T-3277-76
Pierre Isidore Girard (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Walsh J.—Montreal, February 22;
Ottawa, March 4, 1977.
Crown — Contract for personal services — Whether, with
out contractual agreement, plaintiff entitled to holiday pay
pursuant to s. 40 of Canada Labour Code — Whether plaintiff
employed pursuant to section 13, 14 or 16 of National Film
Act — Exclusion of National Film Board from provisions of
Canada Labour Code — Canada Labour Code, R.S.C. 1970, c.
L-1, ss. 27(2) and 40 — National Film Act, R.S.C. 1970, c.
N-7, ss. 10(1)(d), 13 and 14 — Public Service Staff Relations
Act, R.S.C. 1970, c. P-35, s. 2.
Plaintiff is claiming holiday pay under the provisions of the
Canada Labour Code in the absence of any such entitlement
having been agreed to in his contract with the National Film
Board. Defendant admits that the plaintiff was employed by
the Board but argues that the provisions of the Code do not
apply.
Held, the claim is dismissed. At issue is not whether the
plaintiff was an employee of the National Film Board within
the meaning of the Public Service Staff Relations Act, but
whether in the absence of any contractual agreement he is
entitled to holiday pay. He could only be so entitled by virtue of
section 40 of the Canada Labour Code and section 27 of the
Code excludes from its provisions departments or agencies,
such as the National Film Board, that are governed by the
Financial Administration Act.
ACTION.
COUNSEL:
Pierre Isidore Girard appearing on his own
behalf.
Patricia Gariépy for defendant.
SOLICITORS:
Pierre Isidore Girard, Montreal, for himself.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
WALSH J.: Plaintiff claims the sum of $770.60
representing 4% of the amount of $19,265 which
he earned while working for the National Film
Board of Canada from September 1973 to July
1975, as a result of a series of contracts with them,
as holiday pay during this period. Defendant
admits that the amounts are correct but the date
of the period of employment was up to September
8, 1975. It denies, however, that any holiday pay is
due as the result of the terms of his employment
and states that the provisions of the Canada
Labour Code' do not apply in his case.
During the period in question he was employed
as an assistant editor or sound editor on both
French and English productions. With the excep
tion of a series of invoices for the period between
January and March 1974 when he simply invoiced
the Board on a per diem basis varying between $30
and $40 a day and was paid these amounts without
deductions his employment resulted from a series
of contracts some calling for $100 weekly pay
ments and others for amounts of $40, $45, or $50
a day payable every two weeks. These latter con
tracts calling for payment on a per diem basis have
a clause stating that "statutory holidays falling
within this period shall be considered as paid
holidays". His pay slips indicate that deductions
were made regularly for federal and provincial
income tax, Quebec Hospital Insurance, Canada
Pension Plan and Unemployment Insurance. On
the other hand he was unable to join the union and
no deductions were made for the public service
pension plan nor for the medical plan nor was he
required to take any oath of secrecy when taking
up his employment.
He states that he worked a regular eight-hour
day like anyone else and considers that he was a
regular employee. As an example, in cases where
he was merely rendering services to an employer,
he submitted a number of invoices which he ren
dered from time to time to one Sonolab Inc. on an
hourly basis for which he was paid the gross
amount without any deductions.
' R.S.C. 1970, c. L-1.
Mr. Gilles Roy, the Assistant Personnel Direc
tor of the National Film Board, testified that there
are several different types of employees. First
there is the regular employee covered by section 13
of the National Film Act 2 . Subsection (3) of this
section reads as follows:
(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.
Subsection (4) provides that the appointment of
such a person to a continuing position at a salary
exceeding five thousand dollars is not effective
until approved by the Governor in Council. Sub
section (5) provides that such an employee shall
take an oath of office and secrecy.
The second class of employee is covered by
section 14 which reads as follows:
14. Thé 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.
Mr. Roy contends, however, that plaintiff's
employment was by virtue of a series of contracts
made pursuant to section 10(1) (d) of the Act
which reads 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;
Except for the period between January and March
1974, when plaintiff appears to have been
employed on a per diem basis and paid accordingly
on a separate form headed "Invoice for Goods
and/or Services" which indicates that these were
contracts for services and the 4% holiday pay
would certainly not apply, plaintiff's employment
was by a series of contracts in which the pay
clause No. 2 is left blank to be filled in when the
contract is negotiated. Apparently occasionally
2 R.S.C. 1970, c. N-7.
such a negotiated pay clause calls for the payment
of 4% holiday pay on termination but this was not
the case in any of the contracts made with plain
tiff. According to Mr. Roy he was engaged as a
"pigiste". This is a term which is somewhat dif
ficult to translate but the collective agreement
between the National Film Board and Le Syndicat
général du Cinéma et de la Télévision, Technical
Category, Article 40 translates pigisme as free
lancing. This Article reads as follows:
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.
40.02 The Employer agrees to consult the Syndicat every three
months on the matter of utilization of freelancers.
According to Mr. Roy plaintiff's name was includ
ed on the list of freelancers sent to the union every
three months. Unlike full-time employees they are
free to take other employment at the same time if
they wish. The reason they do not form part of the
union is that their salaries vary according to the
agreements made. While Mr. Roy contended that
such freelance employees engaged under section
10(1)(d) normally are paid 10% to 15% more than
similar full-time employees, which would compen
sate for the fact that they are not paid 4% vacation
pay, plaintiff denies that he was receiving more. It
was conceded that there is a variation in pay
between the various freelancers as appears in fact
from the different rates of pay paid to plaintiff
himself under various agreements.
Mr. Roy further testified that at some time the
National Film Board had requested an opinion as
to whether unemployment insurance deductions
should be made from such employees and the
answer was in the affirmative. Since this was never
appealed there is no decision by an Umpire under
the Unemployment Insurance Act on this issue.
Two decisions of the Public Service Staff Rela
tions Board were referred to. The first dated
May 1, 1974, No. 147-8-7, is a decision by virtue
of section 33 of the Public Service Staff Relations
Act on application by Le Syndicat général du
Cinéma et de la Télévision seeking to establish the
affiliation of one Mr. Leblanc to its negotiation
unit. Mr. Leblanc was employed by the National
Film Board under somewhat similar conditions to
plaintiff in the present case and at page 6 of the
decision it is stated:
[TRANSLATION] Mr. Leblanc did the same work during the
same working hours and under the same supervision as regular
employees of the sound synchronization service.
At page 7 it is stated:
[TRANSLATION] The parties agree that persons employed as
"pigistes" by respondent are not employees in the sense under
stood in the collective agreement or the Public Service Staff
Relations Act and that they do not belong to a negotiation
unit. 3
Analyzing the provisions of section 2 of the Public
Service Staff Relations Act 4 which reads as
follows:
2. In this Act
"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,
(/) 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
3 Plaintiff testified that eventually he paid union dues volun
tarily hoping that the union would in due course be enabled to
include the pigistes in the negotiating unit, but in the absence
of a change in the collective agreement this is irrelevant.
4 R.S.C. 1970, c. P-35.
(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;
and 10(1)(d) of the National Film Act (supra) the
decision concludes at page 11 that section 2 of the
Public Service Staff Relations Act does not
exclude its application to persons such as Mr.
Leblanc who have been employed continuously for
over six months, and that as a result he is included
in the definition of an employee within the said
section 2 of the Public Service Staff Relations
Act.
After referring to the terms of the contract of
employment and to sections 13, 14 and 10(1)(d) of
the National Film Act, the Board concluded that
Mr. Leblanc had never at any time been appointed
to a regular position and therefore remained a
freelance employee despite the fact that he was
working by virtue of a series of personal service
contracts with his employers and hence could not
be considered as affiliated with a negotiating unit
of the petitioner.
Another decision was made by the Public Ser
vice Staff Relations Board on November 18, 1976,
bearing No. 143-8-160 in which Le Syndicat géné-
ral du Cinéma et de la Télévision were petitioners
seeking to be accredited as a negotiation unit for
persons attached to the National Film Board by an
employment contract for at least six months and
obliged to spend one third of the normal working
time required from members of the technical unit
doing similar work. That application was heard on
the basis that these workers were subject to the
same supervision, working at the same place and
under the same working conditions, and that in
some cases they benefited from some of the social
advantages such as paid annual holidays and statu
tory holidays and overtime pay. The persons in
question were employed by virtue of section
10(1) (d) of the Act and did not take the oath of
office required by section 13(5) and were not
required to contribute to the retirement pension
fund established by virtue of the Public Service
Superannuation Act. This decision again referred
to the definition of "employee" in the Public Ser
vice Staff Relations Act (supra). It also referred
to the definition of "Public Service" in section 2 of
this Act which reads as follows:
"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;
The National Film Board comes within Part II of
Schedule I and is therefore a "separate employer"
within the meaning of the definition of "employer"
in section 2 which reads as follows:
"employer" means Her Majesty in right of Canada as repre
sented by,
(a) in the case of any portion of the public service of Canada
specified in Part I of Schedule I, the Treasury Board, and
(b) in the case of any portion of the public service of Canada
specified in Part II of Schedule I, the separate employer
concerned;
The Board concluded that there is no doubt that
persons employed by virtue of section 13(3) or 14
of the National Film Act are persons employed in
the Public Service and as a consequence
"employees" in the sense of the Public Service
Staff Relations Act. It concluded however that
persons employed by virtue of section 10(1) (d) of
the Act do not occupy "positions" within the
meaning of the definition of "Public Service", are
therefore not employees within the meaning of the
Public Service Staff Relations Act, and that only
such employees can be represented by an accredit
ed negotiating agent.
This Court is bound neither by the decision of
the Minister of National Revenue in connection
with the deduction of unemployment insurance
contributions from plaintiffs remuneration, nor by
the two decisions of the Public Service Staff Rela
tions Board although such decisions are of consid
erable interest in deciding the present action. On
the facts it is clear that in most respects plaintiffs
employment more closely resembled a contract of
personal service than a contract for services. There
are other factors referred to above, however, which
indicate that he could not be considered as an
employee of the National Film Board within the
meaning of the Public Service Staff Relations Act
in view of the manner of his appointment. The
issue in the present case is not whether his employ
ment came within the terms of the Public Service
Staff Relations Act, however, which was the issue
in the two cases referred to, but merely whether in
the absence of specific reference to it in various
employment contracts he is entitled to 4% holiday
pay. In the absence of such specific agreement his
only right to same would be by virtue of section 40
of the Canada Labour Code. Section 27(2) of that
Act, which comes within Part III dealing with
standard hours, wages, vacations and holidays,
reads as follows:
27. (2) This Part applies to and in respect of any corpora
tion established to perform any function or duty on behalf of
the Government of Canada other than a corporation that is a
department under the Financial Administration Act.
Unfortunately for plaintiff the National Film
Board is a department under the Financial
Administration Act 5 being designated as such by
virtue of Order in Council 1903 of 1952. It there
fore does not come within the provisions of Part
III of the Canada Labour Code. Plaintiffs claim
for holiday pay must therefore fail.
Since the issue has apparently never been raised
before, and on the facts plaintiff had considerable
justification for feeling that he was so entitled, I
exercise my discretion in dismissing his action, as I
am obliged to do, by doing so without costs.
5 R.S.C. 1970, c. F-10.
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.