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HomeMy WebLinkAbout1991-0237.Parry.91-10-16 ONTA RIO EMPL 0 YES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WES'F, SUITE 2~00, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/T~:L~-PHONE: (,~6~ 326-?358 180, RUE DUNDAS OUEST, J]{JREAU 2~00, TORONTO (ONTARtO~,, MSG rZ8 FACSI/',41&E/TELECOPJE : (4 ?6) 326-~396 January 2, 1992 MEMORANDUM RE: 237/91 OPSEU (Parry) and The Crown in Right of Ontario (Ministry of Financial Institution) Please be advised that the above-noted decision was released by the Board on October 16, 1991. Attached is a copy of a Notice of Application for Judicial Review filed by Alick Ryder. Joan Shirlow Registrar JS/dbg Encl. RYDER, WHITAKER, WRIGHT & CHAPMAN Barristers & Solicitors · 30 sr. Patrick Street, Suite 600 M5T 3A3 Tel: {4f6} 340-9070 Fax: [4f6) 340-9250 · "~' "-~" "~ -~. ~,'.5~ L . ~.~ ..~. ~.~.~ ~" December 17, 1991 Dig Icj Grievance Settlement Board c,'; 3:.''', .'~...~,'-:'~,_..,,- '.'---- ~ 180 Dundas Strest West GFi;'2.',/ANCE S~T'FLE~.',~NT Suite 2100 ~o4,~', ~) Toronto, Ontario M5G 1Z8 Attention: Ms. Joan Shirlow, Registrar Dear Ms. Shirlow: ~ Re: OPSEU (Parry) and the Ministry of Financial I~on8 Judicial Review Enclosed is a Notice of Application for Judicial Review which is 15eing sewed upon you pursuant to the Rules of Civil Procedure. Yours very truly, RYDER, WHITAKER, WRIGHT & CHAPMAN AR:lo enclosure ' '~ COURT F~LE NO. .~ ONTARIO COURT OF JUSTICE .... ~- (GENERAL DIVISION) "'.- ~""' DMsional Court BETWEEN: THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (HANS PARRY) Applicant -and- THE ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD and THE CROWN IN RIGHT OF ,ONTARIO as presented by THE MINISTRY OF FINANCIAL INSTITUTIONS Respondents NOTICE OF APPLICATION FOR JUDICIAL REVIEW TO THE RESPONDENT A LEGAL PROCEEDING HAS BEEN COMMENCED by the applicant. The claim made by the applicant appears on the following pages. THiS APPUCATION for judicial review will come on for a hearing before the Divisional 'Court on a date to be fixed by the registrar at the place of hearing requested by the applicant. The applicant requests that this application be heard at Toronto. IF YOU WiSH TO OPPOSE THIS APPUCATION, you or an Ontario lawyer acting for you must forthwith prepare a notice of appearance in Form 38C prescribed by the Rules of Civil Procedure, serve it on the applicant's lawyer or, where the app/icant does not have a lawyer, serve it on the applicant, and file it, with proof of seal/ice, in the office of the Divisional Court, and you or your lawyer must appear at the headng. IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER DOCUMENTARY EVIDENCE TO THE COURT OR TO EXAMINE OR CROSS-EXAMINE WITNESSES ON THE APPMCATION, you or your lawyer must, in addition to serving your notice of appearance, serve a copy of the evidence on the applicant's lawyer or, where the applicant does not have a lawyer, serve it on the applicant and file it, with proof of service, in the office of the DMsional Court w~in thirty days after service on you of the applicant's application record, or not later than 2 p.m. In the day before the hearing, whichever is earlier. IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. If you wish to defend this proceeding but are unable to pay legal fees, legal aid may be available to you by contacting a local Legal Nd office. Divisional Court Osgoode Hall 130 Queen Street West Toronto, Ontario TO: HICKS, MORLEY, HAMILTON, STEWART, STORiE 30th Floor Toronto-Dominion Bank Tower Box 371 Toronto-Dominion Centre Toronto, Ontario M5K 1K8 MR. ROBERT LITTLE Counsel (416) 362-1011 Solicitors for the Respondent, The Crown in Right of Ontario (Ministry of Financial Institutions) AND TO: ONTARIO CROWN EMPLOYEES GRIEVANCE SE13'LEMENT BOARD 180 Dundas Street West Suite 2100 Toronto, Ontario M5G 1Z8 MS. JOAN SHIRLOW Registrar (4 6) 32 - 388 t , APPUCATION 1, The applicant makes application for: An Order quashing and setlJng aside the decision of The Crown 'Employees Grievance Settlement Board (the Board) dated the 16th day of October, 1991, wherein the Board granted the grievances filed by the respondent Ministry of Financial Institutions. 2. The grounds of the application are: a. the Board based its decision on a patentty unreaSonable interpretation of s.8 of the Publlo Service Act; b. The Board erred in law by determining that the meaning and scope of the appointment power to the unclassified service in s.8 of the Public Service Act is to be determined soley by regulations passed under the Aot, c. the Board erred in law by? determining that the Civil Service Commission can. by making regulations under the Public ~ervice Act, expand the appointment power given to Ministers by s,8 of the AM. d. the Board erred in law by deparl~ng from the estnhtished jurisprudence of the Board respecting its interpretation of s,8 of the Public Service ACt, when it cannot be said that the junsprudence was manifestiy incorrect; e. such further and other grounds as counsel may advise and this Honourable Court, 3. The following documentary evidence will be used at the hearing of the application. a. the Record of the Proceedings before the Ontario Public service Grievance Board; b. the Application Record; and c. such further and other material as counsel may advise and this Honourable Court perm[ Date of Issue: ~:c, ~ c~l RYDER, WHITAKER, WRIGHT & CHAPMAN 30 St, Patrick Street ,Suite 800 Toronto, Ortho M5T 3A3 AIIck Ryder, Q.C. Pamela A. Chapman (416) 340-9070 Counsel for the Applicant ONTARIO EMPLOYES DE LA COURONNE CROWN EMPL 0 YEES DE L 'ON TA RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 237/91 ZN T~ ~TTE~ OF ~ ~[T~TZON Under C~ ~P~YEE8 COL~CT/~ B~G~ZNING ~CT Before THE GRIEV~CE SETT~~ BO~ ~ OPSEU (Parry) Grievor - The Crown in Right of Ontario (Ministry of Financial Institutions) B~ployer BEFORE: W. Low Vice-Chairperson N. Cartiere Member F. Collict Member FORT HR P. Chapman GRZEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors F0R TH~. R. Little F~iPLOY~ Counsel HickS, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING August 9, 1991 The Grievor, Hans Parry, was appointed by the Mini-~ter to the public service originally for a fixed contract running from April 24, 1989, to October 25, 1989, and for a series of subsequent fixed term contracts. He was appointed to the unclassified service. When the last of the contracts expired on March 31, 1991, no renewal of the contract was proffered, and Mr. Parry grieved that he was dismissed without just cause. It is the contention of the employer that this ~:rievance must be dismissed by reason of sections 8 and 9 of the Publi~ Service Act which provide as follows: "8. (1) A minister or .any public servant who is designated in writing for the purpose by him may appoint for a period of not more than one year on the first appointment and for any period on any .subsequent appointment a person to a position in the unclassified service in any Ministry over which he presides. (2) Any' appointment made by a designee under subsection (1) shall be deemed to have been made by his minister. R.S.O. 1980, c.. 418, s. 8. 9. A person who is appointed to a position in the public service for a specified period ceases to be a public servant at the expiration of tha~: period. R.$.O. 1980, c. 418, s. 9." It is the position of the employer that as Mr. Parry was appointed pursuant to section 8 to the public service for a specified period, at the end of the period he ceases to be a public servant, and there are accordingly no rights to grieve. 2 It is the contention of the union that the Grievor was not properly appointed to the unclassified service, and that accordingly the provisions of section 9 of the Pubk%c Service Act do not apply. If the provisions of section 9 of the Public Seryice Ac__~t do not apply, there would remain a question of what remedies are available and appropriate to the circumstances, provided that no case is made out for just cause for dismissal. It is agreed, however, that this grievance could conceivably be decided on this preliminary point, namely whether or not Mr. Parry was properly appointed to the unclassified service, and if we so find, the parties are agreed that that would put an end to the grievance in that it must be dismissed. The facts relevant to the hiring of the Grievor are not in issue. Mr. Parry was first appointed on April 24, 1989, to the unclassified service. The first contract expired October 25, 1989, but a number of subsequent fixed term contracts were made with the last one ending March 31, 1991. The position was that of Assistant Registration Officer at the Ontario Securities commission, which position arose because of an increased workload. It was the intention of the employer at the time that Mr. Parry was first hired that the position would be filled by an unclassified person until .the position could be classified. The position in fact became classified in February of 1991. As the matter stands at present, the position has not cleared the surplus list, nor has it been posted. As appears from the contracts which were marked as Exhibit 2 in this proceeding, Mr. Parry was assigned to Group 1 (presumably for .purposes of a designation under section 6 of Regulation 881 under the PL~blic Service ~qt, which divides the unclassified service into several groups). At the date that Mr. Parry was appointed to the unclassified service, section 6 of Regulation 881/89 under the ~h~blic Servic~ Act provided for four groups of employees which constituted the unclassified service. They 'are as follows: "6. (1) The unclassified service consists of employees who are employed under individual contracts in which the terms of employment are set out and is divided into, (a) Group 1, consisting of employees who are employed, (i) on a project of a non-recurring 'kind, (ii) in a professional or other special capacity, (iii) on a temporary work assignment arranged by the commi~sion in accordance with its program for providing temporary help, (iv) for fewer than fourteen hours per week or fewer than nine full days in four consecutive weeks or on an irregular or on- call basis, (v) during their regular school, college or university vacation period or under a co-operative educational training program; (b) Group 2, consisting of employees who are employed on a project of a recurring kind, 4 (i) for fewer than twelve consecutive months and for fewer than, (A) 36 1/4 hours per week where the position, if filled by a civil servant, would be classified as a position requiring 36 1/4 hours of work per week, (B) 40 hours per week where the position, if filled by a civil servant, would be classified as a position requiring 40 hours of work per week, (ii) for fewer .than eight consecutive weeks per year where the contract of the employee provides that the employee is to work either 36 1/4 hours per week or 40 hours per week, (c) Group 3 consisting of employees appointed on a seasonal basis for a period of at least eight consecutive weeks but less than twelve consecutive months to an annually recurring position where the contract provides that the employee is to work either 36 1/4 hours per week or 40 hours per week; (d) Group 4, consisting of employees, (i) who are appointed pursuant to s. 8 of the Act, whether or not the duties performed by them are, or are similar to, duties performed by civil servants, and (ii) who are not employees that belong to Group 1, 2 or 3. O. Reg. 24/86, s. 3(1), a~; O. Reg. 129/89, s. 1." Group 4, created by section 6(1)(d) of the Regulation was new, having come into effect March 13, 1989. The form of contract pursuant to which Mr. Parry was appointed did not provide for a Group 4 designation, however, and in each case Mr. Parry was shown 5 as having been assigned to Group 1. The provisions of section 6(1)(d) defining Group 4 of the unclassified service is unambiguous in that it appear~ to c=tch all employees who do ~ot belong to Groups l, 2 or 3, and includes employees whether or not their duties are similar to those performed by civil servants (i.e., classified employees) ]provided that the appointment was pursuant to section 8 of the Act which requires that the first appointment be for no more than a one year It is the argument of the union that section 6(1)(d) of the Regulation is inconsistent with Section 8 of the Act, and is therefore ultra vires and not enforceable. In support of this contention, the union relies on the ~e¢i~ion in ~ere~for~, a decision of Arbitrator Mitchnick (1429/86), judicially reviewed and affirmed by the Divisional Court on' December 6, 19S8, and its progeny, Miller, (1972/87) and Bress~tt~ (1682/87). It is urged before this ~oard that Ber~sfoKd stoo~ for the proposition that an appointment to the unclassified service pursuant to section 8 of the Public Service Act imported a co~notation of temporariness in the position, and that accordingly section $ of the ~blic: Servic~ Ac__~t must be read not only in conjunction with section 6 of the Regulation which defines it, but further with the gloss that there must be an element of temporariness to any section 8 appointment in order to be properly made. 6 In our view, the decision in De~esford does not bear out this contention. Prior to the Bgresfor~ decision, the jurisprudence surrounding grievances of unjust dismissal launchea by employees appointed pursuant to section 8 of the Public Se~v~g9 Act, for example, Simpson (694/85) and Johnson and Szpakowski (72/76), focused upon the method of appointment of the employee, and held, in' essence, that if a person's employment was created under section 8 of the Public Service Act, that person is not a civil servant irrespective of what job is being performed or position held. It was ~eld that where the appointment to the public service was pursuant to section 8 of the Act, the employee was a member of the public service but not a member of the civil service, and his status as a public servant terminated at' the- expiration of the term of employment for which the Minister made the appointment. The Bg~esford decision was a significant departure from the prior jurisprudence in that it focused not on the method of appointment, but on the type of work and nature of the position held, and we take the Beresfgrd case to stand for the proposition that section 8 of the ~ublic ~ervic~ Act must be read in conjunction with a statutory.definition of the term #unclassified service", which is to be found at section 6 of the Regulation. At the time that the Beresford case was decided, section 6 of the Regulation stipulated that the unclassified service 7 consisted of three groups, namely Groups 1, 2 .and 3, which, groups have been continued into the present RegUlation. There was at that time no Group 4 as is found in the Regulation at the date that Mr. Parry was appointed pursuant to section 8 of the Act. Beresford decided that the power of the Minister to appoint pursuant' to section 8 of the unolassified service was limited to appointments to the positions described in Groups 1, 2 or 3 of section 6 of the Regulation, and if the employee was performing a job or holding a positio,n which did not fall. within one of those groups, then the appointment to the unclassified service was not authorized by section $ of the Act, and was therefore an improper appointment. It is now urged on behalf of the Grievor that this Board ought to ignore Group 4 or section 6(1)(d) of the Regulation for purposes of determining whether or not an appointment to the unclassified service was properly made pursuant to section $ of the Public Service Ack, and it is urged upon us that we ought to import into the language of section 8 an underlying requisite condition of temDorariness in the'nature of the position in order to find that an appointment had properly been made to the unclassified service under that section. When the types of positions set out in Groups i through 3 of section 6 of the Regulation are examined, one sees that temporariness is not a universal earmark of the positions or types of work stipulated. For example, Group l(ii) consists of employees employed in a professional or other special capacity.' Group 3 consists of seasonal workers who work at least 8 consecutive weeks but less than 12 consecutive months in an annually recurring position. Group 1(iv) consists of employees who are employed for less than 14 hours per week or fewer than 9 fulI- days in 4 consecutive weeks or are on an irregular or on-call basis. It is apparent from the language of section 6 of the Regulation that while some of the types of positions which comprised the J unclassified service prior to 1989 were positions of a temporary nature, there were others which were prima facie permanent. There is nothing in the language of section 8 of the Act which itself imports a connotation of temporariness and on a plain reading of the section, it is quite conceivable that beyond the first appointment which must be for a period of not more than one year, all subsequent appointments could be for lengthy periods of time. It is also conceivable that such appointments coul~ be renewed indefinitely. In my view, to import into the language of section 8 of the Act a connotation of temporariness, whether read together with section 6 of the Regulation or not, is to strain the language of the statute beyond what it can bear,'and I would not so construe the section even in the absence of the addition of the fourth group of unclassified employees found at section 6(1)(d) of the Regulation. 9 It seems to be common ground that an appointment made by the Minister under section 8 of the Statute can only be properly made provided that it is also in compliance with section'6 of the Regulation since nowhere else is there a definition of "unclassified service". The issue then is whether section of the Regulation is contradictory to or inconsistent with section 8 of the Statute. As we construe the provisions of section 8 of the Statute, there is no circumscription of the power to appoint to the unclassified service except that:: (a) the first appointment must be for a period of less than a year; and (b) the "unclassified service" is defined by the Regulation. As the regulation stood at the date of Mr. Party's appointment, there existed a fourth group within the unclassified service which consists of appointees pursuant to section 8 of the Act whether or not their duties are similar to those performed by civil servants and who are not employees belonging to Groups 1, 2 or 3 of the Regulation. In effect, section 6 of the Regulation creates a full circle if read together with section 8 of the Statute, the net effect of which is to permit the Minister to appoint any employee to the unclassified service'provided ~he first contract is for less than one year. In short, the Minister may appoint a person to the unclassified service and a person in.the unclassified service is defined as anyone appointed by the Minister 10 under section 8 to the unclassified service. While the draftsmanship is not elegant, we are. unable to escape the conclusion that the intent of the legislation is to expand the Minlster's powers of appointment under section 8 of the Statute. We note in passing that the Collective Agreement now provides at Article 3.15.1 that: "Effective April l, 1991, where the same work has been performed by an employee in the Unclassified Service for a period of at least two (2) consecutive years, and where the ministry has determined, that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Classified Service to perform that work, and shall post a vacancy in accordance with Article 4 (Posting and Filling of Vacancies or New Positions)." Therefore, while the power of the Minister to appoint to the unclassified service under section 8 appears to have been expanded by the addition of a fourth group in section 6 of the Regulation, there is a countervailing obligation on the part of the employer contained in the Collective Agreement as set out above. We are of the view, therefore, that the Minister did have the power under section 8 to appoint Mr. Parry to the unclassified service at the date that he was first appointed, and that that being the case, Mr. Parry ceased to be a public servant pursuant to the provisions of section 9 of the Act upon the expiry of his last contract. It was urged upon this Board that, because Mr. Parry had been allocated to Group i of the unclassified service on all the contracts pursuant to which he was appointed, that the employer may not rely on the provisions of section 6{1)(d) of the Regulation 11 creating fourth class in asserting that Mr. Parry was properly appointed to the unclassified service. We are of the view '=hat the employer's allocation to a Group within the unclassified service is not determinative of the matter one way or the other. It is for this Board to look to the substance of the facts rather than to the nomenclature applied thereto, but more importantly, we mumt consider whether there 'has been any detrimental reliance in detrmining whether or not to apply an estoppel, and in the circumstances, there is no evidence of any reliance. In our view, there is no inconsistency between the provisions of section 8 of the Statute and section 6 of the Regulation under the Statute, and therefore we are not able to accede to the argument of tlhe union that section 6(1)(d) of the Regulation is ultra v%res and of no effect. We therefore dismiss the .grievance. DATED this ~ I6th day of , 1991. "! Dissent" (dissent attached) NORMAN CARRIERE FRED CO LLI CT:(=~ " DISSENT I have read the draft award and cannot agree with the decision and therefore dissent for the following reasons: Whether the grievor was properly appointed to the unclassified service depends only on whether the position at the time of the appointment was considered a temp6rary position with a duration of less than one year. Section 6 of the Act sets out how full time positions (classified) are to be filled. Section 6(1) states "When a vacancy exists in the classified service, the deputy minister of the ministry in which the vacancy e×ists should nominate in writing from the list of eligibles .of the Commission a person to fill the vacancy. (Emphasis added). Article 4 of the agreement sets out the job posting procedures to fill vacancies or ne__w Dositions. The employer agreed at the hearing that the position which the grievor was initially appointed to on April 24, 1989 was that of Assistant Registration Officer at the Ontario Securities Commission. This vacancy arose because of an increased workload and was intended to be a full time vacancy in the position of Assistant Registration Officer right from the beginning. It was clear from the employer's own evidence that this position was not limited and that the initial contract to the grievor was only 2' until the position was classified. Section-8(1) states: "A minister or any public servant who is designated in writing for the purpose by him may appoint for a period of not more than one year on the first appointment and for any period on any subsequent appointment a person to a position in the unclassified service in any Ministry over which he presides." Can the employer use section 8 of~the Act to get away from his obligations under section 6 (1) of;the Act and Article 4 of the agreement, when a permanent vacancy in classified service becomes available? This matter was initially addressed, in the Beresford case' (1429/86) where the Board in that case looked at whether there is a difference between classified and unclassified positions.. At page 14 the Board states: The section in fact curiously worded, to the extent that it does raise the question why the Legislature would limit the term of the initial appointment to one year, but then go on to permit any eMtension of that term on an indefinite basis. That wording would, therefore, tend to support Mr. Ryder's argument that, in order to fall within the contemplation of the Legislature as to what constitutes a "proper" appointment on a limited-term basis, there must be somethinq about the job in its initial conceDtion which distinguishes it from the normal "permanent" position in the classified service (emphasis added) The Board then looked at section 6 of the Regulation and stated at page 15: Those 3 "Groups" set out in the regulation, o~ the other hand, cover a very wide range of .... situations, and obviously create a broad degree of discretion in a minister when considering a 'fixed-term appointment to unclassified servicer rather than an open- 3 ended aD~ointment to the classified. (emphasis added) and further on page 16:. This is one of those cases. The position to which the grievor was appointed clearly was not "seasonal", had no different hours or other conditions of employment than the similar positions to which persons had been 4 appointed to the classified service, a~d all of the evidence we have as to the temporal nature of the position points to the contrary of it being of a "non-recurring" or "temDorary" kind of position. (emphasis added) In the present case as stated earlier the employer admits that the position was initially determined to be a regular classified position. The C. Milley case (1972/87) followed Beresford and also looked at the difference between classified and unclassified employees and stated at page 5: In.simplified terms, for the purposes material here, the "classified" 'staff are the regular or "permanent" employees of the government, and the "unclassified" staff are the employees hired on fixed-term contracts. The Board in the Bressette et al case (1682/87) dealt with the same issues and reviewed both the Beresford and Hicks (2563/87) and stated at page 26: For all of these reasons I conclude with all due respect that the panel in Hicks wrongly declined to apply Beresford to the facts 5 before it. In my opinion Beresford is correct and ought to have been applied in Hicks, and properly applies to the appointment of the grievors in our case - their situation being the same as those in Beresford and Hicks. .In a more recent case, Canete (2192/90), the Board again dealt with the same matter. In the Canete case the union argued that the "position was a continuing Dosition and that she ought to have been placed in the classified service with the duties she performed being posted. That when it became known to the employer that the work performed by the grievor was of a continuing nature it had an obligation to post the position and place it within classified service." The employee started to work in Aprii 1989 which is after the amendments to Section 6 of the Regulations. The grievor started in the unclassified service as clerk on a contract commencing on July 10, 1989. The employer conceded in'that case that section 6 had not been complied with although section 6 had been amended. The Beresford, Milley, Bressette and Canete cases all stand for the proposition that any appointments to unclassified services must be for temporary positions only. This position was also confirmed in the Wagner case (351/89) at page 13. 6 This "Project" was continuous, and clearly the limitation of "for fewer than twelve consecutive months" has not been met. The grievor worked for almost two years. The fact that none of her contracts was for more than twelve months does not change the fact that she was employed for mo~e than twelve consecutive months. The Employer cannot bring itself within the less-than-twelve-month limitation merely by givin~ a ~eries of short contracts (emphasis added). Following the Wagner decision, a Board hearing a union grievance (cases 1480/89, 1481/89, ~482/89) also dealt with the interpretation of sections 6, 7 and 8 of the Act. The union's position is found at page 8 and states: Union counsel argued that this Board, in its interpretation of sections 6, 7 and 8 of the Public Service Act, has defined the classified public service as including all of the ongoing permanent positions of the public service, while the unclassified public service is for temporary positions, where for example, a work bubble exists and additional staff are engaged. ? Very simply, in counsel's submission, if there is an ongoing position it is a classified position. If a vacancy occurs, it must be filled by a posting (emphasis added) The initial appointment to one of the unclassified position argued in this case was made on March 20, 1989, which is after the amendment to Section 6 of the Regulation came into force. After reviewing the evidence in this case the Board found that none of the positions fell within Regulation 881 of the Public Service Act. The reason for their finding was only that all three positions are ongoing positions within the Ministry and not that they did not fit within Group l, 2, 3 or 4 of the Regulation. The Board stated at page 20: In our view, just because a a position is described, for example, as a "project of a non-recurring kind" does not make it so, especially where all the evidence aoes to its continuing nature (emphasis added). The Board then referred to the Wagner case and found: that the three positions in issue are.onGoing ~ositions within the Ministry. Having made this finding, we now turn to the matter of remedy (emphasis added). 8 In our present case the employer's own evidence that the position which the grievor was appointed to on april 24 1989 was an ongoing position created by increased workload. This was clearly a position of more than 12 consecutive months from the beginning and was therefore improperly filled by unclassified service. I also disagree with the interpretation of Group 4 of the Regulation in this case which states that "Group 4 of the unclassified service is unambiguous in that it appears to catch all employees who do not belong to GrOup 1, 2 or 3 and includes employees whether or not their duties'are similar to those performed by civil servants (i.e classified employees) pr¢.vided that the appointment was permanent to section 8 of the Act which requires' that the first appointment be for no more than one year term." If that is really what the government intended to mean by adding Group 4, I would ask why they kept Groups 1, 2 or 3 in the Regulation. If the new Group 4 'catches all employees, Group 1, or 3 becomes meaningless and are there only to fill space and I would doubt that the authors of the regulations are interested in just filling space. Respectfully submitted, Norm Carriere