A-36-78
Mireille Dansereau (Applicant)
v.
National Film Board and Pierre-André Lachapelle
(Respondents)
Court of Appeal, Pratte, Ryan and Le Dain JJ.—
Montreal, April 27; Ottawa, May 12, 1978.
Judicial review — Labour relations — Refusal of National
Film Board to renew freelancer's contract — Grievance
instituted under Public Service Staff Relations Act — Grievor
alleged refusal in contravention of collective agreement —
Grievor claimed entitlement to remain in Board's employ as
work existed and other freelancers were employed in work she
could have done — Grievance dismissed by Adjudicator —
Whether or not decision should be set aside — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
M. Freiheit for applicant.
Pierre Delage for National Film Board.
No representative for Pierre-André La -
chapelle.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for applicant.
Deputy Attorney General of Canada for Na
tional Film Board.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: This section 28 application is direct
ed against a decision by an Adjudicator acting
under the Public Service Staff Relations Act,
R.S.C. 1970, c. P-35, dismissing the grievance
filed by applicant as a result of the National Film
Board's refusal to renew her contract of employ
ment.
Applicant had been hired by the National Film
Board for a one-year term which was to end on
January 18, 1977, and which was extended by
mutual agreement until February 28, 1977. It is
agreed that, during her employment, applicant
belonged to a bargaining unit represented by the
NFB section of the Syndicat général du cinéma et
de la télévision, and that her working conditions
were governed by the collective agreement for
employees in the technical category signed
November 13, 1975 by this Union and the Nation
al Film Board. The collective agreement con
tained, inter alia, the following two clauses:
13.03 A laid-off employee has priority for reinstatement during
a period of eighteen (18) months from the date of his lay-off.
Seniority is not interrupted if the employee is reinstated during
that period.
40.01 The Employer maintains the principle and the practice
of obtaining the services of regular employees and freelancers.
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.
When applicant learned that her contract of
employment would not be extended or renewed
after February 28, 1977, she filed a grievance
maintaining that she was entitled to remain in the
employ of the Board. Alleging that there was work
for her to do, since several freelancers were
employed on tasks that she could well have done,
she claimed that the Board's refusal to continue to
employ her contravened article 40.01 of the collec
tive agreement. This is the grievance that was
dismissed in the decision that applicant seeks to
have set aside.
In my opinion, the impugned decision is correct
and applicant's application should therefore be
dismissed.
Applicant had been hired for a specified term.
Her employment would normally have come to an
end upon expiry of the agreed time. This was not
disputed by counsel for the applicant, who argued,
however, that such a contract contravened the
collective agreement since the stipulation of a term
would cause the employee to lose his right under
article 13.03 to priority in rehiring. This argument
is not valid. Article 13.03 grants a right to
employees who have been laid off. Article 2.10 of
the agreement defines the expression "lay-off' as
follows:
2.10 "Lay-off" means termination of employment because of
lack of work;
An employee hired for a specific term is not laid
off when this term expires, since the termination of
his employment at that time is not due to lack of
work but to the terms of the contract under which
the employee was hired. Such an employee there
fore has no rights under article 13.03 once the
term for which he was hired comes to an end. In
other words, the contract of employment for a
specific term cannot be said to contravene article
13.03 of the agreement.
Counsel for the applicant maintained, however,
that applicant lost her employment because "free-
lancers" were hired to do work that applicant
could have done. The hiring of the freelancers was
therefore prejudicial to the applicant and consti
tutes a breach of article 40.01 of the agreement.
In my view the Adjudicator was right to dismiss
this argument. Article 40.01 confirms the employ
er's right to hire freelancers but prohibits him
from exercising this right "to circumvent the
provisions of this agreement or to terminate
employment of regular employees." It is clear that
in this case freelancers were not hired to "circum-
vent the provisions of this agreement", since noth
ing in the agreement gave applicant the right to a
renewal or extension of her employment. As for
the question of whether the freelancers in the case
at bar were hired in order "to terminate [the]
employment" of applicant, the Adjudicator replied
that they were not because in his opinion the
evidence presented to him did not establish "any
causal relationship between the hiring of the free
lancers and the termination of Mrs. Dansereau's
employment which might have indicated that the
employer had intended, in hiring the freelancers,
to terminate Mrs. Dansereau's employment". I see
nothing to add to this part of the Adjudicator's
decision, which is based on a finding of fact which,
according to the record, is accurate.
For these reasons, I would dismiss the
application.
* * *
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.