HomeMy WebLinkAbout1991-0879.Justus.92-03-16 ON TARIO ' EMPL 0¥~.$ DE LA COLiRONNE
GROWN EMPLOYEES OE L'ONTARIO '
GRIEVANCE C,OMMiS$1ON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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879/91
IH THE MATTER OF AN ARBITRATION
UndeF
TKE CROWN EKP.LOYEEH COLLECTIVE BARt.]fINING ~CT
Before
THE GRIEVMqCE SETTLEI~HT BOARD' ,
BETWEEN
OPSEU (Justus)
Gri ever
The Crown in Right of Ontario
(Ministry of Revenue)
Employer ..
BiFORR: P. Knopf .Vice-Chairperson
I. Thomson Member
-. D. Clark Member
FOR THE A. Ryder
GR~EVOR Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
· FOR THE A. Rae
EMPLOYER Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
-. HEARING October 15, 199I
., DECISION
- This is a grievance involving the termination of
employment of a person who worked under a continuous set of
limited term contractual appointments from June of 1987 to
April of 1991, The basic positios of the Union is that the
grievor occupied a position that should have been· filled by a
classified ap9ointment and so the grievor was not
"unclassified" staff as a matter of law and therefore should
be able to grieve her dismissal. The Employer takes the
position· that the grievor was properly appointed to the ~.
unclassified service and that there is therefore no remedy
available to her as a result of the termination of the
contract.
There is very little factual dispute in this case.
The grievor worked in the Guaranteed Income and Tax Credit
Branch as a Review Officer. ' Initially, she worked with a
number of other Review officers, approximately 15 of whom
worked, like her, On limited term contractual appointments.
After approximately one year, only four contractual. Review.
Officers remained. By the time of her last contract, she was
the only contractually appointed Review Officer on the staff.
Over the years, she was told on occasion that her contracts
~wouid not be renewed and then was gratified to find them
renewed in spite of these warnings. BuG finally, the last
contract was not. renewed. While the grievor was not .aware of
it at the time, the Employer's evidence makes·it clear, that·
throughout her employment history she was working in a
"backfill situation" in that she was assigned to do the
duties of other classified ·employees at·the Branch who were
on temporary work assignments or secondments in other areas.
However, the employer admits that until April of 1991, the
grievor was employed "to meet the Ministry's ongoing staffing
requirements" in this backfill situation.
Ail the contracts the griever signed indicated that they were
"Group 2" service contracts.
Two competitions.were run for permanent positions
of Review Officer while the griever was On staff. She'was
allowed to ~pply for both. .The evidence discloses that she
came close on both occasions to securing the permanent jobs,
but was not successful. 'She explained that after much.
thought and careful consideration she elected not to grieve
the results of the competition although it i.s clear that she
felt She was dealt with unfairly. But.those competitions are
not the .subject of enquiry in this arbitration, nor would she
have the right to grieve as an unclgssified employee.
The resolution of this case involves the
interpretation and application of both the Collective
Agreement and the Publ'ic Service Act and its regulations.
The relevant provisions are as follows.
Article 3.15.1 states:
Effective April 1', 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 Miaistry 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).
From the Public Service Act,' the relevant provisions are:
6.-(1) When a vacancy exists in the classified
service, the deputy minister of the ministry in
which the vacancy exists shall nominate in writing
from the list of eligibles.of the Commission a
person to fill the vacancy.
(2) The Commission shall appoint the person
nominated under subsection (1) to a position on the
probationary staff of the classified service for
not more than one year at a time.
-,(7) The Commission shall, if requested in
wri~ting by the deputy minister; recommend to the
.Lieutenant Governor in Council the appointment~of a
person on the probationary staff of the classified
service to the regular 'staff of the classified
service, and the recommendation shall be
accompanied by the certificate of qualification and
assignment of the Commission.
8.-(1) A minister or any public servant who is
~designatd 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~ desi{;nee under
subsection (1) shall be deemed to have been made by
his-minister. R.S.O. 1980, c. 418, s. 8.
Section 6 of Regulation 881/89 'under the Public Service Act
reads 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 divided into,
(a) Group 1, con'sisting of. employees
who are employed,
(i) on a project of a non-recurlring
kind,
(ii) in a. professional or other
special capacity,
(iii) on a temporary work assignment
arranged by the commission 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, ~
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(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
recurrin~ kind,
(i), for fewer than twelve
consecutive months and for
fewer than,
(~) 36 1/4 hours per week
where the Dosition, if
filled by a civil
servant, would be
classified as a position
requiring 36 1/~ hours of
work per week,
.(B)' 40 hours per week where
the position, if filled
bl; 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 consistin9 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,
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duties @erfor~ed by civil
servants, and
(ii) who are not employees that.
belong to Group.t, 2 or 3.
O. Reg. 24/.96, s. 3(1),.part;
O. Reg/ 129/89, s', 1
The Par~ies Positions
Submissions from .counsel were received, orally at
the hearing and subsequenly in'writing at their joint
requests. We have considered them all and appreciate the
effort and assistance both counsel have given to help the'
Board in its deliberations.
The Union argues that the griever qualifies .as a
"Beresford" type of employee [see OPSEU (Beresford) v.
Ministry of Government Services, GSB decision November 12,
1987 (Mitchnick)] and that she was improperly appointed, to
the unclassified service because she. was employed to meet the
"ongoing requirements of. the Crown." The Union relies on the
distinctions articulated in' the Beresford line of authorities
that recognize the permanent, ongoing.nature of classified
appointments vis-a-vis the temporary.nature of unclassified
appointments. The Union argued that 'the griever's work
history indicates that she ought to. be considered and
credited as a classified member of the work force. The Union
stresses that the collective agreement, read in its entirety,
recognizes fundamental differences between the classified and
unclassified work force under the Public Service Act. These
are said to be as follows:
1. Oaths under Section 10 are manadatory for civil
servants.
2. The prohibition against canvassing in
Section 13 applies to all civil servants, but
only a portion of .the unclassifed staff.
3. Section 14 prohibits only civil servants from
speaking on matters of the platform of a
. political party.
4. Section 17 prescribes a retirmement age
restriction for Civil Servants but not for the
unclassified ..
5. Unclassified staff ar~e appointed by Ministers,
whereas classified staff are appointed by the
Civil Service Commission.
6. The. Collective Agreement has been negotiated on
the basis of the "temporary/permanent"
distinction between the two services. It was
said that Section 4 assumes that all permanent
positions would be appointed under it and the
Collective Agreement should not be read as
allowing SeCtion 4 to be "bypassed by a
parallel permanent service appointed under
Section 8 ·"
7. There are 27 different instances in the
Collective Agreement where unclassified
employees receive "reduced'" benefits and job
security under the Collective Agreement based
on the ·lesser employment claims due to the
"temporary nature" of the unclassified work
force.
The Union argues 'that "th'e on.ly conceivable
justification for negotiating more for the classified is that
they have superior employment claims" to temporary,
unclassified employees·. -It was said that until the decisions
in Porter v. Ministry of Skills Development, GSB File 428/90
(Brandt), November 12, 1991 and Parry v. Ministry of.
Financial Institutions,, GSB File No. 237/91 (Low), October
16, 1991, the distinction has been recognized and respected
by the GSB-and the Divisional Court. (See Beresford, supra-;
Milley, GSB File 1912/87 (Mitchnick), May 12, 1987;
Beresford/Milley, Div. Ct. November 26', 1990 and Bressette~
GSB File 1682/87 (Wilson), June 29, 1989, etc.) We were
urged to continue to give substance tO the distinction by
continuing to recognize that unclassified appointments be
only of a temporary nature. If the distinction·between the
two work forces no longer exists, then OPSEU indiCated it
would be obliged to negotiate equal benefits for unclassified
employees if management intends to use them'to fill permanena
joD requirements.
The Union further argued that 'the amendments to
Section 6 of the 'Regulations should not obliterate the
distinction in the two work forces, it was submitted that
the employer's power to appoint to t.he unclassified service
comes only within Section 8 of the Public Service Act and
that Regulation 6 only "fleshes out" that power by explaining
and also limiting the appointments so that they must fall
within the parameters of the legislation or be unlawful. We
were ur. ged to adopt the Beresford and Milley concept that
Regulation 6 serves as an "interpretative guide" to Section 8
and warned not 'ko read it as enlarging or expanding the
Employer's power to appoint to the unclassified staff. (See
R. 'v. Slater Steel Industries Ltd. (1971), 10.R. 760 (cry.
Ct.).) We were' urged to interpret Regulation 6('4) in light
of the temporary nature of appointments recognized earlier by
the Board to apply tO al'l Section 8 .appointments. It was
said that if management's position was accepted, it Would
essentially ~ pUt the Board back to the discredited ~icks
approach to these casesl (See Berssette, supra, and Blondin,
GSB File 78/89 (Keller), July 10, 1991.)
Further, the U~oa argued that unless its
interpretation were to prevail, the Collective Agreement
would be in conflict with the Regulations. It was said that
if Group 4 appointments were to be used to permit manager~ent
to fulfil its ongoing requirements with unclassified staff,-
this would conflict with Article 3.15.1 of the collective
Agreement and that only the Collective Agreement can prevail.
The Union further urges that the Board's recent
decisions in Porter and Parry are "manifestly incorrect"
because the~."obliterate the difference in substance
(permanent/temporary) between the classified and unclassif~.ed
services" aad: that they .essen¢iall~r uso Section 6 of the'
Regulations to improperly expand the Minister's power of
appointment under Section 8 of the Public Service Act.
Again, it was stressed that the power to appoint to the
unclassified service comes solely from Section 8 of the Act
as "fleshed out" by the Regulations, but only the Legislature
can amend Section 8. Reliance was again placed on Berssette
at pages 17 'and 18.. It was ·argued that if _P__a~ry and Porter
were now followed, the Board would be departing from its
earlier jurisprudence in Beresford and a "juztisprudential
"mish-mash" would follow akin to the earlier Beresford/Mitley
and Hicks internal BOard confusion. We were referred to the
Divisional Court's decision in Dupuis, unrep6rted May' 8,
1990, that advises this Board to adopt a "manifest error
policy" in approaching decisions of earlier panels. The
Union contends that Parry, and Porter are "manifestly in
error" and that the Beresford line of cases ought to be
followed.
/.
With respect to ~he griever personally, it was
argued that the evidence supports the Union's contention that
she was appointed to meet the ongoing requirements of the
Ministry and thus should be recognized as a Beresford type of
employee. Reliance was placed on the Sean Ryder decision,
GSB File 2413/87,. Spri.ngate, November ~9, 1988. The parties
agr.ee that the griever is neither a GrouD 1 nor 3 employee.
The Union says she cannot be considered as a Group 2 employee
because she was employed' 3 1/2 years continu'ously rather that
the "less than 12 mon~ths" uro3ects encompassed by Group 2.
.. Further, it was said she cannot be considered a Group 4
employee if the regulation is interpreted consistently with
tho "temporary" nature·of the appointments. The remedy
requested is that we order her to be classified by the
Employer a6d thus have her accorded the status she seeks.
the alternative, we are asked to require that she be
appointed to the classified service to a position she Would
have been in but for the improper appointment. Damages~were
sought ..
counsel for the Ministry argues that the griever
was properly ap~)ointed to the unclassified service and is not
entitled to claim any remedy before this Board. It was
pointed out' tha~ the qrievor was initially appointed to the
unclassified 'staff for les's than .twelve months and then
subsequently reappointed in accordance with Section 8 of the
Public Service Act for various periods. In the alternative,
and in any event, as of March 1989, with th~ coming into
effect of the amendments to Regulation 6 creating Group 4,
all the contracts after March 1989 were sa.id to "form~ a
relationship, with the griever and the Ministry that falls
within Section, 8 of the Public Service Act."
Counsel for the Employer argued that the Parry and
Porter decisions ought' to be .followed. Counsel for the
Ministry stressed the fact that' in previous decisions, the
Board has relied on .Section 6 of Regulation 881/89 .to
interpret Section 8 of the Act. It was' submitted that the
· .Parr~ and Porter decisions simply follow-this form of
analysis by~ using the amended P:egulation as an 'interpretive
guide to Section,8. It'was further submitted that both the
Porter and Parry decisions depart from the early
jurisprudence as contained in Beresford becaUse the earl.ier
cases w~re-simply based on regulatory wording which has now
been amended. Counsel for the Ministry argued, "The fact
that law has Changed does not mean that Beresford is wrong;
',it simply means that Beresford is now obsolete,"
It was strenuously argued that the interpretation urged by.
· the Employ~ in this case'is consistent with Section 8 of the
Act and thus ought to be upheld. Further, counsel for the
Employer responded to the Union's listing of "differences"
between .the classified and unclassified employees ~as being
"neithe~ helpful nor significant" in that there are also
large numbers of similarities between the two types of
employees throughout the Public Service Act. In Short, we
were urged to accept and adopt the language and analysis in
the Porter and Parry decisions.
With respect to a question 'of remedy, the Employer
relies heavily-on the Econosalt Inc., unreported decision
dated March 21,' 1991, dec'ision of the Supreme Court of.
Canada, which held, in the federal sector, that a Board could
not ignore statutory' process for entry ·into the Public/Civil
Service by declaring defacto employee status on certain
people. It was po, inted out that the Grievance Settlement
'Board decisions relied upon by the Union Where the Board
conferred classified status upon grievers do not refer to the
Econsault decisions.(see Blondin and Arellano GSB File
2401/90, (Fisher)) or that they were dist'inguishabie
factually (see Union grievance GSB File 1480/89, (Kaplan)) or
that Group 4 and t~e improper classifications were not an
issue (see Canete GSB File 2192/90, (Simmons)). The Employer
argues that .if the grievance were allowed the only
appropriate remedy would be a declaration and, at the most,
damages in the nature of Employment Standards Act minimum
protections.
The Decision
The dispute that is before this panel has been
before this Board many times. Until the coming into effect
of the amendment to the Regulation creating the Group 4, the
case law.had become well settled and has been wisely and ably
set forth by Vice-Chair Brandt in his Porter decision.· We
can do ne.better than to quote his analysis beginning at
page 3:
The Board has, however, in a line of .cases'
'beginning with Boresford (1429/86), held that the
propriety of an appoinhment to the unclassified
service may be challenged by inquiring into the
nature o~ the appoin.tment and the duties perfOrmed
by the incumbent in order to determine whether the
appointment conforms to the requirements set out in
the Public Service Act and the Regulations enacted
t'hereunder.
.The relevant provisions of the Public Service
Act are as follows:
8(1.) A minister ... may appoint for~ a period
of not more than one year on the first
appointment and for any period on ar~y
subsequent at)pointment' a person to a
position in the unclassified service in
any ministry over wh~ich he presides.
9. A person who is appointed to a position
in the public services ceases to be a
public servant at the expiration of that
period.
At the time that Beresford was decided
section 6 of Regulatioh 881 under the Public
Service Act defined the unclassified service as
i~"consisting of employees who are employed under
individual, contracts in which the terms of
employment are set .out" and which are divided into.
three groups of employees. Broadly speaking these
groups comprised seasonal employees or employees
employed on temporary projects.
In Beresford the Board commented on these
provisions in the following terms:
Section 6 of Regulation 881 .... provides tha't
"the unclassified service consists of"
contract employees an(~ '"is divided into"
3 groups, which are .set out in detail i~ the
remainder of the section. That language is
cast in a way that. is "exhaustive" (as opposed
to "inclusive''), and appears to provide .... a
definition of the kind of si-tuation
contemplated by inclusion of a power of
appointment to the. unclassified service by way
of. section 8 of the Act. .ThoSe 3 "Groups" set
out in the regulation, on the other hand,
cover a very wide range of sit'uations, and
obviously create a broad degree of discretion
in a minister when considering a fixed-term
appointment to the unclassified service,
rather, than an open-ended appointment to the
classified. In fact, the bulk of the
appointments to the unclassified staff would
· in all likelihood "speak for themselves", in
the sense that they would, by their very
nature, fall within .the terms of section 6.
It 'may well be that in such cases no further
evidence from the employer will be needed. It
is only, in other words, where the evidence
pertaining to the position suggests on its
face that the position fits into none of the
categories of employment set out in section 6
of the regulations that an onus will arise
upon the employer to present evidence of its
own which would demonstrate that the
appointments, did in fact fall within one of
the .specified categories.
The Board went oD to find on the facts of the case
before it that since the appointment.did not fall
into one of the-'categories set out in the
regulation it was ,improper". 'However, rather than
direct that the grievor be appointed to the
classified service, the Board issued a declaration
and left 'it to.the parties to work out a
satisfactory remedy. .·
The Beresford analysis has. been repeatedly
followed by the Board. In Milley (1972~'87)· the
Board was asked to reconsider its decision in
Beresford but declined to~do so. An application
for judicial review of both Beresford and Milley
was~dismissed by the Divisional Court and leave to
appeal to the Court of Appeal was denied. Although
some contradictory jurisprudence emerged briefly in
Hicks (2563/87)', that case has subsequently been
discredited. (See, for example, Bressette
( 1682/87 ). )
However,. while the union' has been successful
in obtaining declaratory relief where it is found
· that an appointment to the unclassified service was
improper, it has not, until very'recently, been
successful in persuading the' Board to order that a
successful grievor be appointed to the classified
service. (See Wagner (351/89, 352/89); Kozak
(977/88); Branch (314/89.)
Some uncertainty over the question of remedy
has arisen as a result of certain remarks of the
Divisional.Court concerning the question of the
Board's authority to order the appointment of a
successful griever to the classified service. It
may be recalled that in both Beresford and im
Mil_ley the Board had left the question of remedy to
the parties. Whe'n those efforts failed the parties
returned to the Board and a panel chaired by
Mr. Samuels ruled that the Board lacked the
authority to order an appointment to the classified·
service. In this 'respect the Board was following
its own practice established in Wagner.
However, on judicial review of the Samuels
award, the Divisional Court, while dismissing the
application, commented obiter that it was
"incorrect" to say that the Board did not have the-
authority to order an appointment to .the classified
service; .that "the Board does have-the ultimate
remedial power to appoint an employee to the
classified service if it considers the remedy
'appropriate for -a partlcul-ar employee."
In Canete (2192/90) the Board had an
opportunity to consider the remedy issue in the
light of the remarks of the Divisional Court in
Beresford/Milley. The Board reviewed the
jurisprudence which had consistently held that it
lacked authority .to order an appointment to the·
classified service (Wagner, Beresford/Milley) but
stated that, in the light of the remarks of the
Dfvisional Court in Beresford/Milley, any earlier
statements of the Board to the effect that it lacks
the remedial authority. to appdint-an employee to
the classified service must be deemed now to .be bad
law. Accordingly, the Board directed that the
.griever be placed on the surplus list in the
classified service.
In the Pa_trY decision, the Board dealt' for the
first time with the impact of the enactment of the Group 4
type of employees into the Regulations. The Board found:
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 could.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
- 14 -
of the Regulation or not, i~s to strain the language
of~ the statute beyond what it can bear, and I would
no% so construe the section even in the absence of
the addition of the fourth group of unclagsified
employees found at section 6(1)(d) of the
Regulation.
The Parry case theY"went on to conclude:
As the regulation stood at the date' of
Mr. Parry'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 I,' 2 or.3 of the
ReGulat~ion.. 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 the first
contract is for less than one year. In short, the
Minister ma~ appoint a person to the unclassified
service and a person in the unclassified service is
defined as anyone appointed by the Minister' under
section 8 to the unclassified service. While the
draftsmanship is not elegant, we are unable to
escape the concl'usion that the intent of the ..
legislation is to expand the Minister's powers of
appointment under section 8 of the Statut~ ....
The Parry panel did indicate that, although the Minister's
power t° 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 Regulations" the Minister was also
under obligation Under the Collective Agreement,
- Article 3.15.1, to establish a position within the classified
service and' post such a vacancy if the same work has' been
performed for a period of at least two consecutive years,
effective April 1, 1991. ~
In the POrter decision, the Board recognized that
it was deal{ng with a' unique situation in that the partie~
were agreed that the position occupied by the gri-evor'was not
-15-
a temporary position and was clearly designed to serve the
· ongoing ne~ds of the employer. As the Boa'rd commented:
To all 'intents 'and purposes the terms and
conditions of her employment were such that.h'er
position could not be distingu]'shed from a position
in the classified service.
Thus, the specific issue, before the Porter panel'was whether
the amendment to section 6 to the Regulation creatin~ the
Group 4 employees-means that the Beresford reasoning no
longer applies. The Board concluded that the griever's
appointment~ fell squarely within the Group 4 category and
thus was a "valid" unclassified appointment. It the6 went on
to. consider whether the amendment to the regulation needs to
be "read down" so as not to Conflict with section 8 of the.
Public Service Act. The Board'concluded:
It is well recognizod that delegated
'legislation must be' interpreted in the light of the
enabling statute. (See, for example, R. v Slater
Steel Industries Ltd. ~1971] 10.R. 760 (Ont. Cty.
Ct.). However, the Board must also refrain ~ from
giving the language of the regulation a
~onstruction which it ~cannot reasonably bear. in
that regard we are unable"to see how O. Reg 129/89
can be construed in tho manner suggested by the
.·union. Specifically, Group 4 is to consist, inter
alia, of employees who do not belong to any of the
first three groups. Since the fi'rst three groups
define a kind of relationship which is temporary in
nature it appears evident that 0.. Reg 129/89 was
intended to comprise employment relationships which
are not temporary in nature. To construe O'. Reg
129/89 in the manner suggested by the union would
be essentially to ignore it.
In the face of these interpretive difficulties
'-. the only alternative is to find O. Reg 129/89 to be.
ultra vires the Public Service Act. Difficult
questions may arise as to the scope of our
authority to declare a regulation to be ultra
vires. However, it is unnecessary to express any.
opinion ·concerning that mat. ter since, in our view,
there is no conflict between O. Reg 129/89 and
section 8 of the Public Service Act. Accordingly,
it should be given its full effect.
- 16 -
The Board also concluded:
Section 8 itself, while it contemplates an
initial appointment for no longer .than one year, is
completely open ended 'in terms of an}, subsequent
appointments. Such appointments may be made for
any period on .any subsequent appointment. Thus,
there is no limit 'to either the number' of
appointments or tO the duration of each
appointment. It is impossible to read into
section 8 a requirement that appointments be for
jobs which are limited 'in duration.
It happens that, at the time that the Board
decided Beresford, section 6 of Regulation 881
defi.~ed the appointing power in those terms.
However, there is nothing in Beregford or in any of
the other cases in its wake tha~ state or suggest
that the Lieutenant-Governor in .Council could not
expand upon the groups idbntified in the
Regulation.~ This is the first case in which that
question has been raised.
We find some' support for this conclusion in
Bressette. In the passage referred to above, and
upon which the union relies, the Board speaks of
the "existing regulation at the time of Beresford"
as appearing to exhaust the general scope of the
appointment power. We agree. However, it does not
follow from this that a change in the regulation
cannot expand the "general scope (of the appointment
power". In our opinion that is precisely what has
happened, with the enactment of 0.. Reg 129/89. The
Cabinet in its wisdom has chosen to deal with the
kind of problem presented by .Beresford by
broadening the basis upon which appointments to, the
unclassified service could be made. Insofar as
section 8 of the Public Service Act does not, on
its face, purport to limit such appointments in the
manner suggested by the union, we see no conflict
between it and O. Reg. 129/89.
The Union is urging us to consider the Porter and
Parry decisions as manifestly wrong and to depart from their
analysis. The Union asks us to return to the Beresford
approach; But it must be r. ecogni, zed that at the time the
Beresford decision .was released and the cases which followed
upon it, Section 6 of the Regulations provided what the Board
and the Courts came to recognize as an "exhaustive"
defin'ition of the power of appointment to the unclassified
service. In other words;' if the nature of the appointment
was not such that it fell squarely Within the confines of
Section 6 of the Regulations, the appointment was declared to
be not properly within the unclassified service. This was
largely due to the restrictiv~ wording of section 6 itself.
The enactment of the amendment to Section 6 creating Group 4
fundamentally chan~es the "exhaustive" or 'restrictive nature
of the definition to a broader, potentially eDen-ended "
concept Which would include any employee who~ would not fit
within Group 1, 2 or 3 ....
Mr. Ryder's and the Union's concerns about the
Porter and Par. r~f decisions, quite understandably focus .on the
language in those decisions that suggests tha~ the amendment
to ~he ~{equlation creating Group. 4 "expands the Min'iSter's
power of appointment under Section 8 of the Statute." As R__.
v. Slater Steel, supra, tells us at page 763:
... For some time it has been the settled policy of
legislatures to confine its efforts to the task of
layinG down general principles of law and to
delegate to subordinate authorities the power .of.
making regulations for the purpose of settling' the
details of the procedure necessary for giving
effect to general principles.
It is trite law that, if a power exists by statut~
to make regulations, that power must be exercised
strictly .in accordance with the provisions of the
statute .... These 'regulations, however, must be
within the principles of the. Act itself. If it
were otherwise the Legislature would serve no
useful purpos~ in our democratic process.
Halsbury's Laws of England, 3rd edition, Vol.
36, page 493, para.. 745, states the principle of.
interpretation to be followed in interpreting
statutes and 'subordinate legislation:
The overriding principle in the interpretation
of legislation made under powers conferred by
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statute is that it should be construed in
~light of the enabling statute generally and,
- in particular, so as to be consistent with its'
substantive provisions, at any rate where it
is not authorized tO repeal or amend them, and
otherwise in conformity with the terms of the
enabling power.
Clearly, the regulations cannot repeal or amend the
enabling legislation. The Porter decision reviewed these
principles and concluded that the regulatory amendment did
'not amend SeCtion 8 of the Act because nothing within the Act
limits the duration 'of appointments or requires them to be
limited'in duration. But Porter and Parry suggested that the
Minister's powers had been expanded. The Union's frustration
with this conclusion is based on the fact that it seems in
conflict with the conclusion in Bere~ford that indicated that
the language in S~ction 8 was significant:
... there must be.something about the job in its
initial incep~ion which distinguishes it from
normal "permanent" position in the classified
service. (Page 14)
Yet, that same panel in the'Beresford decision. continued its
analysis by mentioning that a more persuasive interpreting
factor., was that Section 6 of the Regulations set out .various
fixed term type of appointments. It is further to be
recalled that. when the Divisional Court considered the
Beresford/Milley issue, it also saw Regulation 6 as an .
interpretive guide, "elaborating upon and perhaps defining
the unclassified service to which Section 8 refers."
It is therefore clear that the Regulations can aid
in the interpretation of, but not amend Section 8 of the Act.
What then is the effect of the creation of the Group 4
category? This Board came to recognize that Groups 1 - 3 all
have a "temporary" nature to them by virtue of the time and
sequential references throughout the section. But Group 4
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then allows that anyone not within the Groups could fail
within Group 4. This effectively broadens the concept and
eliminat'es the elements of similarity and/or the "temporary"
characterization of the unclassified 'appointments.
Thus, we have to ask whether anything in Section 8
of the. Act confines unclassified appointments to a concept of
a "temporary" nature as the Union wishes us to accept. It
does at the outset bY requiring that the first appointment
may only be for one year, but it specifically allows that
"subsequent" appointments may be'for "any period". This
allows the Ministry to appoint people to unciassified service
for "any ·period" whether it falls within 'the frames of Groups
:'. I to 3 'or 'not.
But Section' 8 does also demand that the appointment.
be for a designated "period'". It does not allow for
open-ended, unlimited or permanent type of appointments to
the unclassified staff. Otherwise there would be no purpose
to the language "for any period on any subseqUent
'appointment" [emphasis added]. The'period of the appointment.
is a critical component to the appointment itself.
Thus, we see the amendment creating Group 4 may
eliminate the "temporary" nature of appointments that was
recognized .in the Beresford/Milley cases which relied upon
Groups 1 to 3 for their interpre, tive guide. However we
recog'nize that Section 8 contemplates .a fixed .·period nature
to an unclassified appointment. Therefore, we conclude that
the Group 4 category has affected the definition of '
unclassified service in Section 8 by removing the temporary
and time constraints contained in Groups 1 to .3 previously.
The Minister's powers .may well have been "expanded" but not
beyond their legislative bounds if properly applied. The
Group 4 addition does not go so far as to remove the
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legislative requirement that the appointments to the
Unclassified staff remain of a~ periodic nature, albeit that
the fixed terms may now be longer than before. Thus, it is
With great respect and great reluctance that' we' must declare
.that we consider the Porter analysis overstated ~r to be
manifestly wronG where it concluded that:
It is .impossible to read into Section 8 a
requirement that appointments be .for jobs which are'
limited in duration.
This panel finds, in Section 8, the requirement that the
"subsequent" appointment be for a "period", but that the
nature, of. that period or term is not limited as it prev~ousl!;.
was to the time restrictions set out .in Groups 1 through 3.
This interpretation preserves the dist.inction
between the status of classified and unclassifed staff that
is apparent in the nature of the bargain between OPSEU and
the government throughout their col·lective agreement and that
was so ably pointed out by Mr. Ryder in his argument, it
recognizes the permanent ongoinG nature of appointments to
the classified or civil service' as distinct from the limited
appointments and employment claims of the unclassified ·staff.
This interpretation also seems logical in light of the n~ewly
negotiated Article 3.15.1 that allows·, effective April I,
1991, that if the same work is being done in the job for .two
years ~and there remains a continuing need for that work to be
done on a full-time basis, the position will have to be
recognized as within the.. classified service and duly posted
and filled as a vacancY within the classified work force.
This is a sen'sible balancing by the parties of the right of
the Employer to make contractually limited, yet long-term
unclassifed' appointments, 'but checking it with the
requirement to acknowledge a situation where a full-time
permanent position exists if the need for the works continues
beyond two years.
Where does all this analysis leave the grievor,
Ms. Just_us? In order to determine her case, we must look at
the substance rather than the form of her appointment~.
Notwithstanding the fact .that.the form of her appointment
stated that her ~contracts were "Group 2" type of
appointments, both parties acknowledge that it is the
substaace and not the form 0f her appointment that is
determinative. All panels of this Board have consistently
looked beyond the form of the.appointmeat to determine
whether or not the appointment was valid or not, The "
question of~ whether the appointment is valid depends on
whether or not it meets the requirements set out in the
Regul'ations. Our conclusion above obviates the need to
embark on a Beresford type of analysis as to the "nature" of
her' appointment in order ~to'decide if it was .of a "temporary"
or permanent nature. However, i't is only fair, to note that
we would have concluded that her role of filling in for
others'0ver her tenure in .the department was consistent with
a proper type Of unclassified appoint~ment. But in amy event,
on the facts of this case,' as se.t out above, 'we are persuaded
that the.grievor does fit within Group 4 of the Regulation
and as .such was properly appointed tO the unclassified ~'
service. Thus she has no status to pursue a grievance
complaining about her termination.
Thus, the grievance is dismissed.
DATED at Toronto, Ontario this 16th day of. March,
1992.
Paula Knopf r
"I Dissen£" (dissent to follow)
I. Thomson - Member
/~ ~. ~: (Addendum attached)
D. Clark ~ Member -
A D D E N D U ~
' O~B #879/91
OPSEU (Justus)
and The Crown iu Right of ontario
(Ministry of Revenue)
I agree with the decision that the griev6r does fit within Group 4
of the Eegulation aad. as such 'was properly'appointed to the'"
unclassified service.
Having been a member of the panel~ that heard the Porter case,
have had to reflect on whether or not the Porter analysis waS .in
fact overstated or manifestly wrong when it conoluded that:
It is impossible to read into Section 8 a requirement
that appointments be for jobs which are limited in
duration. ·
Having carefully considered all of the complex issues and
arguments in both the Porter ease. and the instant case, I am of
the opinion that the Porter analysis was not, as this award
indicates, overstated or manifestly wrong in making that
~ conel.usion'. With great respect, I feel that, as the Porter award
indicated at 'page 15, "... there is no limit to either the number
of appointments or to the duration of each appointment".
Don M. Clark
April 28,.1992
DISSENT
RE: 879/91 OPSEU (Justus) and the Crow~ in Right of Ontario
(Ministry of Revenue)
It seems to me that if the Public Service Act intended to
create two identical public services it would have done so and it
would not have treated the'classified service and the unclassified
service differently in so many of.its sections'.
The majority report' has the' effect for all practical
.purposes of eliminating any difference between the two services.
For this reason and for reasons.set out in the Union
argument I would have allowed the grievance.
I. ~omson, Member