Lussier-Faouaz v. The Crown in Right of Ontario (Ministry of Housing), 1997 CanLII 10279

P/0011/92

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Lussier-Faouaz

Grievor

• and -

The Crown in Right of Ontario (Ministry of Housing)

Employer

BEFORE

J.A. Willes

Panel Chairperson

FOR THE GRIEVOR

L. Lussier-Faouaz Grievor

FOR THE EMPLOYER

D. Costen Counsel Legal Services Branch Management Board Secretariat

HEARING

December 2, 1996.

Decision

The Grievor, Ms. Lorraine Lussier-Faouaz, was appointed by Order-in-council dated September 22, 1988 as a member of the Rent Review Hearings Board for a period of one year, commencing on September 26, 1988, and expiring on September 25, 1989. The Order-in-Council reads in part as follows:

PURSUANT to subsection 38(1) of the Residential Rent Regulation Act, 1986, S.O. 1986, Chapter 63, LORRAINE LUSSIER FAOUAZ, of Ottawa, in the Province of Ontario, be appointed as a member of the Rent Review Hearings Board, for a period of one year, commencing on the 26th day of September, 1988 and expiring on the 25th day of September, 1989.

The Order-in-Council was not renewed, and several years later, in May of 1992, the Grievor filed a grievance with the Public Service Grievance Board, alleging that she was a public servant, and improperly dismissed.

At the outset of the hearing, Counsel for the Employer submitted that the Grievor was never appointed as a public servant pursuant to the Public Service Act R.S.O. 1980, c.418 (now R.S.O. 1990 c.P-47) and consequently, was not entitled to grieve her termination under the Act.

In the alternative, Counsel submitted that the grievance was filed over 2 1/2 years after the Grievor's appointment ended, and some 2 1/2 years beyond the time limits for filing a grievance set out in Regulation 881 (now Regulation 977) under the Public Service Act.

During the course of argument, the parties referred to the following provisions of the Residential Rent Regulation Act, S.O. 1986, Chapter 63:

s. 37. A board to be known as the Rent Review Hearings Board is established.

s. 38. (1) The Board shall be composed of such number of members as the Lieutenant Governor in Council may appoint.

(2) The members of the Board who are not members of the public service of Ontario shall be paid such remuneration and expenses as the Lieutenant Governor in Council from time to time determines.

(3) The Public Service Superannuation Act and the Superannuation Adjustment Benefits Act apply to members of the Board.

s. 39. Members of the Board, other than the vice-chairman, shall not be members of the public service of Ontario, and shall hold office during pleasure.

s 41. (1) The Lieutenant Governor in Council shall appoint one of the members of the Board as chairman, and another of the members as vice-chairman.

s. 43. (1) The members shall devote the whole of their time to the performance of their duties as members of the Board, and shall not accept or hold any office or employment inconsistent with such duties.

Counsel for the Employer submitted that the Grievor was never appointed as a public servant, and s.39 of the Residential Rent Regulation Act provides that members of the Board shall not be members of the public service of Ontario. Counsel also stated that the Grievor was not employed as a public servant under the jurisdiction of a Deputy Minister, but rather, as an appointee to a board under the general direction of a chairman. Counsel argued that at no time was the Grievor's status changed, and at no time was she appointed to a position under the Public Service Act. His position was that the Grievor was appointed pursuant to s. 38(1) of the Residential Rent Regulation Act as a member of the Board for a one year term that expired on the 25th day of September 1989, at which time the Grievor ceased to be employed on the Board. Counsel submitted that the Grievor was not a public servant as defined in the Public Service Act, and this fact precludes the Public Service Grievance Board from hearing the grievance. In support of his position, Counsel cited: P.S.G.B. P/0037/92 L. Rampersad and the Crown in Right of Ontario (Worker's Compensation Board) (Oct. 8, 1993); P.S.G.B. P/0001/91 R. Dileo and The Crown in Right of Ontario (Metropolitan Toronto Convention Centre) (Dec. 19, 1991); P.S.G.B. P/0006/87 G. Pelissero and The Crown in Right of Ontario (GO Transit) (Sept. 22, 1987) ; P.S.G.B. P/0003/86 A. Nearingburg and The Crown in Right of Ontario (Ministry of Tourism and Recreation) (Nov. 24, 1986).

The Grievor conceded that she had been appointed pursuant to the Residential Rent Regulation Act under an Order-in-Council, but argued that her position changed thereafter. She stated that on or about October 5th or 6th, 1988 she met with representatives of the Public Service, and was advised that she would be paid on a salary basis rather than at a per diem rate, and that she was entitled to contribute to the pension plan. She also stated that she was required to swear a standard oath of secrecy affidavit that described her as a 'civil servant'. It was her submission that these changes together with later (1991) advertisements for the position that indicated that it was a public service position, supported her argument that she had become a public servant, rather than a term appointee to the Board. In support of her argument the Grievor cited: Cloutier v. Science Council of Canada (1995) 1995 CanLII 10661 (ON CTGD), 23 O.R. (3d) 713; and excerpts from Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police (1978); 1978 CanLII 24 (SCC), 88 D.L.R. (3d) 671; Vine v. National Dock Labour Board [1957] A.C. 488; Placsko v. Board of Humboldt School Unit No. 47 of Saskatchewan (1971) 1971 CanLII 840 (SK QB), 18 D.L.R. (3d) 374, affirmed, 1971 CanLII 820 (SK CA), 22 D.L.R. (3d) 663; Koch v. Trustees of Ottawa Civic Hospital [1979] 3 A.C.W.S. 200; and Berg v. Cowie

(1918) 1918 CanLII 319 (SK CA), 40 D.L.R. 250.

The Grievor also submitted that the advertisement of the position was misleading, and violated s. 52(1) (a) of the Competition Act.

The above-noted brief excerpts from the submissions of the parties are set out to provide the general position of each party on the Employer's preliminary objection as to the jurisdiction of this Board to hear the grievance. The Board has, nevertheless, carefully reviewed all of the evidence and argument submitted.

At the outset, it is important to note that the Public Service Grievance Board is a creature of statute, with its powers and jurisdiction to hear grievances delineated by the Public Service Act and the Regulations related thereto. Regulation 881 (now Reg. 977) of the Revised Regulations of Ontario provides in s. 42 the general jurisdiction of the Board to hear dismissal cases, and states:

s. 42 (1) Sections 43 to 48 apply to persons who are employed in the public service under the jurisdiction of a deputy minister and who have been so employed continuously for at least the preceding twelve months.

For this Board to assume jurisdiction, the Grievor must establish that she falls within these provisions, namely, that she was appointed as a public servant under the Public Service Act, and employed in the public service under the jurisdiction of a Deputy Minister.

The threshold issue in this case then is the determination of the Grievor's status. Counsel for the Employer submitted that the Grievor was not a public servant, but rather an appointee by Order-in-Council pursuant to s. 38 (1) of the Residential Rent Regulation Act. The Grievor conceded that this was the case, but argued that her status changed shortly after her appointment in that she became a salaried employee entitled to contribute to the pension plan, and that several years later (in 1991) the position was advertised as a public service position.

On the matter of salary, the salaries of members were established by an Order-in-Council dated September 22, 1988, the same date that the Grievor was appointed as a member. Presumably this was the method of remuneration decided upon by the government, in view of the fact that members appointed to the Board were expected to devote the whole of their time to the performance of their duties (Sec. 43 (1) ) . Members appointed to the Board were also entitled to take advantage of The Public Service Superannuation Act and the Superannuation Adjustment Benefits Act as well. (Sec. 38(3)).

The Grievor submitted that she became a public servant shortly after her appointment as a member of the Residential Rent Regulation Act. However, to fall within the jurisdiction of the Public Service Grievance Board for dismissal grievance purposes, a person must be employed in the public service under the jurisdiction of a Deputy Minister.

The Public Service Act defines 'public servant' and 'civil servant' as follows:

s. 1 In this Act,

“Civil servant” means a person appointed to the service of the Crown by the Lieutenant Governor in Council on the certificate of the Commission or by the Commission, and "civil service” has a corresponding meaning ( “fonctionnaire titulaire" , "Fonction publique”)

“Public servant" means a person appointed under this Act to the service of the Crown by the Lieutenant Governor in Council, by the Commission or by a minister, and “public service" has a corresponding meaning; (“fonctionnaire”, “fonction publique")

No evidence was placed before this Board to indicate that the Grievor was appointed under the Public Service Act to the service of the Crown, the only evidence being an appointment pursuant to the Residential Rent Regulation Act.

The Grievor submitted that she was required to sign an oath of secrecy in the form provided under the Public Service Act for civil servants, and the oath described her as a 'civil servant'. It is important to note, however, that the appointment of a person as a civil servant is essentially a duty of the Civil Service Commission, at least with respect to positions in the classified service. No evidence was presented to indicate that the Grievor was appointed to a position in the classified service, and Counsel for the Employer stated that no such appointment was ever made. On this basis, this Board is not prepared to find that the mere signing of an oath that described the Grievor as a civil servant would change her status to that of a civil servant, particularly since s.10(3) of the Public Service Act provides that a minister may require any person or class of persons appointed to the unclassified service to take such an oath.

Counsel for the Employer submitted that the Grievor was appointed as a member of the Rent Review Hearings Board and was not employed under the jurisdiction of a Deputy Minister. From the evidence and the submissions at the hearing, the Rent Review Hearings Board members do not appear to fall under the jurisdiction of the Deputy Minister, but appear to conduct their duties entirely outside the supervisory control of the Deputy Minister. S.39 of the Residential Rent Regulation Act also clearly states that members of the Board shall not be members of the public service.

In summary then, from the evidence, this Board finds that no change in the employment of the Grievor from that of a member of the Rent Review Hearings Board appointed under s. 38 (1) of the Residential Rent Regulation Act took place, and the Grievor was not a person employed in the public service under the jurisdiction of a Deputy Minister.

On this basis, and for the reasons given, this Board must conclude that the Grievor fails to meet the status to grieve her dismissal as required by s. 42(1) of Regulation 881. Accordingly, this Board finds that it lacks the jurisdiction to hear the grievance, and the grievance is therefore dismissed.

DATED AT TORONTO THIS 24th DAY OF MARCH, 1997.