Estwick et al. v. Canada (Attorney General), 2007 FC 894

• Judge: Heneghan, J.
• Court: Federal Court (Canada)
• Case Date: February 07, 2007
• Jurisdiction: Canada (Federal)
• Citations: 2007 FC 894;(2007), 319 F.T.R. 290 (FC)

Estwick v. Can. (A.G.) (2007), 319 F.T.R. 290 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. SE.009

Tanya Estwick and Amanda Quintilio (applicants) v. Attorney General of Canada (respondents)

(T-424-06; 2007 FC 894)

Indexed As: Estwick et al. v. Canada (Attorney General)

Federal Court

Heneghan, J.

September 7, 2007.

Summary:

The applicants filed a joint grievance regarding the termination of their work as facilitators of a sex offender rehabilitation program at a federal penitentiary. The applicants were advised that their grievances could not be processed because their services were rendered under a personal service contract and they were not deemed to be employees of the Correctional Service of Canada under the Public Service Employment Act. The applicants applied for judicial review of that decision.

The Federal Court, in a decision reported at 257 F.T.R. 84, held that the Public Service Staff Relations Act precluded an application for judicial review at this stage. The court dismissed the application as premature. As a result, the Correctional Service of Canada and the union of Solicitor General employees (a component of the bargaining agent) agreed to refer the grievance to adjudication. The Public Service Staff Relations Board rejected the grievance on the grounds that the applicants were not employees within the meaning of s. 92 of the Public Service Staff Relations Act. The applicants applied for judicial review.

The Federal Court dismissed the application.

Labour Law - Topic 9023

Public service labour relations - Definitions - Employee - In 2001, the applicants began working at a federal penitentiary pursuant to personal service contracts - In February 2002, the Canada Revenue Agency (CRA) advised them that they were federal government employees, not contractors - Thereafter, the Correctional Service of Canada (CSC) terminated the contracts - The Public Service Staff Relations Board rejected the applicants' joint grievance on the grounds that they were not employees under s. 92 of the Public Service Employment Act (PSEA) and, accordingly, the Board lacked jurisdiction - The Federal Court, applying the standard of patent unreasonableness, dismissed the applicants' judicial review application - The applicants appeared to be arguing that because their employment was accompanied by certain indicia of hiring, they had in fact been appointed - This was the type of "de facto public servant" that the Supreme Court of Canada had held could not exist - There was no evidence that the applicants' positions were created and defined in accordance with the PSEA, the relevant jurisprudence, and the degree of expected formality - Further, the warden did not actually or effectively appoint the applicants pursuant to his delegated staffing authority - There was no evidence that a formal instrument of appointment was issued under s. 22 - The applicants' arguments ran contrary to Parliament's intention to restrict the public service to a very particular category of specifically appointed persons - The CRA's ruling was not, and did not purport to be, determinative of the employment status under the PSEA - The ruling did not replace the formal appointment process required by the PSEA - The Board correctly determined that it lacked jurisdiction - See paragraphs 65 to 95.

Labour Law - Topic 9025

Public service labour relations - Definitions - Public servant - [See Labour Law - Topic 9023 ].

Labour Law - Topic 9053

Public service labour relations - The board - Jurisdiction - General - [See Labour Law - Topic 9023 ].

Labour Law - Topic 9103

Public service labour relations - Grievances - Employee defined - Persons entitled to grieve - [See Labour Law - Topic 9023 ].

Labour Law - Topic 9128

Public service labour relations - Adjudication of grievances - Jurisdiction of adjudicators or boards - [See Labour Law - Topic 9023 ].

Labour Law - Topic 9323

Public service labour relations - Judicial review - Decisions of board or commission - Standard of review - [See Labour Law - Topic 9023 ].

Cases Noticed:

Canada (Procureur général) v. Alliance de la Fonction publique du Canada, [1991] 1 S.C.R. 614; 123 N.R. 161, refd to. [para. 29].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 29].

Canada (Attorney General) v. Greaves, McNeill, Morris and Waddy, [1982] 1 F.C. 806; 40 N.R. 429 (F.C.A.), refd to. [para 30].

Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489; 81 N.R. 61, refd to. [para. 31].

Doré v. Canada, [1987] 2 S.C.R. 503; 81 N.R. 77, refd to. [para. 32].

Bambrough v. Public Service Commission Appeal Board (Can.), [1976] 2 F.C. 109; 12 N.R. 553 (F.C.A.), refd to. [para. 33].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12, refd to. [para. 34].

Public Service Alliance of Canada v. Treasury Board (Indian and Northern Affairs Canada), [2002] 4 C.N.L.R. 172, refd to. [para. 34].

Canada (Attorney General) v. Marinos, [2004] 4 F.C. 98; 254 N.R. 152 (F.C.A.), refd to. [para. 34].

Oriji v. Canada (Attorney General), [2003] 2 F.C. 423; 228 F.T.R. 73 (T.D.), refd to. [para. 40].

R. v. Panagopoulos, [1990] F.C.J. No. 234 (T.D.), refd to. [para. 51].

Farrell v. Canada (2002), 225 F.T.R. 239 (T.D.), refd to. [para. 54].

Professional Association of Foreign Service Officers v. Canada (Attorney General) (2003), 303 N.R. 258; 2003 FCA 162, refd to. [para. 54].

Rostrust Investment Inc. v. Canadian Union of Public Employees, [2005] P.S.S.R.B. 1, refd to. [para. 56].

Syndicat général du cinéma et de la télévision v. National Film Board (1992), 141 N.R. 213 (F.C.A.), refd to. [para. 63].

Canada (Attorney General) v. Gaboriault et al., [1992] 3 F.C. 566; 146 N.R. 388 (F.C.A.), refd to. [para. 64].

Barry v. Canada (Treasury Board) (1997), 221 N.R. 237 (F.C.A.), refd to. [para. 80].

Counsel:

Paul Champ, for the applicant;

Richard E. Fader, for the respondent.

Solicitors of Record:

Raven Cameron, Ballantyne & Yazbeck LLP, Ottawa, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Ottawa, Ontario, on February 7, 2007, before Heneghan, J., of the Federal Court, who delivered the following reasons for order on September 7, 2007.