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HomeMy WebLinkAbout1986-0033.Lacasse.87-02-24BETWEEN: IN THE MATTER OF AN ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE Before: For the Grievor:. For the Employer: THE GRIEVANCE SETTLEMENT BOARD 416/598- 0688 File: 0033/86 OPSEU (E. Lacasse) Cr i evor - and THE CROWN IN RIGHT OF ONTARIO Ministry of Agriculture and Food Employer R. L. Verity, Q.C. Vice-Chairman I. J. Thomson Member I. J. Cowan Member A, Ryder, Q.C. Counse 1 Gowling & Henderson Barristers & Solicitors R, B. Itenson Staff Relations Officer Staff Relations Section Human Resources Secretariat Hearing Date: October 6, 1986 -2- DECISION This case represents yet another attack on the Grievance Settlement Board's long jurisprudence namely, that in the absence of a dismissal under S. 18(2) of the Crown Employees Collective Bargaining Act, the Board has no jurisdiction to review the non-renewal of a term appointment to the unclassified service. The Board's jurisprudence was stated by Vice-Chairman Draper in (Skalesky), 429/81 at P. 3: "The issue raised by the present case was dealt with by the Board in Bond, 173/78, and in Johnson and 72/96. In dismissins the grievances in question' the- Board found that a person who is employed as a public servant by way of appointment for a specified period to a position in the unclassified service under section 8 of the Public Service Act, and whose employment ceases by operation of section 9 of that Act and in accordance with the terms of the appointment, cannot be said to have been dismissed within the meaning of section 18(2) (C) of The Crown Employees Collective Bargaining Act." The facts of the instant grievance relate to the identical issue. The following facts were agreed upon by the Parties: (1) Mrs. Lacasse was employed as a secretary in the Ministry's Agricultural Representations Branch in the Algoma District office in Sault Ste. Marie. -3 (2) At all times, she was 'a public servant in the unclassified service, employed under a series of term appointments pursuant to ss. 8 and 9 of the Public Service Act. (3) Mrs, Lacasse performed clerical duties similar to duties performed by civil servants in the classified service within the Clerical Stenographer 2 class standard. (4) She was first employed in 1979 and continued to be employed under a series of employment contracts, each of six months duration, 14 in total, until the expiration of the final contract on March 15, 1986. (5) 'In February, 1986, Mrs, Lacasse was advised by her supervisor that her contract of employment would not be renewed. In the result, her employment as a public servant ceased with the expiration of the term appointment on March 15, 1986. (6) In a grievance dated February 26, 1986, Mrs. Lacasse alleged: am being unjustly terminated". (7) The Grievor was an employee governed by the Crown Employees Collective Barqaining Act. (8) OPSEU is the exclusive bargaining agent under the provisions of the Crown Employees Collective Bargaining Act. -4 - On behalf of the Employer, Mr. Itenson advanced the preliminary objection that in the absence of a dismissal, the Board lacked jurisdiction to review the merits. He contended that the Board should dispose of the preliminary objection prior to proceeding further . I On behalf of the Union, Mr, Ryder acknowledged that there was no discipline involved in the termination of the Grievor's employment. However, he requested the opportunity to advance three arguments which he submitted did pertain to the issue of jurisdiction. that with the expiration of the term appointment' on March 15, 1986, the Grievor's employment relationship was terminated "in fact" but not "in law". Simply stated, Mr, Ryder requested the opportunity to persuade the Board that the Grievor was entitled to the rights contained S. 18(2) of the Crown Employees Collective Bargaininq Act. He contended The Board heard Mr, Ryder's arguments. We will not attempt to repeat the first two arguments except in summary form, However, the Charter argument merits repetition in its entirety. The first argument alleged that individual contracts of employment were invalid because they were inconsistent with the exclusive bargaining relationship established under the Crown Employees Collective Bargaining Act, In support of that position, Mr, Ryder relied upon the principle enunciated by Chief Justice Laskin in McGavin Toastmaster Ltd, V. Ainscough et al, (1975), 54 D.L,R, (3d) 1, The -5 thrust of this argument was that individual contracts of employment cannot be raised by the Employer to deprive the Grievor of her statutory right under S, 18(2) of the Crown Employees Collective Act , The second argument was based on the assumption that individual contracts of employment were valid. Mr, Ryder contended that the Grievor's employment status in the unclassified service could not be justified under any "group" of unclassified employees as contained in S, 6 of Regulation 881 under the public Service Act. He argued that the Grievor had been improperly in the unclassified service and accordingly could not be deprived of her rights under S. 18(2) of the Crown Employees Collective Bargaininq Act. The final argument alleged that the Employer's actions in terminating the Grievor's employment violated S. 15 (1 ) of the Canadian Charter of Rights and Freedoms - The Constitution Act, 1982, The Union's position was that the Employer's application of the provisions of ss, 8 and 9 of the Public Service Act to the Grievor's situation was inconsistent with her Charter rights,, Mr, Ryder's written argument on the Charter issue merits repetition in its entirety. The argument was as follows: The collective agreement covers unclassified employees in Article 3, i,e., employees who are not civil servants (PSA l(i)), It is submitted, however, that the Grievor is not subject to Article 3, -6 - that she falls within the body of the collective agreement and that her dismissal, therefore, can only be sustained for cause, The argument in summary is: 1, The must interpret a collective agreement in such a way as to ensure the collective agreement does not conflict with a law applicable to one of the parties. In other words, a party which is subject to the Charter cannot do under the collective agreement what it is prevented from doing by the Charter, It is to be noted that this argument does not ask the Board to interpret any legislation in light of the Charter but confines itself to an 'and application only of the collective agreement in light of the Charter; 2, The Ministry is subject to the Charter when it establishes and implements terms and conditions of employment; 3, the Ministry violates S, 15 of the Charter when it treats employees who are similarly situated differently by imposing less advantageous terms and conditions of employment in respect to them; 4, Such violation is not a reasonable limit for the purpose of so 5. Article 3.1 of the Collective Agreement is of no effect to the extent it purports to confer on the Ministry a contractual right to treat employees who are not classified as civil servants but, in 1 -7 - substance, perform all the duties of civil servants, differently than employees .who are classified as civil servants, I, JURISDICTION OF THE BOARD An Arbitrator must refuse to g ive effect to a provision of a collective agreement, or a part thereof, when it conflicts with the law. A conflict exists when the provision, or the part thereof, confers upon the employer a contractual right or obligation which, when exercised, deprives employees of their rights under a law which binds the employer. McLeod V. Egan (1974), 46 (3d) 150, at pp. 152 and 155 Re Queens University and Fraser et (1985) 51 O.R. 140 at pp. 142-143 adn 148 (H.C.) Re Denison Mines Limited and United Steelworkers (1982), 5 L.A.C. (3d) 19, at 28 et, seq, (Adams) THE MINISTRY IS SUBJECT TO THE CHARTER WHEN ESTABLISHING TERMS AND CONDITIONS OF EMPLOYMENT Section 32(1)(b) of the Charter provides that the Charter applies "to the legislature and government of each.province in respect to all matters within the authority of the legislature of each province". The section contemplates that two questions must be answered: first, is a particular body or agency "government", and second, is the impugned activity of the body or agency "in respect of -8 - matters within the authority of the legislature of [the] province", With respect to the first of these, there is no doubt the Ministry is "government" , Operation Dismantle V, The Queen [1985] 1 S.C.R. 441, at pp. 463-464 and 450. A governmental actor, such as the Ministry, is subject to the Charter when engaged in acts of a legislative or administrative nature, In particular, a government actor is subject to the Charter when it enters a collective agreement and executes the terms of such an agreement , B Lavigne V. Ontario Public Service Employees Union and Ontario Council of Regents for Colleges of Applied Arts and Technology (unreported decision the Supreme Court of Ontario, July 4, 1986, White Lavigne V. Ontario Public Service Employees Union and Ontario Council of Regents for Colleges of Applied Arts and Technology (unreported decision the Supreme Court of Ontario, July 4, 1986, White of J.,' at-pp. 50 and 52-53) It is submitted that the words "in respect of all matters within the authority of the legislature of each province" are merely a reference to the division of powers in ss. 91 and 92 of the Constitution Act, 1867. They describe the subject matters in relation to which the legislature of a province may legislate or the government of the province may take executive action and do not impose any further limitations on the scope of the Charter, Operation Dismantle V. The Queen, supra, at pp. 4 63-4 64 Re McCutcheon and City of Toronto (1983), 147 D.L.R. (3rd) 193, at P. 204 -9 - Ontario Council of Regents for Colleges of Applied Arts and Technology (St. Lawrence College) V. Ontario Public Service Employees Union (Teplitsky) Establishing the terms and conditions of employment and engaging in employment relations are clearly within the authority of the provincial government and its ministries. Constitution Act, 1867, ss. 91 and 92 111. SECTION 15 OF THE CHARTER Q It is submitted that S. 15 requires that individuals who are "similarly situated" be treated similarly. Therefore, obligated situated " under the Charter to treat employees who are similarly. Re Macdonald and The Queen (1985) 21 C.C.C. 330 at pp. 348-349 the Ministry is similarly Blainey V. Ontario Hockey Association and Canadian Amateur Hockey Association 540 (2d) 513 at pp. 523-527 (C.A.) , The inequality in this case is raised by the fact that the Grievor's continued employment is not protected by the right to grieve a decision by management to deprive her of her employment (or to refuse to renew her contract) although the Government employs others, doing the same work, who enjoy the benefit of the protection, given by S. 18(2) of the Crown Employees Collective Bargaining Act entitling them i - 10 to grieve a decision to deprive them of their employment. It states in part : "In addition to any other rights of grievors under a collective agreement, an employee claiming (C) that he had been disciplined or dismissed or suspended from his employment without just cause , may process such matter in accordance with the grievance procedure provided in the collective agreement . . It is submitted respectfully that the Grievor is "similarly situated" to employees who enjoy the protection and of S. 18(2) of the Crown Employees Collective Barqaining Act in that the work performed is the same and the consequences of loss of employment is the same as it is for the employees covered by S. 18(2). the grievor is "similarly situated" to employees who are classified as "civil servants" and enjoy the terms and conditions of employment established by the provisions of the Collective Agreement (other than Article 3). Therefore, it is submitted that Grievor has a right, pursuant to S. 15 of the Charter, to the same terms and conditions of employment enjoyed by employees who have been classified as civil In other words, servants. It is submitted that the application of S. 15 is not precluded by the administrative nature of the acts in question. words "equal before and under the law" and "equal protection and benefit of the law" cover not only explicit legal norms such as The - 11 - statutes, regulations and admin i s tr at ive authority . under the law" or to have common law, but also the exercise of An individual cannot be said to be "equal the "equal protection and equal benefit of the law" if he or she is dikiminated against by an administrative act. This point is substantiated by the implication in S. 15(2) that S. 15(1) applies to a "law, program or activity". Tarnopolsky, Equality Rights and the Canadian Charter of Rishts and Freedoms 61 C.B.R. 242, at Swinton, Application of the Canadian Charter of Riqhts of Freedoms, in TarnoDolskv and Beaudoin (Eds. ) Canadian Charter of Rights- and Freedoms (19821, at P. 52 It is further reference to "terms and submitted that the absence of explicit conditions of employment" in S. 15 does not preclude it being a prohibited ground of discrimination. "The words in particular' make clear that the specified grounds of discrimination are not exhaustive, so that laws discriminating on other grounds, for example, height or sexual preference, would also be coveredoby Constitutional Law of Canada, 2nd Ed., 1985, 799 IV. SECTION 1 OF THE CHARTER Sa 15." It is further submitted that the Ministry's violation of S. 15 of the Charter is not a reasonable limit prescribed by the law for the purpose of S. 1 of the Charter. The differential treatment of - 12 - "non-civil servants" like the Grievor results from the administrative activities of the Ministry. Therefore, \ limit is not "prescribed by law" and cannot be justified under S, 1. will only be "prescribed by-law" within the meaning of S. 1 if it is A limit on a right or freedom expressly provided for by statute or regulation, or results by necessary implication from the terms of the statute or regulation or from its operating requirements. The limit may also result from the application of a common law rule, Regina V, Therens (1985) 18 C.C.C, 481 (S.C.C,), at pp. 488 and 506 Even if the limit on the rights of the Grievor is "prescribed by law", it is not "reasonable" and "demonstrably justified in a free and democratic society", A party seeking to uphold the limit on these ground s must prove : (1) The object of the limit must be of sufficient importance to warrant overriding a constitutionally protected right or freedom in that it must relate to concerns which are pressing and substantial; (2) The means chosen for achieving the objective must be proportionate to the end. Proportionality has three components: (a) the measure must be rationally connected to the objective; it must not be arbitrary, unfair or based on irrational considerat ions; (b) the measure should impair as little as possible the right or freedom in quest ion ; - 13 - (C) there must be proportionality between the affects of the measure and the objective which has been identified as of sufficient importance. Unless each of these factors is proven, on a proponderance of probability, on the basis of evidence, by the parties seeking to uphold the limit on a right or freedom, such limit will not be saved by sa 1. R. V. Oakes (unreported decision of the Supreme Court of Canada, at pp. 40-42) Blainey vs. The Ontario Hockey Association and The Ontario Human Rights Commission 54 O.R. 513 (C.A.) Black V, Law Society of Alberta (unreported decision of the Alberta Court of Appeal, March 4th, 1986) V. CONCLUSION The Grievor is entitled to the same terms and conditions of employment as employees who are classified as "civil servants". Accordingly, the Ministry is required to afford to the Grievor treatment in accordance with such terms and conditions. Pursuant to the principal established in McLeod V. Egan, supra, Article 3.1 is of no effect to the extent it purports to confer upon the Ministry a contractual right to do that which it could not otherwise do pursuant to the Charter, i.e. to treat the Grievor differently than employees classified as civil servants. The words "employees who are not civil servants" must be restricted in their scope to employees who are not similarly situated to civil servants in terms of the duties and 14- . responsibilities of their employment. Accordingly, it is submitted that the Grievor is entitled to grieve the loss of her emplbyment under the procedures therefore in S. 18(2) of the Crown Employees Collective Bargaining Act and the Collective Agreement. Mr. Ryder provided the Board with three large binders containing authority in support of his position., On behalf of the Employer, the thrust of Mr. Itenson's argument that in the absence of a dismissal under S. 18(2) of the Employees Collective Act the Board lacked jurisdiction to review a termination of employment. He contended that S. 18 (1 ) of the Crown Employees Collective Barqaining Act gave to the Employer the exclusive right of "appointment" which right was specified not to be the subject of collective bargaining or to come within the jurisdiction of a Board. The Employer contends that the employment status is determined by the method of appointment and not by Mr. Itenson relied heavily upon ss. 8 and 9 of the He contended that under no circumstances could the Grievance be characterized as a dismissal. On the the job performed. Public Service Act. facts of the instant second argument Mr. Itenson contended that Regulation 881 cannot assist the Grievor. On the Charter argument, the Employer contended that the Grievor had the same right to grieve a dismissal as any other employee - 15 - governed by the Crown Employees Collective Act, He contended that in the absence of evidence that the Grievor was similarly situated, the agreed statement of facts was insufficient to pass the test of "similarly situated". of S. 15 on the facts of the instant grievance. In sum, there was no violation In deciding this matter, it is useful to set out the relevant provisions of the Collective Agreement within the legislative framework Of the Public Service Act and the Crown Employees Collective Bargaining Act . Certain provisions of the Public Service Act, R.S.0. 1980, C. 418 merit repetition: 1, In this Act, (a) 'civil servant' means a person appointed to the service of the Crown by the Lieutenant Governor in Council on the certificate of the Commission or by the Cornmission, and 'civil service' has a corresponding meaning; (b) 'classified service' means the part of the service to which civil servants are appo in ted ; I (e) "Crown employee' means a person employed in the service of the Crown or any agency of the Crown, but does not include an employee of Ontario Hydro or the Ontario North1 and Transportation Commiss ion ; (9) 'public servant' means a person appointed under this Act to the service of the Crown by the Lieutenant Governor in Council, by the Commission or by a minister, and ic service I has a corresponding 16 meaning; (i) 'unclassified service' means the part of the public service that is composed of positions to which persons are appointed by a minister under this Act. 1980, C. 418, S. 1. 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. R.S.O. 1980, C, 418, S. 7. The Commission shall, if requested in writing 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. R.S.O. 1980, C. 418, 7. 8. - (1) A minister or any public servant who is designated in writing for the purpose of 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 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.0. 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 that R.S,O, 1980, C. 418, S, 9." I .I' 17 Reference may also be made to the Crown Employees Collective Bargaining Act, R.S.O. 1980, C. 108 as follows: 1. (1) In this Act, f) 'employee' means a Crown employee as defined in the Public Service Act but does not include, (i) Pol ice Force, a member of the Ontario Provincial (ii) arts and technology, an employee of a college of applied a person employed in a managerial or confidential capacity, (iv) a person who is a member of the architectural, dental , engineering, legal or medical profession entitled to practise in Ontario and employed in a professional capacity, (V) a student employed during the student's regular vacation period or on a co-operative educational training program , (vi) work more than one-third of the normal period for persons performing similar work except where the person works on a regular and continuing basis. a person not ordinarily required to (vii) a person engaged under contract in a professional or other special capacity, or for a project of a non-recurring kind, or on a temporary work assignment arranged by the Civil Service Commission in accordance with its program for providing temporary help , (viii) a person engaged and employed outside Ontario, (ix) a person employed in the office of the Provincial Auditor , or - 18 Tribunal or the Grievance Settlement Board; a person employed by or under the (m) 'public servant' means public servant as defined in the Public Service Act and ic service has a corresponding meaning; 18 (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing , includes the right to determine , (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kids and locations of equipment and classification of positions; and (b) merit system, training and development, . appr a i sal and super ion, the governing principles of which are subject to review by the employer with the bargaining agent, and such natters will not be the subject of collective bargaining nor come within the jurisdiction of a board. (2) In addition to any other rights of grievance under a collective agreement, an employee claiming (a) that his position has been classified; (b) that he has been appraised contrary to the governing principles and standards; or (C) that he has been disciplined or dismissed or suspended from his employment without j ust cause , L- --- - grievance procedure provided in the collective , and failing final determination under - such procedure, the matter may be processed in - 20 - The following Articles shall also apply to seasonal or part-time employees: Articles 1, 9, 11, 12, 15, 16, 17, 21, 22, 23, 25, , 32 , 36 and 57." 27 - GRIEVANCE PROCEDURE 27.6.2 Any employee other than a probationary employee who is dismissed shall be entitled to file a grievance at the second stage of the grievance procedure provided he does so within twenty (20) days of the date of the dismissal." Constitution Act, 1982: 'Equality Rights 15, (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disabil ity. "Guarantee of Rights and Freedoms 1, The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." .Enforcement 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances - 21 - 'Application of Charter 32. (1) This Charter applies (a) respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and to the Parliament and government of Canada in (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. (2) Notwithstanding subsection (1 ) , section 15 shall not have effect until three years after this section comes into force." 'General 52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." The Grievance Settlement Board is a statutory body which' is created by and derives its jurisdiction from the Crown Employees Collective Barqaining Act. The jurisdiction of the Board was considered by Vice-Chairman Swan in Haladay, 54/78 at P. 3: "We should note that our jurisdiction is statutory only, and has two main branches. First, we are vested with jurisdiction to hear and determine disputes about the interpretation, application, administration or alleged contravention of the collective. agreement; this jurisdiction arises under S. 18 [now S. of the Crown Employees Collective Bargaining Act. Second, beyond that jurisdiction and independent of it, we have the jurisdiction set out in S. 17(2) [now S. 18(2)], quoted above. intercede between the parties; we do not have any inherent jurisdiction to do justice - or what we may conceive to be justice - or to provide remedies, no matter how desperately a particular We have no other authority to 22 - case may cry out for relief. The Board is a creature of the statute, and derives its jurisdiction solely from the statute. The only exception to that rule is that the parties may provide for certain matters in a collective agreement , and our jurisdiction is thus broadened to the extent that they have done so. Beyond this circumscribed jurisdiction, the Board's legal authority is non-existent, and any decision rendered beyond those limits would be a nullity and liable to be quashed before a Court." Under S. 18(2) of the Crown Employees Collective Bargaining Act, the Legislature departs from the traditional notion of collective rights and gives recognition to individual or personalized rights for individual employees to grieve matters set out ig clauses (a) (b) and (C) "in addition to" other rights secured for employees under the Collective Agreement (i.e. the right to grieve a dismissal as contained in Article 27.6.2 of the Collective Agreement). Clearly, the Board has the authority under S. 18(2) (C) of the Crown Employees Collective Act to determine the merits of a dismissal. In previous Awards, various panels of the Grievance Settlement Board have determined that the non-renewal of 'an employment contract in the unclassified service cannot be characterized as a dismissal. See, for example, Johnson and Szpakowski, 72/76 (Swan) Bond 173/78 (Adams); Skalesky, 429181 (Draper); Simpson, 694/85 (Kennedy); Mousseau, 1182/85 (Jolliffe); and Cascagnette, 7246/85 (Brandt). - 23 With respect, the Board is not persuaded that Mrs. Lacasse's termination is a dismissal which would entitle her to the rights contained in S. 18(2) and S. 19 of the Crown Employees Collective Act. Mrs. Lacasse was not a civil servant but was a public servant. In that capacity, she was governed by the provisions of Article 3 of the Collective Agreement. I In our opinion, the Union's first and second argument cannot C withstand the statutory provision for appointments to the unclassified service contained in ss. 8 and 9 of the Public Service Act. S. 8 authorizes a Minister or his or her designee, to make an appointment to the unclassified service initially for a period not to exceed one year. In addition, the Minister or designeee has the authority to make subsequent appointments "for any period". S. 9 directs that an employee "ceases to be a public servant" at the expiration of a term appo in tmen t . There is no dispute that the Employer has the authority to make an appointment to the classified service under S. 8 of the Public Service Act. The Judgment of Chief Justice Laskin in McGavin Toastmaster stands for the proposition that there is little, if any, room for individual contracts of employment once a collective bargaining regime has been established. In our opinion, the limitation to the Grievor's continued employment arises not from the individual - 24 - contract of employment but from the statutory limitation for appointments contained in ss. 8 and 9 of the Public Service Act. Accordingly, the notion of individual contracts of employment is an irrelevant consideration, In sum, individual contracts of employment for public servants are valid so long as they coincide with the provisions of Article 3 of the Collective Agreement and the terms of Ministerial appointments under ss. 8 and 9 of the Public Service Act. Clearly, there is an interrelationship between the Public Service Act, the Crown Employees Collective Bargaining Act and the Collective Agreement. In this Grievance, the argument is not unlike 4 the issue considered by Vice-Chairman Swan in Johnson and Szpakowski, supra, at pp. 4 and 5: .... The main argument advanced by the Union is that, an appointment for a specified term under S. 8 of the Public Service Act is contrary to the spirit of the applicable collective agreement, and that, at least after the first appointment (which is limited to terms of one year or less) the Employer should be found to have agreed to make further appointments subject only to dismissal for just cause or termination otherwise in accordance with the collective agreement. To expand slightly on the Bond decision, it is our view that, for the Union successfully to alter the impact of ss, 8 and 9 of the Public Service Act, it would need to negotiate express provisions in the collective agreement requiring such appointments to be entirely on the same basis as appointments to the classified service. Even in private sector labour relations, agreements are generally considered to be negotiated in the context of an ordered statutory framework. Here, the Public Service Act is part of that framework." - 25 - Xn addition, the Board adopts the rationale of Vice-Chairman Kennedy in OPSEU (Joanne Simpson) and Ministry of Correctional Services, supra, which we believe disposes of the Union's second argument. Vice-Chairman Kennedy states at P. 13 and 14: b a ". . .The Public Service Act creates the distinction between the classified and unclassified service, and it creates that distinction not on the basis of the particular jobs to be performed but rather on the basis upon which the employment status of a particular employee is created, Pursuant to that Act, a civil servant is, by definition, someone whose employment status is created under Section 6 and 7 of that Act. If the status is created under Section 8, as was the Grievor's, that person is not a civil servant, irrespective of what job is being performed. therefore comes within the recognition clause of the Collective Agreement. No action of the Employer with respect to the Grievor can change her status as established by the provisions of the Public Service Act and the Collective Agreement. Article 3 of the Collective Agreement does not refer to the classified or unclassified service. It refers only to employees who are not civil servants, The Grievor clearly is not a civil servant within the definitions of the Public Service Act. Whether there was any impropriety on the part of the Employer in placing her in the permanent position which she occupied is beyond the scope of this grievance. the position she occupies, if she is not formally created a civil servant within the meaning of the Public Service Act, she is subject to the provisions of Article 30" That person is a public servant and Whatever the nature of In summary, the Board is satisfied that. S. 9 of the Public Service Act deprives us of any jurisdiction to grant a remedy. The Grievor's employment expired on March 15, 1986. Subsequent to that date, she no longer fell within the recognition article of the 19 accordance with the procedure for final determination applicable under section 19, R.S.O. 1980, C. 108, 180" 19. (1 Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement," application, administration or alleged In addition, reference should also be made to relevant parts of the Collective Agreement. "ARTICLE RECOGNITION 1.1 In accordance with The Crown Employees Collective Bargaining Act, the Ontario Service Employees Union is recognized as the exclusive collective bargaining agent for all public servants other than persons who are not employees within the meaning of clause f of subsection 1 of Section 1 of The Crown Employees Collective Bargaining Act "ARTICLE 3 - SEASONAL OR PART-TIME EMPLOYEES 3.1 The only terms of this Agreement that apply to employees who are not civil servants are those that are set out in this Article. Employment may be terminated by the Employer at any time with one (1) week's notice, or pay in lieu thereof. - 26 Collective Agreement and is not entitled to its rights and benefits. In short, the Grievor's employment status as a public servant ceased by operation of statute . 4 The Charter issue can be simply stated: Are the provisions of Article 3 of the Collective Agreement and ss, 8 and 9 of the Public Service Act inconsistent with the Grievor's rights under Section 15(1) of the Charter? The Charter is designed to recognize and guarantee certain fundamental rights and freedoms. S, 32(l)(b) makes it clear that the Charter applies to protect individuals from legislation and governmental actions which violate fundamental rights. , Arbitrators have differed in approach in the application of the Charter where government is involved, We would agree with Arbitrator Brent's comments in Re Algonquin and Public Service Employees Union (1985), 19 L.A,C, (3d) 81 at pp, 83 and 84 where she states: "In McLeod et V, Egan et al. (1974), 46 D.L,R. (3d) 150, 5 L.A.C, (2d) 336n, [1975] 1 S.C,R. 517 (S.C.C.)t it was determined that an arbitrator, when called upon to interpret a collective agreement, may have to go beyond the collective agreement and determine the meaning and impact of statutes of general application to the particular contract in effect between the parties. In so far as that is done the arbitrator's award is not given 27 - the curial deference which is normally accorded to it.,. We consider that, as in McLeod et al. V. Egan, supra, we must advert to the Code and the Charter in order to determine whether the college has been properly interpreting and administering art. 8.1.2 of the collective agreement in accordance with the law." However, the Board has difficulty accepting Arbitrator does not apply to the Government acting in a private capacity, as when it enters into a Collective Agreement. Arbitrator Brent developes that rationale at P. 93: "We agree that S. 32( 1) (b) , in referring to 'the legislature and government of each province in respect of all matters within the authority of the legislature', is referring to bodies other than the Legislature, as well as to the Legislature itself. In order to determine whether we should define 'government' as always including all agencies of the Crown in right of Ontario as the union has argued, it is necessary to determine what the words respect of all matters within the authority of the legislature' means, That is, does the section mean that all Crown agencies are subject to the Charter even when they act as employers, for example, or only when they are acting in a public capacity? Although there is no authority on point, we consider that the intent of S, 32 is to bind the government when it is acting as government. The section states clearly that 'Charter applies. , .to the.. .government of each province in respect of all matters within the authority of the legislature of each province'. It could have said simply that it applied to the government of each province. Had it done that, then it would have been possible to assert that every time the government acted, whether in a public capacity affecting the rights of the citizens generally or in a 'private' capacity, such as entering into contracts for supplies, it would have been subject to the Charter provisions. By specifying that governments of the - 28 provinces are subject to the Charter 'in respect of all matters within the authority of the legislature of each province', it would appear that the sphere of application is being limited to the activities of government as government, or to the government as enactor or administrator of law rather than as subject of law..." In our opinion the-better approach was taken by Arbitrator Teplitsky in OPSEU V. St. Lawrence College (1986), 24 L.A.C. (3d) 144 at pp. 146, 147, 148 and 150: "Mr. Gray submitted that the Charter does not apply to the community colleges. In this respect, he referred me to a decision of Arbitrator Brent in Re Algonquin College and OPSEU, L.A.C. 81. Arbitrator Brent's decision fully supports this submission. Regretfully, I also- find myself on this issue in the position of disagreeing with another respected arbitrator.. . . Arbitrator Brent concluded that although the College was admittedly a Crown agency, Sec. 32 applied to the Government in its role as Government not to its role as employer. In my opinion that distinction begs the issue framed by Sec. 32. The Government or the Legislature may act simultaneously as the government or the Legislature and as employer.. . As I have indicated, if the Act had specifically provided for mandatory retirement the Charter would obviously apply. It must surely also apply to a policy which is imposed pursuant to and by virtue of the powers granted by the Act. In this case, the mandatory retirement policy was instituted by the board of governors. The board of governors is a creature of the Act. derives its powers from the Act... It would be startling if the applicability of the Charter turned on whether the Legislature specifcally imposed a policy in a Statute, or the same was imposed by a regulation made pursuant to a Statute, or the policy was imposed by executive order, or as is this case, the policy is imposed by a decision of a statutory body (the board of governors) to whom the power has been delegated pursuant to the Statute. In each instance, it is the Legislature or the government which is speaking and acting either directly or through one of its own creations in a manner within - 29 the authority of the Legislature." The Teplitsky approach appears to be consistent with the rationale of Mr. Justice white of the Ontario Supreme Court in Re Lavigne and OPSEU (1986), 29 D.L.R. (4th) 321. Mr. Justice White makes the following comments at P.- 352: "...I conclude that it is the purpose of the Charter to permit review of situations where a governmental actor acts in such a way that the effect of its action, whether such action be of a legislative or administrative nature, potentially infringes a value protected by the Charter." Further, at P. 354 he states: "An argument raised by the respondents in relation to the applicability of the Charter to the Collective Agreement was of an Agreement such as that challenged on this application is an activity engaged in by every commercial employer which must deal with a union; 32 of the Charter requires an act of government qua government. Ms. Bowlby, in her argument, suggested that a collective agreement was analogous to a contract for the supply of paper clips and therefore could not be considered an act of government qua government. I do not see an analogy, applied arts and technology is not a governmental 'foray into commercial activity' , to borrow the language of Professor Swinton. is a ically funded and governmentally controlled educational institution. A contract which establishes the terms and conditions of the employment of academic staff relates to the quality of education provided at these institutions. The purpose of these colleges is to educate students; teachers are essential to achieve that purpose, in a sense that suppliers of paper clips are not. The Minister has a public duty in this situation to try to maintain peaceful labour relations, In my opinion the Province of Ontario owes a duty to the public to provide adequate and effective The administration of a college of A community college - 30 educational facilities and teaching staff. In fulfillins these obligations, it must comply with the Charter of Riqhts, whether it fulfills these oblisations directly, as by ministerial act, or through its delegate, the Council of Regents Court of competent jurisdiction" within the meaning of S. 24(1) of the Charter. In the instant grievance, the Board, we think, has both the authority and the duty under S. 52(1) of the Charter to refuse to apply Article 3 of the Collective Agreement and S.S. 8 and 9 of the Public Service Act, if the Board is satisfied that the application of those provisions would deprive the Grievor of her rights 'under S. 15(1) of the Charter. application to the Provincial government in both its legislative and In our opinion, the Charter is meant to have general administrative functions. That issue is of some importance. The Board recognizes that the Charter is an Act of general application. In the Board's application of the Charter to a grievance arbitration involving a governmental actor, no curial deference can be accorded by the Courts; the Board must be correct. The principle of supremacy of the Charter is enunciated in S. 52(1): 'General 52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is - 31 - inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." In R. V. Big M Druq Mart (1985), 58 81, the Supreme Court of Canada determined that S. 24(1) of the Charter is not the sole remedial provision for infringements of Charter rights. An applicant is entitled to have recourse to a remedy by way of S. 52 of the Charter. Chief Justice Dickson stated that proposition at P. 95: "Section 24(1) sets out a remedy for individuals corporations) whose rights under the Charter have been infringed. It is not, however, recourse in the face of unconstitutional leg islation. Where, as here, the challenge is based on the unconstitutionality of the legislation, recourse to S, 24 is unnecessary.. . (whether real persons or artificial ones such as Section 52 sets out the fundamental principle of constitutional law that the Charter is supreme. The undoubted corollary to be drawn from this principle is that no one can be convicted of an offence under an unconstitutional law.. In the same case at P. 117, the Chief Justice did not restrict the jurisdiction bestowed by S. 52 of the Charter to Courts, but explicitly extended that jurisdiction to tribunals. At p. 117, Chief Justice Dickson stated: "If a Court or tribunal finds any statute to be inconsistent with the constitution, the overriding effect of the Charter S. 52(1), is to give the Court not only the power, but the duty, to regard the inconsistent statute, to the extent of the inconsistency, as being no longer "of force or effect." (Emphasis Added) The Supreme Court of Canada has determined that the word "law" as contained in S. 52 must be broadly interpreted. In Operation - 32 - Dismantle V. The Queen [1985], 1 S.C.R. 441, Chief Justice Dickson stated at P. 459: "...Nothing in these reasons should be taken as the adoption of the view that the reference to 'laws' in S. 52 of the Charter is confined to statutes, regulations and the common law. that if the supremacy of the Constitution expressed in S. 52 is to be meaningful, then all acts taken pursuant to powers granted by law will fall within It may well be S. 52." The Board is satisfied that it has the authority and the ,," obligation to consider a Charter argument as it pertains to the facts of a particular grievance. but a first step to the Courts. We recognize, of couke, that the Board is In the instant matter, the Board does not find that the Employer's impuned actions in failing to renew the Grievor's contract of employment violates S, 15(1) of the Charter. The Grievor was at all times a public servant governed by the provisions of Article 3 of the Collective Agreement. As a public servant, the Grievor has the same rights as any employee under the Crown Employees Collective Bargaining Act - namely, the right to grieve a dismissal under S. 18(2) of that Act. The fact remains that the Grievor's termination of employment simply cannot be characterized as a dismissal, In a determination as to whether the Grievor has been discriminated against within the meaning of S. 15 of the Charter, the comparison must be made between persons who are similarly rt - 33 - circumstanced. A public servant and a civil servant do not share the same employment status and therefore cannot be said to be similarly situated. The concept of "similarly situated" is discussed at some length by Morden J.A. in Re-McDonald and The Queen (1985), 51 O.R. (2d) 745 at pp. 763-4, 21 D.L.R. (4th) 397 at pp. 415-6, 21 C.C.C. (3d) 330. Ontario Chief Justice Howland and Robins J.A. discussed the general effect of S. 15(1) in Reference re an Act to Amend the \ Education Act (1986), 53 O.R. (2d) 513 at pp. 554-5 as follows: "In our view, S. 15(1) read as a whole constitutes a compendious expression of a positive right to equality in both the substance and the administration of the law. It is an all-encompassing right governing all legislative action. Like the ideals of 'equal justice' and 'equal access to the law', the right to equal protection and equal benefit of the law now enshrined in the Charter rests on the moral and ethical principle fundamental to a truly free and democratic society that all persons should be treated by the law on a footing of equality with equal concern and equal respect. This is not to suggest that S. 15( 1 ) requires that every person in every instance be treated in precisely the same manner. There is no infringement of the section unless the unequal treatment is discriminatory. Most laws provide for distinctions and prescribe different results based on those distinctions. Indeed, a State could not function without classifying its citizens for various purposes and treating some differently from others. As Mr. Justice Stewart pointed out in his discussion of the equal protection clause of the U.S. Fourteenth Amendment in San Antonio School District vs. Rodriquez (1973), 411 U.S. 1 at P. 60: 'There is hardly a law on the books that does not affect some people differently from others. - 34 Similarly, although spoken in a different context, Chief Justice Dickson said at 347 S.C.R., 362 D.L.R. of Big M Drug Mart Ltd., [infra] 'the interests of true equality may well require differentiation in treatment.' This Court in Re McDonald and The Queen (1985) , 51 O.R. (2d) 745 at 765, 21 (4th) 397 at 417, 21 C.C.C. (3d) 330, speaking through Morden accepted that t can be said, in broad terms, that the purpose of S. 15 is to require those who are similarly situated be treated similarly' ." In our opinion on the facts before us, there is no breach of S. 15 of the Charter in the application of Art. 3 of the Collective Agreement and ss. 8 and 9 of the Public Service Act. i In the event that we are wrong and that the Employer's actions have indeed violated S. 15( 1 ) of the Charter, we are not satisfied that the Employer justified the applicability of S. 1 of the Charter on the criteria enunciated by Chief Justice Dickson in R. V. Oakes, 53 O.R. (2d) 24 C.C.C. (3d) For all of the above reasons, this Grievance is dismissed. DATED at Brantford, Ontario, this 24th day of February , A.D., 1987. R. L. Verity, Q.C. - Vice-Chairman "I dissent" (see attached) I. J. Thomson Member I. --- .J. Cowan - Member I am not able to agree with the decision of the majority. It was agreed by the parties that the grievor was an employee governed by the Crown Employees Collective Bargaining Act. She was not excluded by any of the categories in It was also agreed that she performed clerical duties similar to duties performed by civil servants in the classified service Clerical Stenographer 2 class standard. There was nothing in the nature of her hours of work or in the work itself which prevented her from being employed on the same basis as employees in the Clerical Stenographer 2 class. In normal circumstances the Ministry could not have terminated the grievor without just cause. However, instead of treating her like other employees they gave her an individual contract of six months duration and then renewed it fourteen times until March lSth, 1986 when she was terminated by not her contract as they had done for the past seven years. If they hadn't gone this route they could not have terminated her employment without just cause. They would have had to treat her in the same way as other employees doing Clerical Stenographer work and she would have been able to have her termination reviewed by this Board. However, because she was employed under 14 individual contracts and for no other reason, she was terminated merely by the device of not renewing her contract. I don't think anyone could disagree that this is a very unfair result. It is true that public servants fall into two categories classified and unclass- ified. The unclassified service is defined by the regulations under the Public Service Act. When the grievors individual contracts were entered into the regulation stated: the hllmvinz 1. Group 1. of employees who are employed under contracts in which the wt out and are employed, kind. -2- for twenty-four or during a or W or I under educational ppm. 2. Group 2, consisting of employees employed on a project of or kind that does not the employees to be employed on a full-time. year round (2) person rho is in the service tk time this into force. shall. k to a vacant position in the (3) So person who occupies a position in the shall k employed in the unclassified except with the approval of Commission: with emphasis It is the Unions argument that the legislation only permits individual contracts for employees falling within group 1. Clearly the grievor does not fall within this group. She has worked-steadily for some seven years performing clearical duties similar to duties performed by civil servants in the classified service within the Clerical Stenographer 2 class standard. Where the employee does not fall within the Regulation and therefore does not, in substance, fall into the unclassified service the Government can not artificially place her there by using the individual contact. Neither the Public Service Act the Crown Employees Collective Bargaining Act authorizes or contemplates the use of individual contracts. If the grievor does not fall under group 1 or group 2 of the Regulation she can not be in the unclassified service. I would have decided that the issuing of individual contracts of employment to the grievor cannot be used to deprive her of her rights under section of the Crown Employees Collective Bargaining Act and the collective agreement, to grieve her dismissal; a right she would have but for the issuance of individual contracts of employ- .ment * The Unions other argument as to the application of the Charter is not for me to write about at any length. However, I do agree with Mr. Ryder's arguments that the grievor was subject to unequal treatment compared with employees doing similar work but who had the good fortune to be in the Classified Service. Classified employees cannot have their employment terminated without just cause and without the right to take their case to arbitration. Why is the grievor being treated differently? No reason was given why some persons doing Clerical Stenographer Class 2 duties can not be terminated without just cause and without L -3- the right to grieve the termination to this Board and why a grievor who may have worked in a job longer does not get the same protection. The only difference between the grievor and the classified employees is in the manner in which they obtain employment. One is hired and after serving a probationary period if she is satisfactory is usually appointed to the classified staff. The grievor works for seven years and must have done satisfactory work to have been reappointed fourteen times. Surely the difference in their hiring is not enough to justify the inferior terms of employment. Surely the grievor and her fellow workers who have the good fortune to be in the "classified service" are similarly situated in terms of their employment, the consequence of loss of their employment and their claims for job security. The fact that the employer was not able to justify the treatment must show that the grievor is "similarly situated" to her fellow employees who performed similar duties to her. I believe the Charter is designed to prevent unfairness and inequality of a kind presented by this grievance. I would have allowed the grievance.