Canada ( Attorney General ) v. Marinos
T-1117-97
Richard J.
9/4/98
12 pp.
Application for judicial review of adjudicator, member of PSSRB, decision accepting jurisdiction to hear grievance referred to adjudication by respondent under PSSRA, s. 92-Application based on ground adjudicator erred in law in determining respondent Marinos employee for purpose of PSSRA, and adjudicator exceeded jurisdiction by ordering reference to adjudication resume and be heard on merits-Individual respondent employed as correctional officer at Cowansville, Quebec-Appointed for three consecutive 90-day periods pursuant to PSEA, s. 21.2-Each offer of employment included term appointment not subject to provisions of PSEA (not qualified for internal competitions and not entitled to file grievance during period of employment)-As respondent worked average of 18 days per month during continuous period of more than six months, adjudicator found respondent not casual employee-Services required on regular basis-Respondent's employment terminated for disciplinary reasons-Termination grieved-Issues standard of review to be applied to review of adjudicator's determination and whether adjudicator erred in concluding respondent employee-Application dismissed-Adjudicator asked herself proper question: whether respondent person employed on casual basis-No legal significance attached to statement in offer of employment she would not be entitled to file grievance-Grievances, as opposed to appeals, dealt with under PSSRA-Respondent certainly person employed in Public Service-Whether she was "person employed on casual or temporary basis" question within jurisdiction of adjudicator-Criteria developed and applied by labour relations boards to assess whether persons casual well established-Essential basis of employer's argument respondent casual as appointed pursuant to PSEA, s. 21.2-Nothing in scheme of Public Service employment legislation which would lead to conclusion that, having been appointed pursuant to PSEA, s. 21.2, person automatically excluded under PSSRA-If Parliament had intended that employees would be excluded automatically when appointed under PSEA, s. 21.2. it could have easily done so by identifying same limitation in PSSRA or by incorporating PSEA, s. 21.2-Main purpose of s. 21.2 to place specific limitations on duration of such appointments and to exclude s. 21.2 appointments from full scope of PSEA protections as specified in s. 21.2(3)-PSSRA approach different-Not so much concerned with legal basis of employment but, rather, with type of employee who may be subject to collective bargaining in Federal Public Service-While s. 21.2 provides specific time limitations on casual employment, it does not address substantive nature of being employed on casual basis within meaning of PSSRA-Adjudicator had jurisdiction to determine question before her-Decision not patently unreasonable-Decision open to adjudicator to make, in circumstances, and reasonable-Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 92 (as am. by S.C. 1992, c. 43, s. 68)-Public Service Employment Act, R.S.C., 1985, c. P-33, s. 21.2 (as enacted by S.C. 1992, c. 54, s. 16).