Public Service Alliance of Canada and Hubley et al. v. Parks Canada  Agency and Halifax Citadel Regimental Association

2009 PSLRB 176

  • Before: Ian R. Mackenzie
  • Decision Rendered: 2009-12-16
  • Original Language: English

An application for judicial review before the Federal Court is pending (Court file: T-74-10). An application for judicial review before the Federal Court of Appeal is pending (Court file: A-21-10).

Subject terms:

Determination of bargaining unit membership – Application under section 58 of the Public Service Labour Relations Act (PSLRA) – Individual grievances concerning pay administration – Whether grievors were employees within the meaning of the PSLRA – Objection to jurisdiction

The Public Service Alliance of Canada (PSAC) applied, as the bargaining agent for all employees at Parks Canada Agency (PCA), for a determination that a class of employees working at the Halifax Citadel National Historic Site were included in its bargaining unit – the employees in question were paid through the Halifax Citadel Regimental Association (HCRA) – since April 1, 1999, the PCA has been a separate employer listed under Schedule V of the Financial Administration Act – before 1999, it was part of the core public administration and appointments had to be made under the Public Service Employment Act (PSEA) by the Public Service Commission – the PSAC alleged that, while the grievors were paid by the HCRA, the PCA retained fundamental control over their employment – the PSAC also referred grievances to adjudication from individuals who alleged that they are or were employees of the PCA and that they were not paid in accordance with the pay administration article of the collective agreement between the PCA and the PSAC – the PCA objected to the jurisdiction of the Board to hear the application and grievances because the individuals in question did not meet the definition of employee and were not employed in the public service – the HCRA appeared as an intervenor to the application, and it also objected to the Board’s jurisdiction – the Tax Court of Canada had found in a separate case that the grievors had been employed in insurable employment by the PCA for 10 months in 2005 – the Board held that evidence was not required to rule on the narrow jurisdictional objection and that it was not necessary for it to make any assumptions of fact – the Tax Court decision was held not relevant because the consent judgment related to the definition of “employee” under legislation other than the PSLRA – the reasoning of the Supreme Court of Canada in Econosult was held to apply to the PCA – although the statutory formalities for appointing PCA employees were not as onerous as those contained in the PSEA, statutory requirements still had to be met to consider a person an employee – exclusive authority to appoint rested with the CEO of the PCA – the PSLRA does not contain a clause giving the Board the power to decide a question of whether a person is an employee – the grievances were also outside the Board’s jurisdiction since the individuals were not appointed under the statutory requirements – the objection to jurisdiction was allowed.

Application and grievances dismissed.