A-327-82
The Queen for the Treasury Board (Applicant)
V.
France Thibault (Respondent)
and
Public Service Alliance of Canada and Public
Service Staff Relations Board (Mis- en- cause)
Court of Appeal, Pratte, Ryan and Le Dain JJ.—
Ottawa, February 9 and March 14, 1983.
Judicial review — Applications to review — Public Service
— Application to review and set aside Adjudicator's decision
upholding grievance decision that respondent entitled to
retroactive pay increases and increments as though contin
uously employed — Respondent's employment as Public Ser
vice casual employee interrupted for few days — Questions
arose as to whether respondent entitled to retroactive pay
increases provided for by subsequent collective agreement and
as to date of respondent's appointment to position for purpose
of determining pay increment date — Adjudicator upheld
grievance decision that respondent to be treated as if contin
uously employed — Collective agreement provided that "terms
and conditions governing the application of pay ... are not
affected by this Agreement" — Applicant maintained that
collective agreement therefore subject to Retroactive Remu
neration Regulations which deny retroactive pay increases
approved by Governor in Council or Treasury Board to
employees who ceased- to be employed during retroactive
period — Respondent relied on definition of "continuous
employment" in collective agreement and on ss. 1(1)(b) and 3(f)
of Public Service Terms and Conditions of Employment Regu
lations to support contention of continuous employment to
answer second question relating to date of appointment
Application allowed with respect to part of Adjudicator's
decision relating to pay increments, but dismissed with respect
to decision on retroactive pay increases — Retroactive Remu
neration Regulations do not apply to interpretation of collec
tive agreements, but only to pay increases approved by Gover
nor in Council or Treasury Board — Since collective
agreement provision concerning pay increments does not use
expression "continuous employment", definition of expression
not applicable — Respondent appointed to position when
rehired after few days unemployment — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Public Service Staff
Relations Act, R.S.C. 1970, c. P-35, ss. 54, 91 — Public
Service Employment Act, R.S.C. 1970, c. P-32, ss. 24, 25 —
Retroactive Remuneration Regulations, C.R.C., c. 344, ss. 3, 4
— Public Service Terms and Conditions of Employment
Regulations, SOR/67-118, ss. 2(l)(b),(r), 3(f).
COUNSEL:
Pierre Hamel for applicant.
Robert Côté for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Gowling & Henderson, Ottawa, for respond
ent.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: Applicant is requesting that a deci
sion of an Adjudicator upholding a grievance that
respondent had referred to adjudication under sec
tion 91 of the Public Service Staff Relations Act,
R.S.C. 1970, c. P-35, be set aside under section 28
of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10.
At the time of the adjudication respondent was
a casual employee of the Canada Employment and
Immigration Commission. She had begun working
there on May 15, 1979, the date on which she had
been hired for a "specified period" pursuant to
sections 24 and 25 of the Public Service Employ
ment Act, R.S.C. 1970, c. P-32. When it expired
respondent's employment was extended to July 31,
1980. Respondent then remained unemployed for a
few days. On August 6, 1980 she was rehired once
again, however, as a casual employee and for a
specified period. This further employment was
extended when it expired with the result that
respondent was still working for the Canada
Employment and Immigration Commission long
after a new collective agreement was signed, on
October 17, 1980, establishing the work terms and
conditions of employees in the bargaining unit to
which respondent belonged. This agreement pro
vided for pay increases retroactive to November
12, 1979; it also contained clauses respecting "pay
increments" which provided that such increments
were to be paid to employees in respondent's situa
tion fifty-two weeks after they were appointed to a
position in the bargaining unit. In applying these
clauses of the agreement to respondent, the
employer was of the view that she was not entitled
to the retroactive pay increase for the period prior
to August 6, 1980, the date on which she was
rehired after a few days unemployment; it was also
of the view that "the pay increment" to which
respondent was entitled should be calculated as if
she had been appointed to the position she held on
August 6, 1980 and not previously.
Respondent submitted a grievance against this
decision by the employer. She maintained she was
entitled to the retroactive pay increase and to the
pay increment as though she had been employed
continuously since May 15, 1979, without regard
to the fact that she had been without employment
from July 31 to August 6, 1980 and had been
rehired on this latter date. It was this grievance
that was upheld by the decision a quo, which
affirmed that respondent was entitled both to the
retroactive pay increase and to the pay increment
as though she had worked without interruption
since May 15, 1979. Applicant maintained that
both parts of this decision, concerning the retroac
tive increase and the pay increment respectively,
were unfounded.
1. The retroactive pay increase
The clauses of the collective agreement signed
on October 17, 1980 that deal with this matter are
contained in Article 27 and in Appendix "B". The
first two clauses of Article 27 read as follows:
27.01 Except as provided in this Article, the terms and condi
tions governing the application of pay to employees are not
affected by this Agreement.
27.02 An employee is entitled to be paid for services rendered
at:
(a) the pay specified in Appendix "B" for the classification of
the position to which he is appointed ....
Appendix "B" of the agreement contains a list of
the rates of pay payable to the various categories
of employee. Three rates are provided for each
category, the first to take effect on November 12,
1979 and the other two on dates subsequent to the
signing of the agreement.
If we consider only clause 27.02 of the agree
ment, it seems clear that respondent is entitled to
the retroactive pay increase provided for regardless
of the fact that she was not employed from July 31
to August 6, 1980. She is not, of course, entitled to
any pay for the time during which she did not
work, but there is nothing in clause 27.02 to
indicate that the fact she ceased to be employed
for a few days means that she loses the retroactive
pay increase to which she would otherwise be
entitled for the period during which she worked
before ceasing to be employed.
The only argument relied on by counsel for the
applicant in favour of a contrary conclusion is
based on clause 27.01 of the agreement, which he
maintained had the effect of making the payment
of the retroactive pay increases provided for in the
agreement subject to the rules set out in sections 3
and 4 of the Retroactive Remuneration Regula
tions, Regulations made by the Governor in Coun
cil under Appropriation Act No. 5, 1963, S.C.
1963, c. 42 (Schedule B, Vote No. 71a) which can
now be found in chapter 344 of the 1978 Con
solidated Regulations of Canada. These Regula
tions provide that where the Governor in Council
or Treasury Board approves a retroactive pay
increase, an employee who has ceased to be
employed during the retroactive period may not, as
a general rule, receive the increase for the time
during which he was employed before ceasing to
be employed. It follows, according to counsel for
the applicant, that respondent, who was without
employment from July 31 to August 6, 1980, is not
entitled to the retroactive pay increase for the time
during which she worked before August 6, 1980.
This argument would be difficult to refute if
counsel for the applicant were correct in affirming
that the effect of the clauses of the collective
agreement respecting the retroactive pay increase
was governed by the provisions of sections 3 and 4
of the Retroactive Remuneration Regulations.
However, this affirmation seems incorrect to me.
These Regulations provide that the Governor in
Council and Treasury Board may approve retroac
tive pay increases and they specify who, as a
general rule, is to benefit from any increases thus
approved. These Regulations, in my view, apply
only to pay increases that have been approved
pursuant to the Regulations. They do not apply to
increases provided for in a collective agreement
that Treasury Board has entered into pursuant to
its authority under section 54 of the Public Service
Staff Relations Act. In other words, the Regula
tions prescribe the effect of approval of a retroac
tive pay increase by the Governor in Council or
Treasury Board, they do not in any way govern the
interpretation or effect of a collective agreement
providing for such increases. It is true that clause
27.01 of the agreement provides that "the terms
and conditions governing the application of pay to
employees are not affected by this Agreement"
except to the extent that Article 27 provides other
wise. However, the rules or terms and conditions
prescribed by the Retroactive Remuneration
Regulations are not, in my view, "terms and con
ditions governing the application of pay to
employees."
For these reasons I would dismiss the applica
tion to the extent it impugns the first part of the
Adjudicator's decision respecting the retroactive
pay increase.
2. The pay increment
Clause 27.08 of the agreement states how the
period after which employees are entitled to a pay
increment is to be calculated. It reads as follows:
27.08 Subject to clause 27.07, the pay increment date for an
employee, appointed to a position in the bargaining unit on
promotion, demotion or from outside the Public Service after
March 4, 1976, shall be the first Monday following the pay
increment period listed below as calculated from the date of the
promotion, demotion or appointment from outside the Public
Service. Subject to clause 27.07, the pay increment periods
listed below will continue to apply to employees appointed prior
to March 4, 1976.
PAY INCREMENT PERIODS
Level Full-Time Employees
CR-1 26 weeks
CR-2 to CR-7 (inclusive) 52 weeks
It is common ground that, pursuant to this clause,
respondent was entitled to a pay increment on the
first Monday following a fifty-two-week period
from the day on which she was appointed to a
position in the bargaining unit. The only question
to be resolved concerns the date to be regarded, for
purposes of clause 27.08, as the date on which
respondent was so appointed. Is it, as respondent
maintained, May 15, 1979, the date on which she
was first hired to work for the Canada Employ
ment and Immigration Commission, or is it, as
applicant maintained, August 6, 1980, the date on
which she was rehired to work for the Commission
after a few days of unemployment?
Counsel for the respondent recognized, if I
understood him correctly, that in the case of a
person who has been employed in the Public Ser
vice discontinuously, the terms of clause 27.08
must be interpreted as referring in general to the
date on which that person was most recently
appointed to a position in the bargaining unit. He
maintained that this should not be so in the case of
respondent because the latter, despite the fact she
was not employed in the Public Service from
July 31 to August 6, 1980, should nevertheless be
regarded as having been employed continuously
from May 15, 1979, pursuant to the definitions of
"continuous employment" contained in paragraph
2.01(e) of the collective agreement applicable in
the case at bar and in paragraphs 2(1)(b) and 3(f)
of the Public Service Terms and Conditions of
Employment Regulations, SOR/67-118.
Paragraph 2.01(e) of the collective agreement
reads as follows:
2.01 For the purpose of this Agreement:
(e) "continuous employment" has the same meaning as in the
existing rules and regulations of the Employer on the date
of the signing of this Agreement;
Paragraphs 2(1)(b) and 3(f) of the Public Service
Terms and Conditions of Employment Regula
tions read as follows *:
2. (1) In these Regulations,
(b) "continuous employment" means continuous employment
in Schedule A Service;
* [See Personnel Management Manual, Vol. 8, "Compensa-
tion", Appendix A, being TB 665757, issued by the Treasury
Board of Canada on March 2, 1967—Ed.]
3. For the purposes of these Regulations ...
(f) during any relevant period, a person performing duties of a
casual nature, ceases to be employed in Schedule A Ser
vice for any reason other than dismissal, discharge, release
or declaration that he has abandoned his position, and has
again become employed therein after a period of not more
than five working days from the day on which he so ceased
to be employed, his employment in the position held by
him before he so ceased to be employed and in the position
to which he is appointed shall constitute continuous
employment.
The expression "Schedule A Service" is defined
in paragraph 2(1)(r) of the Regulations and it is
common ground that respondent was employed in
such service. It is also common ground that
respondent was a casual employee who lost her
employment on July 31, 1980 and became
employed again on August 6, 1980 after a period
of three working days (August 1, 4 and 5). It
follows that for purposes of the Public Service
Terms and Conditions of Employment Regula
tions, respondent's employment, despite the fact it
was interrupted from July 31 to August 6, 1980, is
deemed to have been continuous. Counsel for the
respondent maintained that it also follows that
respondent's employment is deemed to have been
continuous for purposes of the collective agree
ment since paragraph 2.01(e) of the agreement
provides that "For the purpose of this Agreement"
the expression "continuous employment" has the
same meaning as in the employer's regulations. He
concluded from this that the date on which
respondent was appointed to a position in the
bargaining unit is the date on which she was first
hired, that is, May 15, 1979.
In reply to this argument counsel for the appli
cant stated that paragraph 2.01(e) of the agree
ment merely contained a definition of "continuous
employment" and that although reference should
therefore be made to this paragraph in interpreting
clauses of the agreement in which the expression
"continuous employment" is used, it should not be
relied on in interpreting those which, like clause
27.08, do not use that expression.
I find this reply satisfactory. The issue here is
not whether respondent's employment should be
regarded as continuous; rather we must determine
when she was appointed to the position she occu
pies in the bargaining unit. It seems certain to me
that this appointment was made on August 6,
1980, and I do not see how this fact can be ignored
solely on the ground that for certain purposes
(such as the calculation of paid vacation leave),
respondent's employment before July 31 and after
August 6, 1980 is regarded as continuous
employment.
On this second point it therefore seems to me
that the Adjudicator erred in deciding as he did.
For these reasons I would grant the application,
quash that part of the decision a quo that relates
to the pay increment and refer the matter back to
the Adjudicator so that he may decide it on the
basis that for purposes of clause 27.08, respondent
should be regarded as having been appointed to
her position and as having entered the Public
Service on August 6, 1980.
RYAN J.: I concur.
LE DAIN J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.