney General of the Province of Quebec Appellant;
and
Ernest Labrecque, Clerk of the Provincial Court, Judge Raymond Beaudet and the Provincial Court Respondents.
1980: May 6; 1980: November 12.
Present: Laskin C.J. and Martland, Ritchie, Beetz, Estey, McIntyre and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL OF QUEBEC
Labour law—Public service—Casual employees—Applicability of collective agreement—Whether grievance within jurisdiction of arbitrator or claim subject to jurisdiction of courts of law—Contractual relationship between the government and the employee—Civil Service Act, S.Q. 1965, c. 14, as amended, ss. 3, 16, 67, 70—Regulation concerning positions or offices of a casual nature, O.C. 1714 of Oct. 5, 1966, (1966) 98 G.O. 5451—Labour Code, R.S.Q. 1964, c. 141, ss. 1(g), 88.
Administrative law—Evocation—Action by a casual functionary for employment benefits—Jurisdiction of Provincial Court, Small Claims Division—Error by Court within the limits of its jurisdiction—Code of Civil Procedure, arts. 953, 980, 997.
Respondent Labrecque worked for the government of Quebec as a casual employee for three months. At the end of his contract he claimed from appellant, the Attorney General, in the Provincial Court, Small Claims Division, the sum of $168 for four days’ vacation, three holidays and one day sick leave. The Provincial Court judge allowed the claim and the Court of Appeal upheld the decision of the Superior Court refusing to authorize issuance of a writ of evocation from the Provincial Court judgment.
Held: The appeal should be dismissed.
The issue: The issue which arises is as to whether the Provincial Court judge had jurisdiction to render judgment. It should first be noted that art. 997 of the Code of Civil Procedure contains a private clause which places cases regarding the recovery of small claims outside the Superior Court’s power of evocation, and that art. 980 of the Code states that a judgment rendered in such cases is final and without appeal. It follows that while the Provincial Court cannot by an
[Page 1058]
erroneous interpretation of the law arrogate to itself a jurisdiction which it does not possess, it may, however, err in the exercise of its jurisdiction and, though erroneous, its judgment will then be unassailable, provided that it does not base itself on a deliberate error. The Attorney General raised two main grounds of appeal against Provincial Court jurisdiction.
The second ground: Appellant contended (this was his second ground, but it was examined by the Court first) that if respondent is entitled to the benefits claimed, this can only be pursuant to the collective agreement in effect between the government of Quebec and the Syndicat des fonctionnaires provinciaux, and that this agreement does not apply to casual employees. However, if the agreement is applicable, appellant submitted that respondent’s claim constitutes a grievance which can only be decided by an arbitrator, in accordance with the decision of this Court in General Motors v. Brunet, [1977] 2 S.C.R. 537. In light of the express provisions of the Regulation concerning positions or offices of a casual nature and their incumbents, the answer must be that the collective agreement is in no way applicable to casual employees. It follows from this that respondent’s claim cannot constitute a grievance based on that agreement and within the jurisdiction of an arbitrator. However, General Motors v. Brunet does not have the scope which the Attorney General suggests. Indeed, it is not enough that an employee cites a collective agreement for his claim to constitute an arbitrable grievance. A disagreement as to the applicability of the collective agreement does not constitute a grievance but a preliminary issue. As respondent’s claim cannot constitute a grievance, it can only be heard by the courts of law, if only to dismiss it if it is ill-founded. In the case at bar, it must necessarily be heard by the Provincial Court. However, the Provincial Court erred in relying on the collective agreement as its basis for upholding respondent’s claim, and it may even have made a twofold error. Its first error was in deciding that the collective agreement applied to casual employees such as respondent. Its second error was in having held that, if the collective agreement was applicable to casual employees, it had, to the exclusion of an arbitrator, jurisdiction to decide respondent’s claim. Nonetheless, these errors do not affect the jurisdiction of the Provincial Court, since it erred within the limits of its jurisdiction. Finally, although respondent presented no evidence of the existence of an individual contract, the existence of such a contract appears clearly to have been admitted, and it cannot be said that there was a total lack of evidence such as to authorize the issuance of a writ of evocation.
[Page 1059]
The first ground: The Attorney General further argued that there was no contract between the provincial government and its civil servants, rather a legal relationship arising out of law, and that therefore respondent’s claim is not a small claim within the meaning of art. 953 of the Code of Civil Procedure, as it does not have a contract for its cause. It must be presumed that the Regulation concerning casual employees was observed. Respondent therefore had a casual employment, to which he was appointed by a document from the head of the Department retaining his services. In a private business, this would have been a contract of service. The legal relationship is not changed by the fact that one of the parties to this relationship is the State and the other is a civil servant. The theory put forward by appellant in this connection could only be justified by the royal prerogative, and modern law has been hostile to the extension of the prerogative. It must accordingly be concluded that respondent was a contract employee and that he correctly followed the procedure specified for the recovery of small claims.
South East Asia Bricks Sdn. Bhd. v. Non Metallic Mineral Products Manufacturing Employees Union, [1980] 3 W.L.R. 318; Procureur général du Québec v. Tribunal du Travail et Syndicat des Fonctionnaires provinciaux, [1975] C.A. 8; General Motors v. Brunet, [1977] 2 S.C.R. 537, considered; Maluorni v. Ville Mont-Royal, [1969] Q.B. 922; Re Grottoli v. Lock & Sons Ltd. (1963), 39 D.L.R. 128; Cahoon v. Conseil de la corporation des ingénieurs, [1972] R.P. 209; Docteur Lefebvre v. Docteur Ledoux, [1973] C.A. 645; Amyot v. Léonard, [1974] C.A. 302; Bey v. Laliberté, [1976] C.A. 142; University of Saskatchewan v. S.C.F.P., [1978] 2 S.C.R. 834; Verreault & Fils v. Attorney General of Quebec, [1977] 1 S.C.R. 41; Shenton v. Smith, [1895] A.C. 229; Dunn v. The Queen, [1896] 1 Q.B. 116; Gould v. Stuart, [1896] A.C. 577; Balderson v. The Queen (1898), 28 S.C.R. 261; R. v. Fisher, [1903] A.C. 158; McLean v. Vancouver Harbour Commissioners, [1936] 3 W.W.R. 657; R. Venkata Rao v. Secretary of State for India, [1937] A.C. 248; Genois v. The King, [1937] Ex. C.R. 176; Lucas v. Lucas and Commissioner for India, [1943] 2 All E.R. 110; Rodwell v. Thomas, [1944] L.R. 1 K.B. 596; Samson v. R., [1957] S.C.R. 832; Riordan v. War Office, [1959] 1 W.L.R. 1046; Vautrin v. Ministre des Finances, [1969] C.S. 390; Chelliah Kodeeswaran v. Attorney General of Ceylon, [1970] A.C. 1111; Syndicat des fonctionnaires provinciaux du Québec v. Bérubé, [1971] C.S. 249; Procureur général de la province de Québec v. Tribunal du travail, [1978] C.A. 103; Zamulinski v. The Queen (1957), 10 D.L.R. (2d) 685; Peck v. The Queen, [1964] Ex. C.R. 966; Reilly v. The King, [1932] Ex. C.R. 14;
[Page 1060]
Terrell v. Secretary of State for the Colonies, [1953] 2 Q.B. 482; A.G. of New South Wales v. Perpetual Trustees C. Ltd., [1955] A.C. 457; Inland Revenue Commissioners v. Hambrook, [1956] 2 Q.B. 641, referred to.
APPEAL from a judgement of the Court of Appeal of Quebec[1], affirming a judgment of the Superior Court which refused to issue a writ of evocation from a judgment of the Provincial Court. Appeal dismissed.
Jacques Clément, Q.C., for the appellant.
André Joli-Coeur and Claude Verge, for the respondent Labrecque.
English version of the judgment of the Court delivered by
BEETZ J.—
I—Proceedings, facts and issue
With leave of this Court, the appeal is from a decision of the Court of Appeal of the Province of Quebec, affirming a judgment of the Superior Court which refused to issue a writ of evocation sought by the Attorney General from a judgment of the Provincial Court. This judgment, handed down by Raymond Beaudet J. in accordance with the procedure contained in Book Eight of the Code of Civil Procedure for the recovery of small claims, condemns the Attorney General to pay respondent Ernest Labrecque the sum of $168 with interest from the date of summons and costs, set at $10.
The facts are set forth as follows in the factum of the Attorney General, to which respondent’s factum refers:
[TRANSLATION] Respondent Mr. Ernest Labrecque worked with the Department of Revenue of the Government of Quebec from March 21 to June 19, 1974. During that period he had the status of a casual employee.
After his departure, on or about February 27, 1975, respondent caused to be served on the Attorney General, by the Clerk of the Provincial Court for the District of Quebec City, Access to Justice Division, a motion under
[Page 1061]
Book Eight of the Code of Civil Procedure of Quebec. This action set forth the following claim:
[Here, I am quoting from respondent Labrecque’s motion.]
[TRANSLATION] Plaintiff is asking respondent to make payment of the sum of $168.00 and costs within ten (10) days of service of this motion. The costs are $10.00.
The said sum is owed for the following reasons:
amount owed for four days’ vacation at $20.00/day;
three holidays at $20.00/day;
one day sick leave;
plus legal interest from March 1974.
Period of plaintiff’s employment (from March 21 to June 19, 1974).
Contract of casual employment with the Department of Revenue, 200 Dorchester South, Quebec City.
The Attorney General’s factum goes on:
[TRANSLATION] The motion was referred back to the Clerk’s Office after a representative of the Government of Quebec had ticked off two of the five boxes indicating, on a printed form attached to the motion, the five options open to a person sued under this procedure.
The following printed formula is found alongside one of the two boxes ticked off by the representative of the Government of Quebec: “I wish to contest the motion on its merits in court”. Underneath this printed sentence the following words were added by hand: “Three holidays, one sick leave”.
The second ticked box read: “I wish to ask for dismissal of the action”: the printed words “before another court” were struck out and, in the place provided for the purpose, the government’s representative set forth the reasons for his request for dismissal as follows: “Four days’ vacation inadmissible under Book Eight, C.C.P.”.
The motion was accompanied by an explanatory letter signed by the Director of the Central Claims Service.
The record of the Provincial Court does not disclose the nature of the representations made at the hearing. However, from what the Provincial Court judge wrote in his judgment, it appears that the parties made the following admission:
“It was admitted by the parties that plaintiff is entitled to the amount if he is subject to application of the aforementioned collective agreement”.
The Provincial Court judge also discussed a problem of jurisdiction raised by the parties:
[Page 1062]
“At the start of the hearing, mention was made of the question of the jurisdiction of the court, sitting for the recovery of small claims, pursuant to Book Eight of the Code of Civil Procedure”.
Beaudet J. dismissed the exception declining his jurisdiction and then rendered the judgment discussed above.
Did he have jurisdiction to render such a judgment?—That is the question.
In arriving at an answer it is important to note that art. 997 of the Code of Civil Procedure contains a privative clause which places cases regarding the recovery of small claims outside the Superior Court’s power of evocation. Article 980 of the Code further states that a judgment rendered in such cases is final and without appeal. It follows that while the Provincial Court cannot by an erroneous interpretation of the law arrogate to itself a jurisdiction which it does not possess, it may however err in the exercise of its jurisdiction and, though erroneous, its judgment will then be unassailable, provided that it does not base itself on a deliberate error which would be equivalent to a fraud on the law: South East Asia Bricks Sdn. Bhd. v. Non Metallic Mineral Products Manufacturing Employees Union[2] (at p. 323).
II—Preliminary difficulty: Did the Attorney General acquiesce in jurisdiction?
Bernier J.A., who was alone in expressing this opinion, concluded that the Attorney General had acquiesced in the jurisdiction of the Provincial Court as to that part of the claim relating to the three holidays and the day of sick leave, but repudiated jurisdiction as to the four days of vacation leave. In his view, the Attorney General could not split his position in this manner, and should have declined jurisdiction on the whole proceeding in limine litis. With respect, I cannot concur with this view. It is true that the summary form of the written pleadings for the recovery of small claims leaves the way open to ambiguity, especially when the parties strike out portions of the form instead of simply responding as required. However, I prefer to rely on the assessment made by the Provincial Court judge who, while noting the
[Page 1063]
ambiguity, treated the exception declining jurisdiction as a general exception made “at the start of the hearing”.
III—Judgments of the Provincial Court and the Superior Court and of the Court of Appeal
The primary legal basis on which the Provincial Court relied in allowing respondent’s action was the 1972-1975 collective agreement between the Government of Quebec and the Syndicat des fonctionnaires provinciaux du Québec [Quebec provincial civil servants’ union].
Referring, inter alia, to a decision of the Court of Appeal that will be discussed below and from which it cited lengthy extracts, Le Procureur général de la Province de Québec v. Tribunal du Travail et Syndicat des Fonctionnaires provinciaux du Québec Inc.[3], the Provincial Court held that casual employees like respondent form part of the bargaining unit described in the collective agreement and are subject to its application. In view of the admission of the parties, he therefore allowed respondent’s motion.
The Provincial Court also referred to the individual contract by which respondent became a casual employee of the government of Quebec, and to which the collective agreement was the complement: based on this twofold contractual foundation, respondent’s claim should be decided in accordance with the procedure set forth in art. 953 of the Code of Civil Procedure for the recovery of small claims, since in the Court’s opinion it was a claim having as its cause “a contract, quasi-contract, offence or quasi-offence”, as provided in that disposition.
Jacques J. of the Superior Court concurred in substance with the Provincial Court.
His judgment was prior to General Motors v. Brunet[4], but counsel nonetheless argued before him the principle that was approved in that case, namely that respondent’s claim, based exclusively on the collective agreement, constituted a grievance which ought to be decided by an arbitrator.
[Page 1064]
The Superior Court replied to this argument by reference to Maluorni v. Ville Mont-Royal[5], which held that compulsory arbitration does not extend to former employees. Respondent was no longer the employee of the government at the time he brought his motion to recover the small claim. Jacques J. concluded that the jurisdiction of the civil courts over respondent’s claim was not excluded by the fact that the latter could have presented it as a grievance before leaving his employment.
The Court of Appeal, whose decision was subsequent to General Motors v. Brunet (supra), made no ruling on the contractual nature of respondent’s claim; it held that the choice of the procedure prescribed for recovering small claims does not affect the jurisdiction of the Provincial Court.
Mayrand J.A., with whom Tremblay C.J.A. concurred, affirmed the reasons of the Superior Court which held that respondent’s claim would ordinarily constitute a grievance, but like the Superior Court he felt he was bound by Maluorni (supra).
Bernier J.A., with whom Tremblay C.J.A. also concurred, came to the same conclusions as Mayrand J.A. but for slightly different reasons: he did not subscribe to the view of Mayrand J.A. that respondent’s claim would ordinarily constitute a grievance subject to arbitration; in his view the matter turned solely on interpretation of the relevant legislation and was for the courts of law to decide.
IV—Grounds raised by the Attorney General
The Attorney General raised two main grounds against Provincial Court jurisdiction.
1. There was no contract between the provincial government and its civil servants, rather a legal relationship arising out of law. Based on this legal relationship, respondent’s claim is not a small claim within the meaning of art. 953 of the Code of Civil Procedure, as it does not have for its cause, as para. (b) of that provision requires, “a
[Page 1065]
contract, quasi-contract, offence or quasi-offence”. The procedure followed is tainted with absolute nullity and deprives the Provincial Court of any jurisdiction.
In the submission of the Attorney General, this is his fundamental ground. If the Court accepts his argument on this point there is no need to rule on his second ground.
2. If respondent is entitled to the benefits claimed, this can only be pursuant to the collective agreement on which the Provincial Court based its finding of entitlement. This agreement is not applicable to casual employees. However, if the agreement is applicable to them, respondent’s claim constitutes a grievance which must be decided by an arbitrator outside the courts of law, since the agreement is the only basis of this claim: General Motors v. Brunet (supra).
In this Court, the Attorney General stressed the alternative nature of this second ground, on which he appears to have placed more emphasis in the lower courts. However, he asked this Court to disapprove Maluorni (supra) if we conclude that respondent’s claim should ordinarily constitute a grievance.
Indeed, as I understand it, the second ground is not merely alternative: it is also conditional. Only if this Court concludes that the collective agreement is applicable to casual employees and that respondent’s claim constitutes a grievance is the Attorney General disputing the jurisdiction of the Provincial Court. He no longer disputes it if this condition is not fulfilled, subject to his first ground.
Counsel for the respondent are in partial agreement with the Attorney General on the second ground. Like him, and despite the contrary view taken by the Superior Court and the Court of Appeal, they maintain that the collective agreement is not applicable to respondent, whose claim accordingly cannot constitute a grievance. Only if the Court dismisses this argument do they cite Maluorni (supra) and ask us to approve it and apply it.
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I should say at once that in my view the first ground must be dismissed.
The second must therefore be considered.
Strictly speaking one might dispense with doing so, since both parties appear to admit that respondent’s claim does not constitute a grievance. Nonetheless it is preferable to deal with it, as this ground raises questions of law on which rulings were given in the lower courts and some of which may affect the application of General Motors v. Brunet (supra).
I will begin with the second ground.
V—Second ground
Employees of the government of Quebec are covered by the Civil Service Act, 1965 (Que.), c. 14, now c. F-3 of the Revised Statutes of Quebec, 1977, ss. 69 and 70 of which set forth a special system of collective bargaining:
69. The Syndicat des fonctionnaires provinciaux du Québec is recognized as the representative of all employees in the civil service who are employees within the meaning of the Labour Code as amended, except:
(a) teachers;
(b) employees who are members of each of the professions contemplated in chapters 247 to 249, 253 to 255 and 257 and 266 of the Revised Statutes, 1964, and persons admitted to the study of such professions;
(c) employees who are university graduates, economists, geographers, geologists, biologists, town-planners, auditors, psychologists, social workers, guidance counsellors and other professionals;
(d) employees who are peace officers, prison guards, game-wardens, transportation or autoroute inspectors and other persons performing duties of a peace officer.
70. Section 69 shall have the same effect as a certification by an investigation commissioner under the Labour Code for two separate groups comprising:
(a) functionaries who are employees;
(b) workmen who are employees.
The Labour Court established by the Labour Code shall decide all conflicts respecting the effective exclusion or inclusion of an employee or class of employees in either of such groups, and shall have the power to cancel the certification and grant another upon the conditions prescribed by the Labour Code. (With the amendments made by S.Q. 1969, c. 48, s. 41.)
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It will be seen that this is an actual legislative certification of a specific union, the Syndicat des fonctionnaires provinciaux du Québec, specifically recognized by law as the representative of all civil servants who are employees within the meaning of the Labour Code, R.S.Q. 1964, c. 141, now c. C-27 of the Revised Statutes of Quebec, 1977, apart from certain exceptions. Having been thus certified, the union can conclude with the government, on behalf only of the employees whom it represents, a collective agreement like that in question in the case at bar.
However, s. 3 of the Civil Service Act allows the Civil Service Commision to make casual employees of the government subject to special provisions:
3. Whenever the Commission decides that it is neither practicable nor in the public interest to apply this act to one or more positions or offices of a casual nature in the civil service, it may, with the approval of the Lieutenant-Governor in Council, withdraw them from the partial or total application of this act and determine, by regulation, the manner in which such positions or offices and the incumbents thereof shall be governed.
Within thirty days after the opening of each session, the Commission shall make an annual report to the Legislative Assembly indicating the positions or offices excluded, under this section, from the partial or total application of this act, the reasons therefor and the regulations prescribed and approved respecting such positions or offices.
Additionally, s. 16 empowers the Commission to make regulations for its internal administration and for the carrying out of the Act, with the approval of the Lieutenant‑Governor in Council.
By means of an Order in Council, the Civil Service Commission in fact exercised the powers conferred on it by ss. 3 and 16, removing casual employees from total application of the Civil Service Act and determining by regulation the manner in which such employment would be governed. The Order in Council and Regulation read as follows:
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Order in Council
Executive Council Chamber
Number 1714
Quebec, October 5, 1966
Present: The Lieutenant-Governor in Council.
CONCERNING the “Regulation concerning positions or offices of a casual nature and their incumbents”.
IT IS ORDERED, upon the recommendation of the Prime Minister:
THAT, in conformity to sections 3 and 16 of the Civil Service Act, the “Regulation concerning positions or offices of a casual nature and their incumbents”, such as decreed by the Civil Service Commission at its assembly of September 29, 1966, and of which a copy is annexed to the present Order in Council, be approved:
THAT the present regulation take effect from and after August 6, 1965.
True copy.
JACQUES PRÉMONT,
Clerk of the Executive
Council.
COMMISSION QUÉBEC CIVIL SERVICE
REGULATION CONCERNING POSITIONS OR OFFICES OF A CASUAL NATURE AND THEIR INCUMBENTS
WHEREAS in pursuance to the terms of the provisions of section 3 of the Civil Service Act, the Québec Civil Service Commission can, if it considers that it is not practical nor in the public interest to apply the aforesaid Act to one or several positions or offices of a casual nature in the Civil Service, withdraw them, with the approbation of the Lieutenant‑Governor in Council, by (sic) the total or partial application of this Act and determine by regulation the manner in which these positions or offices and their incumbents will be governed;
WHEREAS the Commission, after having studied the problem which the application of the aforesaid Act raises in regard to these positions or offices and their incumbents, comes to the conclusion that it is expedient to withdraw from the total application of this Act and consider that they must be governed by a particular rule the conditions of which form the subject of the regulation hereafter decreed.
CONSEQUENTLY, the Québec Civil Service Commission, under the authority of sections 3 and 16 of the Civil Service Act, withdraw from the total application of
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the aforesaid Act the positions or offices of a casual nature in the Civil Service and decree, with regard to these positions or offices and their incumbents the following reglementary provisions:
Title
Sec. 1. The present regulation is known and designated under the title of:
“Regulation concerning positions or offices of a casual nature and their encumbents”.
Interpretation
Sec. 2. In the present regulation, unless the (sic) text indicates a different meaning, the words:
A) “position or office of a casual nature” designates an office or position
(a) the duration of which is inferior to three (3) months for a casual worker and to four (4) months for a casual functionary or
(b) which must fill the purpose to execute a specific and casual work such as the issuance of registration certificates, the construction and repairing of a bridge, a road or another work etc…
B) “casual functionary” or “casual worker” designates the incumbents of a position or office of a casual nature.
Appointment
Sec. 3. The incumbent of a position or office of a casual nature is appointed by a written document from the head of the Department where his services are required, on which document is inscribed following his classification title “casual”.
Sec. 4. For the purposes of the classification, the qualifications, the compensation and the hours of work of the incumbent of a position or office of a casual nature, the head of the Department must determine them following the nature of the work to be done bearing in mind the conditions applicable in specific cases to the regular employees of the administrative unity to which such incumbent is assigned.
Coming into force
Sec. 5. The present regulation will come into force as soon as it is approved by the Lieutenant-Governor in Council and will take effect on the date he wishes to fix.
Assembly of September 29, 1966.
True copy.
HENRI DION
Secretary.
CAD/mb
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This regulation was in effect at the relevant times.
The Court of Appeal had occasion to interpret it with s. 3 of the Civil Service Act in Le Procureur général de la Province de Québec v. Tribunal du Travail et Syndicat des fonctionnaires provinciaux du Québec Inc. (supra).
In that case, the Syndicat des fonctionnaires provinciaux du Québec was attempting to obtain certification pursuant to the Labour Code by an investigation commissioner as the representative of casual workers employed by the government who were not covered by Civil Service Act. The investigation commissioner held that he did not have jurisdiction, but his decision was reversed on appeal by the Labour Court. The Superior Court refused to issue a writ of evocation, but its judgment was reversed by the Court of Appeal, which ordered the writ to be issued because the investigation commissioner had properly declined jurisdiction.
The Court of Appeal distinguished between removal from total application of the Act and total removal from application of the Act, and arrived at the surprising conclusion that the Regulation authorized by Order in Council No. 1714 is, despite its formal language which is in the same terms as the Act, a partial removal. The reasons of the Court of Appeal also include the following observations, at p. 12:
[TRANSLATION] In the circumstances, whether by virtue of the partial removal contained in the preamble or by virtue of the power which the Commission has to enact regulatory provisions governing its casual workers or functionaries, the latter remain subject to ss. 69 and 70 of the Civil Service Act, and are governed by these provisions where certification is concerned.
With respect, I am unable to agree with these reasons.
First, it seems to me to be impossible to hold that casual workers or functionaries of the government remain subject to ss. 69 and 70 of the Civil Service Act and governed by these provisions where certification is concerned. If that were the
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case, there would be no purpose in certification, since the union would already represent these casual workers or functionaries.
Then, if the Regulation in question is a partial removal from application of the Act, what specific provisions of the Act are affected by the removal?
Finally, what language must be used in order to ensure a total removal, since the language of the Act itself does not suffice?
On the contrary, I think the Regulation authorized by Order in Council No. 1714 had the effect, inter alia, of removing casual workers and functionaries from all provisions of the Civil Service Act, except obviously for ss. 3 and 16 themselves, which are the crux of this Regulation.
The Court of Appeal nonetheless arrived at the right conclusion in Le Procureur général de la Province de Québec v. Tribunal du Travail et le Syndicat des fonctionnaires provinciaux du Québec Inc. (supra), but for the following reason: one of the obvious aims and effects of the Regulation approved by Order in Council No. 1714 is precisely to prohibit representation of casual workers and functionaries by the Syndicat des fonctionnaires provinciaux du Québec, by removing these casual workers and functionaries from the application of ss. 69 and 70 of the Act, inter alia. Accordingly, the union could not circumvent this result by the general provisions of the Labour Code, and indirectly accomplish what the Civil Service Act, a more specific statute, allows the Civil Service Commission to prohibit.
In the case at bar, the Provincial Court and the Superior Court accepted the argument that the wording of the collective agreement signed between the government and the Syndicat des fonctionnaires provinciaux du Québec does not exclude casual functionaries, although it excludes other functionaries, and that the previous collective agreement excluded them expressly. That is indeed the case, but the collective agreement cannot validly contradict a regulation of a public nature, and it
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must be applied in a manner compatible with that regulation.
I accordingly conclude, with due respect for the contrary view, that the collective agreement is in no way applicable to casual employees such as respondent. (It should however be said in all fairness that the Provincial Court, the Superior Court and perhaps even the Court of Appeal may have felt themselves bound by this earlier judgment of the Court of Appeal, although the latter said not a word about it in the case at bar, any more than did the Superior Court.)
As the collective agreement is not applicable to casual employees, it follows that respondent’s claim cannot constitute a grievance based on that agreement and within the jurisdiction of an arbitrator.
However, this proposition needs further elaboration.
The Attorney General cited s. 88 of the Labour Code, according to which every grievance must be submitted to arbitration, and the definition of the word “grievance” in s. 1(g) of the said Code:
(g) “grievance”—any disagreement respecting the interpretation or application of a collective agreement.
The benefits claimed by respondent are dealt with in ss. 33, 34 and 36 of the collective agreement.
As respondent’s right to the application of these provisions to him was in dispute, there would appear to have been a disagreement as to the application of the collective agreement.
The Attorney General also based his argument on General Motors v. Brunet (supra) and maintained that, according to that judgment, it is enough if an employee cites the clause of a collective agreement for his claim to constitute an arbitrable grievance.
In my opinion, that is not the effect of General Motors v. Brunet (supra), any more than it is the scope of the statutory definition of a grievance. Otherwise, an arbitrator would never be deprived of jurisdiction, even in the case where a party
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relied on a collective agreement which did not apply to him, as in the case at bar.
It is important to distinguish between the applicability of a collective agreement and its application, although both expressions are frequently used interchangeably.
The question of applicability is preliminary and goes to the initial jurisdiction of the arbitrator. That question asks whether in a given situation the collective agreement is capable of being applied, because it attains the objective sought. This question is not itself arbitrable; if it is before the arbitrator, he cannot err in this regard without usurping a jurisdiction which he does not have or refusing to exercise one which he does have.
The question of the application of a collective agreement concerns its implementation, the putting of it into practice. This is a subsequent question which arises only when the preceding one has been resolved in the affirmative and about which the arbitrator can err without his jurisdiction being necessarily affected.
In General Motors v. Brunet (supra), Pigeon J., speaking for the whole Court at p. 551, rejected the distinction between a dispute relating to the application of a collective agreement and a dispute relating to its infringement. However, he in no way rejected the distinction between the applicability of an agreement and its application. Indeed, this appears to be what he had in mind when he wrote on the same page:
There can be no question of violation of the collective agreement if it has no application.
The phrase “has no application” is clearly synonymous here with “inapplicable”.
A disagreement as to the applicability of a collective agreement therefore does not constitute a grievance but a preliminary issue.
As the collective agreement is not applicable to respondent, and the latter’s claim cannot constitute a grievance, General Motors v. Brunet (supra) is also not applicable, and there is no need to decide whether the Court of Appeal and the
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Superior Court were correct in continuing to follow Maluorni (supra).
For the same reason, there is also no need to consider whether respondent’s claim was not simply directed at recovery of unpaid salary; in that case, there would be nothing to prevent him from bringing it in the courts of law rather than before an arbitrator of a grievance: General Motors v. Brunet (supra), at pp. 551 and 552; Re Grottoli v. Lock and Sons Ltd.[6]
As respondent’s claim cannot constitute a grievance, it can only be heard by the courts of law, if only to dismiss it if it is ill-founded. In view of the amount, it must necessarily be heard exclusively by the Provincial Court, acting in accordance with ordinary procedure, which the Attorney General does not dispute, or in accordance with the procedure prescribed for the recovery of small claims, which the Attorney General disputes in his first ground.
However, the Provincial Court erred in relying on the collective agreement as its basis for upholding respondent’s claim, and it may even have made a twofold error.
Its first error was in deciding that the collective agreement applied to casual employees such as respondent.
Its second error, subject to possible exceptions dealt with in Maluorni (supra) and Re Grottoli (supra), and without prejudice to the first ground, was in having held that, if the collective agreement was applicable to casual employees, it had, to the exclusion of an arbitrator, jurisdiction to decide respondent’s claim.
Do these errors affect the jurisdiction of the Provincial Court? I think not.
If it had been committed by an arbitrator, the first error would have been fatal as the arbitrator would by it have arrogated an initial jurisdiction which he did not have. That is not the case with the Provincial Court, which began the proceeding
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by having jurisdiction over respondent’s claim under the ordinary procedure or the procedure prescribed for the recovery of small claims.
Moreover, it is the latter procedure which the Provincial Court should prima facie follow, since in his written pleading respondent cited “a contract of casual employment with the Department of Revenue”. (It should further be noted that in that pleading respondent made no reference to the collective agreement. It does not appear to have been raised until the hearing and in the pleadings before the Provincial Court.)
By its first error, therefore, the Provincial Court did not usurp the initial jurisdiction of another forum. It was exercising its own jurisdiction.
I also do not think it lost jurisdiction along the way.
It is true that by associating respondent’s individual contract with the provisions of the collective agreement, the Provincial Court erroneously made applicable to respondent the provisions of an agreement which were not applicable, because they are prohibited from being so by the Civil Service Act and the Regulation contained in Order in Council No. 1714. The Provincial Court erred by misinterpreting this Act and Regulation, but it then erred on the merits of respondent’s claim, irrespective of its power to decide it. In other words, it erred on the substance of the case.
I concur on this point with what was said by Bernier J.A.: these matters
[TRANSLATION] …concern… only the merits of the case… and the judgment on the merits of the Provincial Court, Small Claims Division, is not subject to appeal (Art. 980 C.C.P.) or to evocation on the ground that the judgment was erroneous (Art. 997 C.C.P.)…
…
The question is solely… as to the interpretation of the Civil Service Act (S.Q. 1965, c. 14) and the Regulation enacted thereunder, approved on October 5, 1966 by Order in Council No. 1714. The interpretation of that legislation was not assigned to any court established under the Labour Code; it is a matter for the ordinary courts, the Superior Court and the Provincial Court in the exercise of their respective jurisdictions.
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Indeed, the Attorney General seems to me to concede this point when, on page six of his factum, he refers to “the question of wh