Date: 19980914
Docket: T-1423-98
| Between: Ali GAHAM |
Plaintiff
| v. |
| Her Majesty the Queen in right of Canada |
| -and- |
| Minister of Human Resources Development Canada |
| -and- |
| Attorney General of Canada |
Defendants
REASONS FOR ORDER and ORDER
DENAULT J.:
[1] The defendants challenge the jurisdiction of this Court and move for the dismissal of the action for damages brought by the plaintiff as a result of the non-renewal of his employment for a specified period within the federal public service at Human Resources Development Canada in Montréal.
[2] Claiming that the facts adduced and the remedy sought concern labour relations between the plaintiff and his former employer under the Public Service Staff Relations Act, R.S.C.,1985, c. P-35, the defendants argue that this Court does not have the jurisdiction ratione materiae to hear this case because of the exclusivity of the remedy to the grievance procedure under this Act.
[3] Counsel for the defendant [sic] opposes the motion and argues that as an employee for a specified period of less than three months, he is not subject to and does not have access to the grievance procedure set out in Part IV of the Public Service Staff Relations Act, as he is not an employee within the meaning of the Act.
[4] I believe that the plaintiff is correct and that the defendant"s motion must be dismissed.
[5] There is no doubt in the case at bar that the plaintiff was originally hired for a specified period, namely from January 5 to March 31, 1998, as evidenced in the [TRANSLATION]"offer of employment for a specified period", dated January 5, 1998. On March 20, 1998, the plaintiff was offered an [TRANSLATION] "extension of offer of employment for a specified period" from March 31 to June 10, 1998, which he accepted. While the first offer of employment stated specifically that the terms and conditions of his employment would be determined by the "Public Service Terms and Conditions of Employment Regulations" as applicable to casual employees, the second indicated that the terms and conditions of his employment would [TRANSLATION] "now be determined by the collective agreement for [his] group and level and by the Public Service Terms and Conditions of Employment Regulations" (emphasis added).
[6] Under the terms of these Regulations, the plaintiff was a casual employee as defined in section 2:
| casual employee means |
| (a) a person employed on a casual basis pursuant to the Public Service Employment Act; or |
| (b) any other person employed for a specified period pursuant to the Public Service Employment Act unless the term of employment is for a period of three months or more, or the person has been employed for a period of three months or more with no break in employment in excess of five working days (employé occasionnel); |
In the case at bar, the plaintiff certainly worked under two offers of employment each for a specified period of employment of less than three months; however, nothing in the definition of casual employee indicates that these two consecutive offers of employment, taken together, would cause him to lose this status. The same is true for the second part of the sentence in paragraph (b) of the definition: as constituted, the record does not indicate that the plaintiff was "employed for a period of three months or more with no break in employment in excess of five working days".
[7] Moreover, in order to be subject to or to have the right to the grievance procedure provided in Part IV of the Public Service Staff Relations Act (sections 91 et seq.), one must be an employee within the meaning of subsection 2(1) of the Act:
| "employee" means a person employed in the Public Service, other than |
. . .
| (h) a person employed on a term basis, unless the term of employment is for a period of three months or more or the person has been so employed for a period of three months or more, |
| . . . . |
In its present state, the record does not indicate that the plaintiff is an employee withing the meaning of the Act.
[8] In light of my conclusion with respect to the jurisdiction of this Court to hear and decide this case, it is unnecessary to deal with the argument of counsel for the defendants and the long line of supporting case law concerning the exclusivity of the remedy to the grievance procedure to which an employee is subject.
[9] For these reasons, the defendants" motion is dismissed, without costs.
O R D E R
The defendants" motion is dismissed, without costs. The time provided in Rule 204 for service and filing of the statement of defence is extended by 30 days.
PIERRE DENAULT
J.F.C.C.
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1432-98
STYLE OF CAUSE: Ali Gaham v. Her Majesty the Queen in Right of Canada et al.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 10, 1998
REASONS FOR JUDGMENT OF DENAULT J.
DATED: September 15, 1998
APPEARANCES:
Grégoire M. Bijimine FOR THE PLAINTIFF
Carole Bureau FOR THE DEFENDANTS
SOLICITORS OF RECORD:
Grégoire M. Bijimine FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANTS
Deputy Attorney General of Canada
Ottawa, Ontario