A-73-77
Eric A. Bolling, J. Robinson and G. R. Widdis
(Applicants)
v.
Public Service Staff Relations Board (Respond-
ent)
Court of Appeal, Thurlow A.C.J., Ryan and Le
Dain JJ.—Ottawa, May 26, 1977.
Judicial review — Labour relations — Public Service
Collective agreement between Treasury Board and the Profes
sional Institute of the Public Service of Canada — Service in
Canadian Armed Forces cannot be included in calculation of
vacation leave — Federal Court Act, s. 28 — Public Service
Staff Relations Act, R.S.C. 1970, c. P-35, s. 2 — Agreement
between the Treasury Board and the Professional Institute of
the Public Service of Canada, Group: Scientific Regulation,
Article 18.
APPLICATION for judicial review.
COUNSEL:
M. Wexler for applicants.
Robert W. Côté for respondent.
SOLICITORS:
M. Wexler c/o Professional Institute of the
Public Service of Canada for applicants.
Deputy Attorney General of Canada and the
Public Service Staff Relations Board for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
THURLOW A.C.J.: The question of law which
arises on this application is whether service in the
Canadian Forces should be counted in calculating
vacation leave under Article 18 of a collective
agreement between the Treasury Board and the
Professional Institute of the Public Service of
Canada covering employees of the Scientific Regu
lation Group. Under Article 18.02, for the purpose
of the Article "service" means all periods of
employment in the Public Service, whether contin
uous or discontinuous, except where a person, on
leaving the Public Service, takes or has taken
severance pay. The agreement contains no defini
tion of the expression "employed in the Public
Service" or of the expression "Public Service" but,
under Article 2.02, except as otherwise provided in
the agreement, expressions used in the agreement,
if defined in the Public Service Staff Relations
Act', have the same meaning as given to them in
that Act.
In section 2 of that Act, the expression "Public
Service" is defined as meaning
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;
Schedule I lists inter alla departments named in
Schedule A to the Financial Administration Act 2
and the lists in that Schedule include "Department
of National Defence".
In our opinion, neither the general substantive
provisions of the Public Service Staff Relations
Act which confer collective bargaining rights on
certain employees in the public service of Canada,
nor those of the Public Service Employment Act 3
which provide for selection on the merit principle,
for rights with respect to promotion and for
appeals, apply to members of the Canadian
Forces. The terms and relationships under which
they serve are prescribed by the National Defence
Act 4 and are largely, if not entirely, inconsistent
with the application of either the Public Service
Staff Relations Act or the Public Service
Employment Act to them. That they are not
included in the general body of persons to whom
the Public Service Staff Relations Act and the
Public Service Employment Act apply is borne out
by the fact that they are specially mentioned in
paragraph 2(2)(b) of the latter Act for the purpose
of conferring particular rights on them.
It would, therefore, in our view, be wrong to
read the definition of that segment of the public
service of Canada which is to be referred to as the
"Public Service" throughout the Public Service
Staff Relations Act, and indeed the Public Service
Employment Act as well, where the definition
' R.S.C. 1970, c. P-35.
2 R.S.C. 1970, c. F-10.
' R.S.C. 1970, c. P-32.
4 R.S.C. 1970, c. N-4.
refers to and coincides with that in the Public
Service Staff Relations Act, as embracing mem
bers of the Canadian Forces.
We are accordingly of the opinion that the
adjudicator correctly decided that service in the
Canadian Forces is not service within the meaning
of Article 18 of the collective agreement.
The application will therefore be dismissed.
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.