A-853-76
Syndicat Général du Cinéma et de la Télévision
(S.G.C.T.) (Applicant)
v.
The Queen as represented by the National Film
Board (Employer)
and
Public Service Staff Relations Board (The Board)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, April 21; Ottawa, May 27, 1977.
Judicial review — Labour relations — Application for
certification to represent proposed bargaining unit — Dis
missed by Board on ground that even if employees, they were
not employees within meaning of Public Service Staff Rela
tions Act — Whether error in law — Public Service Staff
Relations Act, R.S.C. 1970, c. P-35, s. 2 — National Film
Act, R.S.C. 1970, c. N-7, ss. 10(1)(d), 13, 14.
The applicant sought certification to represent "freelancers"
wiirking under personal contracts with the National Film
Board. The Public Service Staff Relations Board dismissed the
application on the basis that even if the persons in the proposed
bargaining unit were employees, they would not be employees
within the meaning of the Public Service Staff Relations Act
because the contract for personal services did not describe the
positions occupied by the freelancers but only the nature of the
services to be performed. The applicant contends that the
Board erred in law in that it did not first consider if the persons
involved were employees or contractors, and then, if employees,
whether they could be deemed to hold positions in the Public
Service, even though not appointed pursuant to section 13 or 14
of the National Film Act.
Held, the application is allowed. There is no reason to
conclude that the positions referred to in section 14 are not
positions in the Public Service within the meaning of the
definition of "Public Service" in the Public Service Staff
Relations Act, which makes no distinction between continuing
positions and other positions. A person who must be considered
to be an employee of the Board on the general tests for
distinguishing between an employee and an independent con
tractor must be deemed to occupy a position within the mean
ing of section 14. There is no special formality required for
employing a person in a position other than a continuing
position. There cannot be employees of the Board who do not
occupy positions of some kind. The Public Service Staff Rela
tions Board should have determined whether the persons for
whom certification is sought are employees rather than
independent contractors although their services were engaged
under a form of contract purporting to have been made pursu-
ant to the authority conferred by paragraph 10(1)(d) of the
National Film Act. In failing to do so the Board erred in law
and refused to exercise its jurisdiction.
Brown v. Public Service Commission [1975] F.C. 345,
applied.
APPLICATION for judicial review.
COUNSEL:
M. Freiheit for applicant.
W. L. Nisbet for employer.
No one appearing for the Board.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for applicant.
W. L. Nisbet, Ottawa, for employer.
Public Service Staff Relations Board,
Ottawa, for the Board.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is an application under section
28 of the Federal Court Act to review and set
aside a decision of the Public Service Staff Rela
tions Board dismissing an application for certifica
tion on the ground that the persons in the proposed
bargaining unit are not employees within the
meaning of the Public Service Staff Relations Act,
R.S.C. 1970, c. P-35.
The proposed bargaining unit is described in the
application for certification as follows:
Persons employed by the NATIONAL FILM BOARD, under con
tracts for Personal Services, for periods of six (6) months or
more and/or persons employed by the NATIONAL FILM BOARD
required to work more than one-third ('/3) of the normal period
for persons doing similar work, in the Technical category.
The relevant statutory provisions are the defini
tions of "employee" and "Public Service" in sec
tion 2 of the Public Service Staff Relations Act
and paragraph 10(1)(d) and sections 13 and 14 of
the National Film Act, R.S.C. 1970, c. N-7, which
set out the authority of the National Film Board to
engage personnel as a separate employer in the
Public Service.'
Section 2 of the Public Service Staff Relations
Act defines "employee" and "Public Service" as
follows:
"employee" means a person employed in the Public Service,
other than
(a) a person appointed by the Governor in Council under an
Act of Parliament to a statutory position described in that
Act,
(b) a person locally engaged outside Canada,
(c) a person whose compensation for the performance of the
regular duties of his position or office consists of fees of
office, or is related to the revenue of the office in which he is
employed,
(d) a person not ordinarily required to work more than
one-third of the normal period for persons doing similar
work,
(e) a person who is a member or special constable of the
Royal Canadian Mounted Police or who is employed by that
Force under terms and conditions substantially the same as
those of a member thereof,
(J) a person employed on a casual or temporary basis, unless
he has been so employed for a period of six months or more,
(g) a person employed by or under the Board, or
(h) a- person employed in a managerial or confidential
capacity,
and for the purposes of this definition a person does not cease
to be employed in the Public Service by reason only of his
ceasing to work as a result of a strike or by reason only of his
discharge contrary to this or any other Act of Parliament;
"Public Service" means the several positions in or under any
department or other portion of the public service of Canada
specified from time to time in Schedule I;
Paragraph 10(1)(d) and sections 13 and 14 of
the National Film Act read as follows:
10. (1) Subject to the direction and control of the Minister,
the Board may, for the purposes for which it is established,
(d) enter into contracts in the name of the Board, including
contracts for personal services;
' Part I of Schedule I of the Public Service Staff Relations
Act lists the "Departments and other portions of the public
service of Canada in respect of which Her Majesty as repre
sented by the Treasury Board is the employer" and Part II lists
those "Portions of the public service of Canada that are sepa
rate employers". The National Film Board is included among
the latter.
13. (1) With the approval of the Treasury Board obtained
on the recommendation of the Minister, the Board may formu
late a plan of organization for the establishment and classifica
tion of the continuing positions necessary for the proper func
tioning of the Board and the establishment of rates of
compensation for each class of position, having regard to the
rates of compensation and conditions of employment for com
parable positions in other branches of the public service of
Canada and outside the public service.
(2) With the approval of the Treasury Board obtained on the
recommendation of the Minister, the Board may amend or vary
a plan approved under subsection (1).
(3) Subject to the plan of organization approved under this
section and subject to subsection (4), the Board may appoint
persons for a term or during pleasure to fill the positions
established by the plan, prescribe their conditions of employ
ment and provide for their promotion, salary and salary
increases, but the provisions of the Public Service Employment
Act relating to political partisanship and, where applicable, the
condition of employment relating to payment of gratuity on
death pursuant to the Financial Administration Act apply to
the persons appointed under this section.
(4) The appointment by the Board of a person to a continu
ing position at a salary exceeding five thousand dollars is not
effective until approved by the Governor in Council.
(5) Each officer or employee employed by the Board under
this section shall, before entering upon his duties, take an oath
of office and secrecy in the form set out in the schedule.
(6) Where any person who
(a) immediately prior to the 14th day of October 1950
(i) was employed on the staff of the Government Motion
Picture Bureau, and
(ii) was a contributor under the Civil Service Superannu-
ation Act, and
(b) immediately after the 14th day of October 1950 was
appointed or employed under this Act,
is retired from his position under this Act, he may be assigned
to a position in the Public Service for which he is qualified.
14. The Board may employ such persons in positions other
than in continuing positions in the plan approved under section
13, as may be required from time to time for the operations of
the Board and may determine their remuneration and condi
tions of employment.
The issue as to whether the persons for whom
certification is sought are employees within the
meaning of the Public Service Staff Relations Act
was determined by the Public Service Staff Rela
tions Board upon the basis of an agreed statement
of facts which reads as follows:
1. The persons for whom certification is sought by the Appli
cant are persons who may be engaged by the Employer under
the authority of paragraph 10(1)(d) of the National Film Act.
2. The persons for whom certification is sought do not occupy
"positions" and their duties are specified in the contracts for
personal services applicable to them. The duties so specified are
usually the same as those performed by employees of the
Employer appointed under the authority of section 13 or 14 of
the National Film Act and who are included in the Technical
Category bargaining unit. In a few cases, the duties so specified
differ to some extent from the duties performed by employees
appointed under the authority of section 13 or 14 of the
National Film Act and who are included in the Technical
Category bargaining unit.
3. In most cases the hours of work of those persons for whom
certification is sought by the Applicant are the same as those of
employees appointed under the authority of section 13 or 14 of
the National Film Act and who are included in the Technical
Category bargaining unit, and in most cases those persons for
whom certification is sought respond to the same supervisors,
are subject to the same surveillance, work in the same location
and have the same physical working conditions, using the same
equipment for the execution of their work. In a few cases some
of these similarities do not exist.
4. The remuneration paid to the persons for whom certification
is sought is specified in the contract for personal services
applicable to those persons and they are not usually entitled to
any of the fringe benefits applicable to employees appointed
under the authority of section 13 and 14 of the National Film
Act. In some cases they are entitled to some of the fringe
benefits, i.e. vacation pay, designated holidays, or holidays
recognized by the Employer and overtime pay.
5. None of the persons for whom certification is sought have
taken or have been required to take an oath of office and
secrecy as prescribed in subsection 13(5) of the National Film
Act.
6. None of the persons for whom certification is sought have
been required to contribute to the Superannuation Fund under
the Public Service Superannuation Act.
7. A list of all persons engaged under contract pursuant to
paragraph 10(1)(d) of the National Film Act is given to the
Applicant every three months showing the persons so engaged
during the previous three months. The last such list was
provided to the Applicant on or about May 4, 1976.
8. The standard form of contract for personal services that is
used by the Employer for engaging persons under the authority
of paragraph 10(1)(d) of the National Film Act is attached as
Appendix 1. This form is completed by the addition of a
general description of the services to be performed and a
specification of particular terms and conditions of the contract.
At the hearing before the Board the applicant
argued that the persons in the bargaining unit
were employees rather than independent contrac
tors and should be considered to be employees
within the meaning of the Public Service Staff
Relations Act although the contracts for personal
services under which they were engaged did not
expressly designate a "position" to be occupied by
them. The Board concluded that the persons for
whom certification is sought are not employees
within the meaning of the Public Service Staff
Relations Act because they were engaged under
contracts for personal services pursuant to para
graph 10(1)(d) of the National Film Act and do
not occupy positions in the Public Service within
the meaning of the definition of "Public Service"
in section 2 of the Public Service Staff Relations
Act and of sections 13 and 14 of the National Film
Act. The Board's conclusion to this effect is re
flected in the following passages from its decision:
24. Clearly, persons employed pursuant to subsection 13(3)
and section 14 are persons employed in positions in or under the
National Film Board, i.e., the Public Service. Such persons
accordingly would be employees for the purpose of the Public
Service Staff Relations Act.
25. Be that as it may, the parties in paragraph 1 of the jointly
filed statement of facts have agreed that the persons for whom
certification is being sought by the Applicant are persons who
may be engaged by the Employer under the authority of
paragraph 10(1)(d) of the National Film Act. Indeed, accord
ing to the evidence, the persons with whom we are here
concerned, in fact, were under contracts for personal service at
the time of the making of the application. The parties also
agreed in paragraph 2 of the jointly filed statement that the
persons for whom certification is being sought do not occupy
"positions" in or under the National Film Board. This being
the case, pursuant to the definition of "Public Service" referred
to above, the persons concerned are not "employees" for pur
poses of the Public Service Staff Relations Act.
26. We would point out that other considerations, including at
least some of those advanced by the Applicant, might be
applicable under legislation governing labour-management
relations in other jurisdictions in Canada. This Board, however,
is bound by the statutory provisions referred to above upon
which we have based our finding as to the "status" of the
persons for whom the Applicant is seeking certification.
The applicant contends that the Board erred in
law, and indeed failed to exercise its jurisdiction,
by failing to determine, first of all, whether the
persons in the proposed bargaining unit were
independent contractors or employees, and if the
latter, whether they should be deemed to be hold
ing positions in the Public Service although not
appointed or employed pursuant to section 13 or
14 of the National Film Act.
The Board appears to have proceeded on the
assumption that even if the persons in the proposed
bargaining unit were employees rather than
independent contractors they could not be
employees within the meaning of the Public Ser
vice Staff Relations Act because they were not
expressly appointed to a designated position in the
Public Service—in other words, because the con
tract for personal services under which they were
engaged did not describe the position to be
occupied by them but merely the nature of the
services to be performed.
The issue turns on the meaning and significance
to be attached to the word "position" in the defini
tion of the Public Service and in sections 13 and 14
of the National Film Act.
In Brown v. Public Service Commission 2 , Jack-
ett C.J., speaking in the context of the Public
Service Employment Act, R.S.C. 1970, c. P-32,
expressed the following opinion as to what is to be
understood by a "position" in the Public Service:
•
Technically, a "position", as I understand the term, is the
legal authority to employ a person in the Public Service, an
"establishment" is an enumeration of the positions authorized
in some department or branch of the Public Service, and
"classification" may be either a description of classes of posi
tions by reference to convenient class or other titles or the
assigning of a particular position to a place in such a
classification.
While the Public Service Employment Act,
which provides for appointment by the Public Ser
vice Commission to positions in the Public Service,
does not apply to the National Film Board, which
is a separate employer in the Public Service with
its own power to appoint or employ, what is true of
the general significance of the word "position"
under that Act applies equally to the word as used
in the National Film Act since both Acts are
referring to a status within the Public Service and
they adopt the same definition of the Public
Service 3 .
2 [1975] F.C. 345 at p. 348, note 1.
3 Section 2 of the Public Service Employment Act defines
"Public Service" as follows:
"Public Service" has the same meaning as in the Public
Service Staff Relations Act.
Sections 13 and 14 of the National Film Act
refer to two classes of position: "continuing posi
tions" provided for in a plan of organization
approved by the Treasury Board, pursuant to sub
section 13(1), and "positions other than ... con
tinuing positions in the plan approved under sec
tion 13". The continuing positions provided for by
section 13 would appear to constitute the perma
nent establishment of the National Film Board.
Such positions must form part of an approved plan
of organization before the Board may appoint
persons to them, pursuant to subsection 13(3), and
subsection 13(4) provides that if the salary at
which a person is appointed to a continuing posi
tion exceeds $5,000 the appointment must receive
the approval of the Governor in Council. Subsec
tion 13(5) provides that a person appointed to a
continuing position in the National Film Board
must take an oath of office and secrecy in a
specified form. A person who might otherwise be
in the relationship of an employee to the Board
could not, in my opinion, be considered to occupy a
continuing position within the meaning of section
13 unless the requirements of section 13 had been
met.
Section 14, however, confers on the Board a
general authority to employ such other persons as
it may require from time to time in positions other
than continuing positions upon such terms and
conditions as it may determine. I can see no reason
for concluding that the positions referred to in
section 14 are not positions in the Public Service
within the meaning of the definition of "Public
Service" in the Public Service Staff Relations Act,
which makes no distinction between continuing
positions and other positions. A person who must
be considered to be an employee of the Board on
the general tests for distinguishing between an
employee and an independent contractor must be
deemed, in my opinion, to occupy a position within
the meaning of section 14. There is no special
formality required for employing a person in a
position other than a continuing position.
Undoubtedly the Board has the authority under
paragraph 10(1)(d) of the National Film Act to
enter into contracts for personal services with
independent contractors, or "freelancers" 4 as they
are apparently called, but notwithstanding the
form which such an engagement takes it may be
open in a particular case to show on all the circum
stances that the relationship is in fact one of
employment. In such a case one would have to
conclude that the employee occupies a position
within the meaning of section 14. There cannot, in
my opinion, be employees of the Board who do not
occupy positions of some kind. As the Chief Jus
tice has suggested, the word "position" may be
regarded as an authority to employ; it may also be
regarded as simply a synonym of occupation or
employment—a general reference to the functions
performed by an employee.
There remains to be considered what signifi
cance should be attached for purposes of this case
to the admission in paragraph 2 of the agreed
statement of facts that "The persons for whom
certification is sought do not occupy 'posi-
tions' ...." I think it is a reasonable view of this
admission, in the context of paragraph 2 and of the
agreed statement of facts as a whole, that it is
merely an acknowledgment that the contracts
under which the persons were engaged did not
purport in their terms to make appointments to
specified positions.
I conclude, therefore, that the Public Service
Staff Relations Board should have determined
whether the persons for whom certification is
sought are employees rather than independent con
tractors although their services were engaged
under a form of contract purporting to have been
made pursuant to the authority conferred by para
graph 10(1)(d) of the National Film Act. In fail
ing to do so the Board erred in law and refused to
exercise its jurisdiction.
I would accordingly allow the application, set
aside the decision of the Board and refer the
matter back to the Board for determination on the
4 Article 40 of the collective agreement between the applicant
and the respondent reads as follows:
40.01 The Employer maintains the principle and the practice
of obtaining the services of regular employees and free
lancers. It is agreed that services of freelancers shall not be
obtained to circumvent the provisions of this agreement or
to terminate employment of regular employees.
40.02 The Employer agrees to consult the Syndicat every
three months on the matter of utilization of freelancers.
basis that a person who is found to be an employee
of the National Film Board rather than an
independent contractor, although engaged under a
form of contract for personal services pursuant to
the authority conferred by paragraph 10(1)(d) of
the National Film Act, must be deemed to occupy
a position in the Public Service within the meaning
of the Public Service Staff Relations Act.
* * *
PRATTE J.: I agree.
* * *
HYDE D.J.: I agree.
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.