Court File and Parties

CITATION: Sisulak v. Her Majesty the Queen in Right of Ontario, 2011 ONSC 1486

DIVISIONAL COURT FILE NO.: DC-09-00060-00

DATE: 2011-03-09

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

The Honourable Mr. Justice J.R.R. Jennings, The Honourable Mr. Justice D.K. Gray, and The Honourable Mr. Justice J.A. Ramsay

BETWEEN:

Fred Sisulak Applicant

– and –

Her Majesty The Queen In Right of Ontario (as represented by the Ministry of Community Safety and Correctional Services), and The Attorney General for Canada Respondent

COUNSEL:

John F.L. Rose, for the Applicant

Peter Dailleboust, for the Respondent, Her Majesty The Queen In Right of Ontario

HEARD: March 7, 2011

REASONS FOR JUDGMENT

GRAY J.

[1] This is an application for judicial review of a decision of the Public Service Grievance Board (the “Board”), dated April 30, 2009. By that decision, Deborah Leighton, Vice-Chair of the Board, held that the Board had no jurisdiction to entertain Mr. Sisulak’s grievance regarding his unlawful dismissal, because he did not have twelve months’ employment with the Crown on the date of his dismissal, or on the date he filed his grievance.

[2] The application for judicial review was dismissed on the day it was argued, for reasons to be delivered in writing. These are those reasons.

Background

[3] Mr. Sisulak was terminated from his employment with the Crown on November 7, 2006. He filed his grievance on January 22, 2007. When the matter came on before the Board, the employer argued that the Board had no jurisdiction to hear Mr. Sisulak’s grievance.

[4] The parties argued the preliminary matter on the basis of an Agreed Statement of Facts.

[5] From 1981 until December 2000, Mr. Sisulak had been employed in the Ontario Public Service at the Penetanguishene Mental Health Centre. He was dismissed, and pursuant to a Memorandum of Settlement, he left the Ontario Public Service.

[6] The Crown constructed some new institutions, one in Lindsay and one in Penetanguishene. A private sector operator, First Correctional Medical (“FCM”), was retained to supply health care services and professional services at the institution in Penetanguishene. Mr. Sisulak was employed by FCM to work at the institution. He started as a nurse and was eventually promoted to Manager of Health Services.

[7] In the Spring of 2006, it was announced that in November 2006, the Ministry of Community, Safety and Correctional Services (the “Ministry”) would be assuming operation of the Penetanguishene institution.

[8] Existing staff, including Mr. Sisulak, were advised that upon hire their service with the institution would be recognized for the purpose of calculating severance pay under the Employment Standards Act, and that there would be no probationary period.

[9] Mr. Sisulak was, on October 4, 2006, given a conditional offer of employment with the Ministry as Manager of Health Services at the institution. On August 5, 2006, he received the Ministry policy binder, was fingerprinted, and swore his Oath of Allegiance.

[10] On November 7, 2006, Mr. Sisulak’s offer of employment was purportedly rescinded, on the basis that the Ministry had received information that he had previously been employed by the province and that he had been terminated.

[11] On January 22, 2007, Mr. Sisulak grieved that the Ministry had wrongly dismissed him. The matter ultimately came on for hearing before the Board, and was heard on November 8, 2007 and December 5, 2007. The Crown argued, as a preliminary objection, that the Board had no jurisdiction to hear and determine the matter.

[12] At the hearing before the Board, counsel for the employer argued that Mr. Sisulak’s offer of employment was properly rescinded, and was thus not a dismissal. In the alternative, s. 33(2) of Ontario Regulation 977 (“Regulation 977”) precludes the Board from hearing the grievance. Pursuant to s. 33(2) of the Regulation, a person grieving a wrongful termination must have been employed in the public service under the jurisdiction of a deputy minister for at least 12 months prior to being dismissed.

[13] Counsel for the Crown argued that the Public Service Act and Regulation 977 continued to apply to Mr. Sisulak’s case notwithstanding their repeal and revocation in August, 2007. The grievance had been filed in January, 2007, and the rights of the parties had crystallized then. Counsel argued that substantive rights survive the repeal of an Act or the revocation of a Regulation, and the rights in this case are substantive.

[14] Counsel for Mr. Sisulak argued that the Board had jurisdiction to hear the case. He argued that, pursuant to the Public Service of Ontario Act, 2006, which came into effect on August 20, 2007, and Regulation 378/07 (the “New Regulation”), promulgated pursuant to that Act, Mr. Sisulak had the right to grieve without having served twelve months of employment. Under the New Regulation, if an employee’s probation period has been waived, as here, the employee can grieve his or her dismissal at any time, without being required to serve twelve months of employment.

[15] Counsel for Mr. Sisulak argued that the legislative change was procedural only, and thus the New Regulation governed the procedural rights of the parties, and not the old Regulation. Furthermore, he argued that the new legislation and Regulation have retrospective operation, as set out in s. 52 of the Legislation Act, 2006. Pursuant to that section, proceedings commenced under a former Act or Regulation are to be continued under a new Act or Regulation in conformity with the new Act or Regulation as much as possible.

[16] In the alternative, counsel for Mr. Sisulak argued that s. 9(1) of the Employment Standards Act, 2000, governs the matter. Pursuant to that provision, employment with a former employer is deemed to have been employment with a subsequent employer for the purpose of any subsequent calculation of the employee’s length of service or period of employment. Accordingly, Mr. Sisulak’s employment with FCM should be recognized, and thus Mr. Sisulak would been deemed to have had more than twelve months of employment with the Crown.

[17] In the further alternative, counsel argued that at common law, employment with a previous employer is to be counted as employment with a subsequent employer for the purpose of calculating damages on wrongful dismissal. Counsel relies on Debenham v. CSI-Maximus (2003), 26 C.C.E.L. (3d) 32 (Ont. C.A.), and submits that by analogy the same principle should apply here.

[18] The arguments of the parties were repeated in this Court.

Analysis

(a) The Standard of Review

[19] The first issue is as to the standard of review.

[20] Counsel for Mr. Sisulak argued that the appropriate standard of review is correctness, while counsel for the Crown argued that it is reasonableness.

[21] In order to properly analyze the standard of review, it is necessary to have regard for the statutory and regulatory provisions that bear on the matter.

[22] The relevant provisions of the Public Service Act, which was repealed on August 20, 2007, are as follows:

Power to dismiss 22. (3) A deputy minister may for cause dismiss from employment in accordance with the regulations any public servant in his or her ministry.

Idem (5) A deputy minister may release from employment any public servant during the first year of employment for failure to meet the requirements of his or her position.

[23] The relevant provisions of Regulation 977, made under the Public Service Act, and which were revoked on August 20, 2007, are as follows:

33. (1) A person described in subsection (2) who is aggrieved by his or her dismissal from employment under subsection 22(3) of the Act may file a grievance with his or her deputy minister within 14 days after receiving notice of the dismissal.

(2) Subsection (1) applies to a person who has been employed in the public service under the jurisdiction of a deputy minister continuously for at least 12 months prior to being dismissed.

35. (1) The deputy minister or his or her delegate shall meet with a grievor within 30 days after receiving the grievance.

(3) The deputy minister shall give the grievor his or her decision in writing within 30 days after the meeting.

36. (1) A grievor who is not satisfied with the decision of the deputy minister may apply to the Public Service Grievance Board within 14 days after receiving the decision for a hearing about his or her grievance.

37. (1) The decision of the Board on a grievance is final.

[Emphasis added]

[24] The relevant provisions of the Public Service of Ontario Act, 2006, in force effective August 20, 2007, are as follows:

Disciplinary measures 34. The Public Service Commission may for cause impose disciplinary measures, including suspension or dismissal, on a public servant appointed by it, as the Commission considers appropriate.

Probationary period 37. (1) Where the Public Service Commission appoints a public servant to employment for a term that is not fixed, the Commission may direct that the public servant be on probation for a period of not more than one year.

Same (2) While on probation under subsection (1), the public servant may be dismissed for failure to meet the requirements of his or her position.

[25] The relevant provisions of the New Regulation made under the Public Service of Ontario Act, 2006, effective August 20, 2007, are as follows:

Complaint about dismissal for cause 2. (1) A person who is aggrieved by his or her dismissal for cause under section 34 of the Act may file a complaint about the dismissal for cause with the Public Service Grievance Board, (a) if the person is eligible under sections 5 and 6 to file such a complaint; (b) if the person gives notice in accordance with section 8 of his or her proposal to file the complaint; and (c) if the person complies with the filing requirements set out in section 10.

Restrictions, complaint about dismissal for cause 6. A person is eligible to file a complaint about dismissal for cause only if, immediately before his or her dismissal, (a) he or she had been employed continuously for a least 12 months for a fixed term or a succession of fixed terms under subsection 32 (1) or (2) of the Act; or (b) he or she was employed otherwise than for a fixed term and was not on probation. [Emphasis added]

[26] The relevant provisions of the Legislation Act, 2006, effective July 25, 2007 are as follows:

Effective of repeal and revocation 51. (1) The repeal of an Act or the revocation of a regulation does not, (a) affect the previous operation of the repealed or revoked Act or regulation; (b) affect a right, privilege, obligation or liability that came into existence under the repealed or revoked Act or regulation; (c) affect on offence committed against the repealed or revoked Act or regulation, or any penalty, forfeiture or punishment incurred in connection with the offence; (d) affect an investigation, proceeding or remedy in respect of, (i) a right, privilege, obligation or liability described in clause (b), or (ii) a penalty, forfeiture or punishment described in clause (c).

Effect of amendment and replacement Application 52. (1) This section applies, (a) if an Act is repealed and replaced; (b) if a regulation is revoked and replaced; (c) if an Act or regulation is amended.

Proceedings continued (3) Proceedings commenced under the former Act or regulation shall be continued under the new or amended one, in conformity with the new or amended one as much as possible.

New procedure (4) The procedure established by the new or amended Act or regulation shall be followed, with necessary modifications, in proceedings in relation to matters that happened before the replacement or amendment.

[27] The leading case on the standard of review is Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. As discussed in that decision, there are now only two standards of review: reasonableness and correctness.

[28] As set out at paragraphs 58-61 of Dunsmuir, the correctness standard is confined to four areas:

(a) on constitutional questions regarding the division of powers between Parliament and the provinces, as well as other constitutional issues;

(b) in the determination of true questions of jurisdiction or vires;

(c) where the question at issue is one of general law that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise; and

(d) where it is necessary to determine the jurisdictional line between two or more competing specialized tribunals.

[29] Other issues, not falling within these four areas, are subject to review on a standard of reasonableness: Dunsmuir, at paras 52-56. Examples include questions of fact, discretion or policy; issues arising where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity; and questions of law that are not of central importance to the legal system and outside the specialized area of expertise of the administrative decision-maker. A privative clause is a statutory direction from Parliament or a legislature indicating the need for deference.

[30] The Court in Dunsmuir made it clear that true questions of jurisdiction or vires will be narrowly confined. At para. 59, the Court stated:

59 Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction: D.J. M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf ed.), at pp. 14-3 to 14-6. An example may be found in United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485, 2004 SCC 19. In that case, the issue was whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of tax plate licences (para. 5, Bastarache J.). That case involved the decision-making powers of a municipality and exemplifies a true question of jurisdiction of vires. These questions will be narrow. We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so. [Emphasis added]

[31] In the case before this Court, what is at issue is a true question of jurisdiction or vires. To use the words of the Court in Dunsmuir, this is a question “where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter”.

[32] The question before the tribunal was whether it had the power to decide the issue raised in the grievance. The grievance claimed that the grievor had been dismissed without just cause. The power of the tribunal to entertain that question depended on whether the matter was governed by an earlier Regulation made under the repealed Public Service Act, or whether it was governed by a later Regulation made under the subsequently-enacted Public Service of Ontario Act, 2006. The answer depended, at least in part, on a proper interpretation of sections 51 and 52 of the Legislation Act, 2006.

[33] In my view, a description of the interpretive exercise makes it clear that what is at issue is, indeed, a pure question of jurisdiction. In coming to this conclusion, I have heeded the warning of Dickson J. (as he then was) in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, at p. 233, that courts “should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so”. In this case, the authority of the tribunal to entertain the proceeding is defined in the legislative provisions to which I have referred. The tribunal must interpret those provisions correctly.

(b) Did the Board Correctly Decline Jurisdiction?

[34] In my view, the tribunal was correct in determining that it did not have jurisdiction to entertain the matter.

[35] The grievance was filed at a time when the Public Service Act and Regulation 977 were in force. The Act and Regulation were not repealed and revoked until seven months later, and the hearing before the Board commenced three months after they were repealed and revoked.

[36] There can be little doubt, in my view, that if the repealed legislation and the revoked Regulation govern the matter, the tribunal lacks jurisdiction. Under those provisions, the grievor had no right to challenge his dismissal unless he had been employed by the Crown for twelve months. Subject to Mr. Sisulak’s argument regarding the Employment Standards Act and the common law, which I will deal with later, he was clearly not employed by the Crown for at least twelve months at the time of his dismissal. On the other hand, if the newly-enacted statute and the New Regulation govern the matter, the tribunal had jurisdiction. Under the new provisions, an employee who is not subject to a probation period (as is the case here) can challenge his or her dismissal at any time.

[37] The resolution of the problem depends on the application of canons of construction applicable to repealed and replaced legislation, and the application of the Legislation Act, 2006.

[38] The usual canon of construction is to the effect that new statutory or regulatory provisions that are procedural in nature have retrospective effect, while those that change substantive rights do not.

[39] A matter involving jurisdiction is substantive, and not procedural. This is made clear by the decision of the Supreme Court of Canada in Royal Bank of Canada v. Concrete Column Clamps (1961) Ltd., [1971] S.C.R. 1038. In that case, the provisions of the Supreme Court Act had been amended to confer jurisdiction on the Supreme Court of Canada to grant leave to appeal in a per saltum appeal, rather than on the Court of Appeal as had formerly been the case. The Court held that the amendment was substantive in nature, and thus did not apply to matters that arose before the amendment took effect. Pigeon J. stated as follows:

All the authorities we have been referred to in support of this contention merely tend to show that the principle that statutes do not operate retrospectively is not applicable to rules of procedure. However, it is well established that jurisdiction is not a procedural matter, and no reason has been shown for holding that it becomes a procedural matter when a transfer of powers, rather than an increase or a decrease, is involved.

[40] As I have discussed earlier, the question before the Board, and now this Court, is clearly one of jurisdiction. Thus, the new statutory and regulatory provisions that change the jurisdiction of the tribunal do not affect this case. The former provisions, that defined the tribunal’s jurisdiction at the time of dismissal, govern the case.

[41] This conclusion is not altered, in my view, by s. 52 of the Legislation Act, 2006. Section 52 of the Legislation Act, 2006 does not stand alone. It must be considered as part of the Act as a whole, and must be interpreted in conjunction with s. 51.

[42] Section 51 of the Legislation Act, 2006 clearly protects vested substantive rights. Specifically, it states that the repeal of an Act or the revocation of a Regulation does not “affect a right, privilege, obligation, or liability that came into existence under the repealed or revoked Act or regulation”. In this case, the employer had the vested right to dismiss an employee without challenge by the employee, unless the employee had twelve months’ service with the Crown.

[43] Section 52, on the other hand, affects procedural matters. Section 52(3) states that proceedings commenced under a former Act or Regulation are to be continued under a new or amended one, in conformity with the new or amended one as much as possible. Section 52(4) provides that the procedure established by the new or amended Act or Regulation is to be followed. There is no suggestion in these provisions that substantive rights that have crystallized are to be abrogated. Further, they do not say that the jurisdiction of a tribunal is to be expanded to include cases that arose before an amendment became effective, where the tribunal had no jurisdiction before.

[44] I do not accept Mr. Rose’s submission that the Employment Standards Act or the approach of some courts at common law affect the matter.

[45] It is clear, in my view, that s. 9(1) of the Employment Standards Act is restricted in its scope to providing for continuity of service between one employer and another for the purpose of the Employment Standards Act itself. The fact that a court at common law might, in some circumstances, take into account service with a former employer on a sale of a business, for the purpose of considering an employee’s length of service for the purpose of arriving at a period of reasonable notice, is of no moment. Such an approach by a court at common law can hardly affect the jurisdiction of the Board, whose jurisdiction depends on the construction of specific statutory and regulatory provisions.

Disposition

[46] For the foregoing reasons, the application for judicial review was dismissed.

[47] As agreed between counsel, the sum of $2,500 in costs was awarded to the Respondent payable forthwith.

Justice D.K. Gray

Justice J.R.R. Jennings

Justice J.A. Ramsay

Released: March 9, 2011