PROFESSIONAL ASSOCIATION OF FOREIGN SERVICE OFFICERS Applicant v. THE ATTORNEY GENERAL OF CANADA, 2003 FCA 162

Date: 20030326 Docket: A-27-02 Citation: 2003 FCA 162 CORAM: STRAYER J.A. LÉTOURNEAU J.A MALONE J.A. BETWEEN: PROFESSIONAL ASSOCIATION OF FOREIGN SERVICE OFFICERS Applicant and THE ATTORNEY GENERAL OF CANADA Respondent Heard at Ottawa, Ontario on Wednesday, February 26, 2003 JUDGMENT delivered at Ottawa, Ontario on Wednesday, March 26, 2003 REASONS FOR JUDGMENT BY: STRAYER J.A. CONCURRING REASONS BY: LÉTOURNEAU J.A. MALONE J.A. Date: 20030326 Docket: A-27-02 Citation: 2003 FCA 162 CORAM: STRAYER J.A. LÉTOURNEAU J.A. MALONE J.A.

BETWEEN: PROFESSIONAL ASSOCIATION OF FOREIGN SERVICE OFFICERS Applicant and THE ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT STRAYER J.A. Introduction [ 1 ] This is an application for judicial review of a decision of the Public Service Staff Relations Board ("The Board"). The Board decision of December 21, 2001 was in respect of an application by the Professional Association of Foreign Service Officers ("PAFSO") under

section 34 of the Public Service Staff Relations Act asking the Board to determine that successful candidates to the Foreign Service Development Program ("FSDP") who are required to take official language training are "employees" under that

section while taking

language training and should be included in the bargaining unit represented by PAFSO. [ 2 ] The application to the Board related both to recruits to FSDP from outside the Public Service (referred to as " ab initios ") and to those recruited from some other part of the Public Service. The Board held with respect to both groups that they did not become Foreign Service Officers in the FSDP until they had completed their language training, had been offered an appointment, and had accepted it.

The Board also held, at least in respect of the recruits from within the Public Service group and apparently in respect of both groups, that such recruits could not be members of the PAFSO bargaining unit until after completion of language training because "they do not perform any of the duties of positions included in the Foreign Service bargaining unit until they have successfully completed their language training".

In its memorandum of fact and law the applicant PAFSO does not ask the Court to require reconsideration by the Board of its decision concerning those recruited from within the Public Service, but in argument counsel suggested that its position in respect of ab initios would apply to those recruited internally. I am not sure what is meant by this but in any event the internal recruits would remain barred by the Board's conclusion that they were not performing foreign service officer functions while in language training, a conclusion the applicant does not attack.

Thus the matter under review, as stated in the applicant's memorandum, is the Board's decision that the ab initio employees were not "employees" as defined in the Public Service Staff Relations Act and were thus barred from membership in the PAFSO bargaining unit. Facts [ 3 ] The facts as found by the Board are not really in dispute in any essential respect: it is their legal consequences which are in dispute. According to the Board's findings the FSDP was commenced by the Department of Foreign Affairs and International Trade ("DFAIT") in 1997 as a five year training program for recruits to the Foreign Service.

To be admitted to this program, candidates wrote an entrance exam. Further screening reduced the original candidates by half and then interviews were conducted. Of the 4,000 to 6,000 persons writing the exam, some 80 would be ultimately successful. Those who were not bilingual would be required to attend language training for up to 52 weeks.

If successful they would have the opportunity to join the FSDP. [ 4 ] The point of contention with respect to the ab initios is as follows: the respondent has taken the position throughout that no candidate was appointed to a Foreign Service Officer position until successful completion of language training. It is at that point, he argues, when an offer is made and accepted, that a candidate becomes an "employee" within the Public Service and eligible for inclusion in the PAFSO bargaining unit.

PAFSO, on the other hand, takes the position that once such candidates commence language training, for which they are paid 80% of the salary within the FSDP, they become "employees" within the meaning of

section 34 of the Public Service Staff Relations Act and therefore should be included in the PAFSO bargaining unit. PAFSO argues that a determination by the Board of whether a person is an "employee" under

section 34 is a question going to jurisdiction and the standard of review of the Board's decision should be correctness. PAFSO argues that, though the formal communications between the potential employer, DFAIT, and the recruits to FSDP might indicate an appointment to the Public Service was only made upon completion of language training, the Board ignored evidence which showed that in fact these ab initio recruits were treated and regarded as employees while they were on language training.

In support of its position it produced as a witness, Sameena Qureshi, one of the recruits, relying on her experience as indicating the nature of the relationship between DFAIT and the FSDP candidates on language training. For the first time before this Court the applicant also raised some arguments not put to the Board concerning the lack of authority of DFAIT to make the kind of arrangements which it says it made by which recruits could be treated other than as employees.

For its part, the respondent relies on the written instruments passing between DFAIT and the recruits and contends that any other indicia indicating a different arrangement, such as faulty posters and erroneous accounting, are irrelevant to the determination of the true status of the recruits. The respondent contends that the determination by the Board of who is an employee within

section 34 is essentially one of fact, is not a matter of jurisdiction, and the standard of review is that of patent unreasonability. [ 5 ] Without going into the details of the evidence, the Board had before it some clear evidence of a formal agreement between DFAIT and Ms. Qureshi (whose case the parties seem to regard as typical) to the effect that she would not be offered a position as a Foreign Service Officer in the FSDP until successful conclusion of her language training.

On July 8, 1998 she was advised by DFAIT that she was accepted in the language training program and that "on successful completion of the training, you will receive a letter offering you a position as a Foreign Service Officer in the FSDP". The letter attached a

summary of terms and conditions to this effect and Ms. Qureshi signed a copy to acknowledge her agreement, returning it with a confirming letter of July 24, 1998. After she had successfully completed her language training, the Department sent her a letter on June 16, 1999 offering her an appointment as a Foreign Service Officer effective June 11, 1999. She also signed a copy of this letter, confirming her agreement. [ 6 ] It is true that there was some evidence inconsistent with the respondent's position that no employee status had been created until after language training was completed.

For example, a poster issued by the Department in 1997, advertising for recruits for the Foreign Service, stated that "once hired, candidates must obtain top-secret security clearance. They must also obtain the required level of bilingualism in both official languages within a specified period of time. Language training will be provided". On April 6, 1998, during the selection process, Ms. Qureshi was advised by DFAIT that she was on a short list and that she would require both a security clearance and a medical examination.

It spoke of the "candidates we will eventually hire upon confirmation of security and medical clearances". No mention was made there of a language requirement. Further, Ms. Qureshi testified that, while she was in language training, deductions were made from her pay for Income Tax, Canada Pension Plan and Employment Insurance, and she was advised that she would have to contribute under the Public Service Superannuation Act . She also received a Public Service Employees Dental Care Plan identity card.

A witness called by the respondent testified before the Board that most of these were administrative errors and in fact Ms. Qureshi never was required to contribute to the superannuation plan. Nevertheless the applicant argued that all of these matters go

to the jurisdiction of the Board and the Board erred in not finding that Ms. Qureshi and those in her position were employees while undergoing language training. It is argued that the Board thus made an error as to its jurisdiction and the standard of review is one of correctness.

Analysis [ 7 ] With respect to the standard of review, the applicant argues that it is correctness and the respondent argues that it is patent unreasonability. [ 8 ] I am rather inclined to think that the standard of review in this case is reasonableness although I do not think anything turns on it because in my view the Board's decision would meet the standard of correctness. [ 9 ] The authority being exercised by the Board is that provided in

section 34 of the Public Service Staff Relations Act which provides as follows: 34. Where, at any time following the determination by the Board of a group of employees to constitute a unit appropriate for collective bargaining, any question arises as to whether any employee or class of employees is or is not included therein or is included in any other unit, the Board shall, on application by the employer or any employee organization affected, determine the question. 34.

À la demande de l'employeur ou de l'organisation syndicale concernée, la Commission se prononce sur l'appartenance ou non d'un fonctionnaire ou d'une classe de fonctionnaires à une unité de négociation qu'elle a préalablement définie, ou sur leur appartenance à une autre unité. In the Econosult case ( Public Service Alliance of Canada v. Her Majesty [1991] 1 SCR 615 ) the Supreme Court of Canada was considering a decision taken by the Public Service Staff Relations Board under then

section 33, which is now

section 34. In that case the Board had determined that certain people hired under private contract by Econosult (which contracts specified expressly that they were not hired as employees of the Crown) were nevertheless employees in the Public Service within the meaning of the Public Service Staff Relations Act . Econosult had a contract with the Crown to provide teaching services in the Cowansville Penitentiary. When this matter came before the Supreme Court the majority considered

section 33, which mandates the Public Service Staff Relations Board to determine who is an "employee" for labour relations purposes within the Public Service, to be a jurisdiction-limiting provision. Parliament had not intended the Board to be able to deal with the labour relations of employees not members of the Public Service and therefore did not give the Board authority to decide that persons hired by a private contract could fall within the definition of "employee".

Section 2 of the Public Service Staff Relations Act provides that "employee" means a "person employed in the Public Service" (with certain exceptions not relevant here). The Supreme Court thus considered the standard of review to be correctness and it held that the decision of the Board was wrong. It did not regard the determination of whether a person working under private contract could be a member of the Public Service to be something within the general labour expertise of the Board. Emphasis was placed on the fact that the workers in question were hired under a private contract.

The Board, it was said, had no authority over workers subject to the Canada Labour Code (and the same would obviously be true of workers within provincial jurisdictions.) (See pp. 630-31). [ 10 ] I think the present case is distinguishable. The Board here was not considering whether some person engaged under private contract was de facto "employed in the Public Service" within the definition of

section 2 of the Public Service Staff Relations Act . In the present case the Board was considering whether someone who was not working under any private contract but was occupied as a student of language in a government language program and being paid a stipend by the Government of Canada for her presence there could be considered to be "employed in the Public Service". A determination of that question involved, not some common law principles of contract law as in the Econosult case, but the application of relevant federal laws governing employment by Government.

Using the pragmatic and functional approach it appears to me that Parliament intended to create a specialized tribunal dealing with persons working in a contract of service relationship with the Government and applying the unique and technical provisions of the Public Service Employment Act and the Public Service Staff Relations Act to determine who should be within bargaining units and what those units should be, as well as exercising some supervision over collective agreements in the discrete world of the Public Service.

It appears to me that Parliament would have intended it to be clearly within the Board's authority to decide that certain people in the pay of the Government should be treated as employees for the purposes of collective bargaining and others should not. [ 11 ] I am not sure that to describe this as a jurisdictional issue is very helpful.

Notwithstanding the Econosult case, perhaps the dominant view now is to be found in the Pushpanathan case ( 1998 CanLII 778 (SCC) , [1998] 1 SCR 982 at para. 29 ) where Bastarache J. writing for the majority stated: To this extent, it is still appropriate and helpful to speak of "jurisdictional questions" which must be answered correctly by the tribunal in order to be acting intra vires .

But it should be understood that a question which "goes to jurisdiction" is simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis. In other words, "jurisdictional error" is simply an error on an issue with respect to which, according to the outcome of the pragmatic and functional analysis, the tribunal must make a correct

interpretation and to which no deference will be shown. In other words if the standard of review is correctness then it must be a question of jurisdiction. Although this Court is required by paragraph 18.1(4)(

a) of the Federal Court Act to determine whether the tribunal under review "acted without jurisdiction", I take it that

we, and the Supreme Court on appeal from us, should refrain from carrying out this statutory responsibility to set aside a decision of the Board made without jurisdiction unless we first determine that the standard of review is "correctness". Notwithstanding the language of the Federal Court Act , what we must determine is standard of review, not jurisdiction per se . Using the pragmatic and functional approach it is my conclusion that the standard is not correctness because in

section 33 Parliament intended that the Board should be entitled to determine issues of what people in the employ of the Government of Canada are members of the Public Service. Such decisions do not, like the Board's in Econosult , involve dealing with labour relations of those being paid by the private sector. [ 12 ] Instead it appears to me that this involves a mixed question of law and fact, applying the relevant statutory provisions to the facts of this particular case. As such, the standard of "reasonableness simpliciter " is appropriate. (See Southam et al v.

Director of Investigation and Research 1997 CanLII 385 (SCC) , [1997] 1 SCR 748 at paras. 44 , 45, 54-58.) [ 13 ] Whether the standard is correctness or reasonableness, however I believe in this case the Board made an appropriate decision which is not amenable to judicial intervention. [ 14 ] The Board had to decide what is required for one to become an "employee" within the meaning of

section 34 of the Public Service Staff Relations Act . In the Econosult case at 634 Sopinka J. quoted with approval from the decision of this Court under appeal where Marceau J.A. stated: There is quite simply no place in this legal structure for a public servant (that is, an employee of Her Majesty, a member of the Public Service) without a position created by the Treasury Board and without an appointment made by the Public Service Commission. For this reason the Supreme Court found that there was "just no place for a species of de facto public servant who is neither fish nor fowl".(Page 633).

In the present case the applicant is contending that the candidates for the FSDP, while on language training, were some kind of de facto employees although they had not yet been given any formal appointment. It is true that DFAIT had recruited these candidates, screened them and put them on language training. It is not in dispute that DFAIT had the delegated authority from the Public Service Commission to appoint these candidates to Foreign Service Officer positions. But there is no formal instrument making such an appointment prior to their completion of language training.

Section 22 of the Public Service Employment Act which governs hiring in the Public Service provides as follows: 22. An appointment under this Act takes effect on the date specified in the instrument of appointment, which date may be any date before, on or after the date of the instrument. 22. Toute nomination effectuée en vertu de la présente loi prend effet à la date fixée dans l'acte de nomination, le cas échéant, indépendamment de la date de l'acte même. In the case of Ms.

Qureshi (and no one disputes that this was typical of the group in question) it was not until the letter of June 16, 1999 from the Department to Ms. Qureshi that an offer of appointment was made. The first paragraph starts out as follows: On behalf of the Department of Foreign Affairs and International Trade, I am pleased to offer an indeterminate appointment as a Foreign Service Officer, FSTP-01, with the Trade Commissioner Service. Your starting date is June 11, 1999. As mentioned before, that offer was formally signed as accepted by Ms. Qureshi.

The applicant has been unable to point to any other "instrument of appointment" which fixed any date, as required by

section 22 of the Public Service Employment Act . [ 15 ] I am therefore of the view that the Board applied the right principles of law in finding that Ms. Qureshi became an employee in the Public Service on June 11, 1999. [ 16 ] On the evidence, it was certainly open to the Board to consider that the "administrative and bureaucratic errors", which the applicant cites as evidence that de facto Ms.

Qureshi and her colleagues were employees, could not have the effect of making these candidates "employees", because of the legal propositions I have mentioned above, and because of the letters which met the legal requirements and which indicated the contrary. [ 17 ] The applicant made new submissions and presented new materials consisting of statutes, regulations, and policy statements to show that DEFAIT had no authority to arrange the language training as it did.

While I am doubtful that on judicial review these materials should be considered if not previously before the Board, I believe in any event they do not support the applicant's case. [ 18 ] Finally, the reasoning of the Board and its finding of fact that the candidates were not performing any of the duties of positions in the Foreign Service bargaining unit is not contested and I fail to see how in any event, the ab initio candidates could have been placed in that bargaining unit prior to their completion of language training. [ 19 ] The application will therefore be dismissed with costs. (s) "B.L. Strayer" J.A.

I agree

"Gilles Létourneau" J.A. I agree "B. Malone" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-27-02 STYLE OF CAUSE: Professional Association of Foreign Service Officer v. The Attorney General of Canada PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: February 26, 2003 REASONS FOR JUDGMENT BY: Strayer J.A. CONCURRED IN BY: Létourneau J.A. Malone J.A. DATED: March 26, 2003 APPEARANCES : Mr. David Yazbeck FOR THE APPLICANT Mr. Richard Fader FOR THE RESPONDENT SOLICITORS OF RECORD : Raven, Allen, Cameron & Ballantyne Ottawa, Ontario FOR THE APPLICANT Mr. Morris Rosenberg Deputy Attorney General of Canada FOR THE RESPONDENT