A-448-79
Catherine Le Borgne and Claudine Bujold
(Applicants)
v.
National Film Board and M. Falardeau-Ramsay
(Respondents)
Court of Appeal, Pratte and Le Dain JJ. and
Lalande D.J.—Montreal, October 29 and Novem-
ber 2, 1979.
Judicial review — Labour relations — Application to vacate
arbitral award made pursuant to Public Service Staff Rela
tions Act dismissing applicants' grievances challenging the
National Film Board's decision to cease employing them on
the termination of their contracts — Prior to written contracts,
applicants' contracts of employment were purely verbal —
Contention that the written contracts were invalid because they
were concluded without the participation of the union certified
to represent employees in the bargaining unit to which the
employees belonged contrary to s. 40(1)(a)(i) of the Public
Service Staff Relations Act — Whether or not the arbitrator
was correct in holding that the applicants had been hired for a
specific term — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, s. 28 — Public Service Staff Relations Act, R.S.C. 1970,
c. P-35, s. 40(1)(a)(i).
APPLICATION for judicial review.
COUNSEL:
Mortimer G. Freiheit for applicants.
J. C. Demers for respondents.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for applicants.
Deputy Attorney General of Canada for
respondents.
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: Applicants formerly worked for the
National Film Board. They are here seeking to
have an arbitral award made pursuant to the
Public Service Staff Relations Act, R.S.C. 1970,
c. P-35, vacated. That decision dismissed the two
grievances which they submitted as a challenge to
the decision of the Board to cease employing them
after November 11, 1977.
Both applicants began working for the Board in
1975. Their contract of employment was purely
verbal: they were paid every week as if they had
been suppliers of goods, on signature of receipts
describing the services rendered during the week
and indicating their cost. Early in May 1977, this
situation came to an end. Each of the two appli
cants then concluded with the Board a new con
tract, expressed in writing, under which their ser
vices were retained for a specific period, ending on
November 11, 1977. In the following October, the
Board warned applicants that their contracts of
employment would not be renewed when they
expired. Each applicant then submitted a griev
ance challenging this decision. It is these two
grievances which the decision a quo dismissed.
There is no need to re-state here the entire
argument of counsel for the applicants. At the
hearing, he agreed that the success of his appeal
depends on the reply that must be made to the
following question: was the arbitrator correct in
holding that both applicants had been hired for a
specific term ending on November 11, 1977?
According to counsel for the applicants, the
arbitrator erred in holding that applicants had
been hired for a fixed term. He maintained that
the two contracts of employment for a specific
term, concluded in May 1977, were void, and that
because of this the arbitrator should have ignored
them. He contended that the invalidity of these
two contracts of employment resulted from the
fact that they were concluded by the Board and
applicants without the participation of the union
certified to represent employees in the bargaining
unit to which applicants belonged. By thus nego
tiating and concluding these contracts of employ
ment for a specific term, applicants and the Board
allegedly contravened section 40(1)(a)(i) of the
Public Service Staff Relations Act, which gives a
certified employee organization the exclusive right
to bargain collectively on behalf of employees in the bargaining
unit and to bind them by a collective agreement ...
In my view, this argument must be dismissed.
The exclusive right enjoyed by a certified union
under section 40(1)(a)(i) is to negotiate and con-
dude a collective agreement. Here, the parties did
not usurp this right of the certified union, since
they neither negotiated nor concluded a collective
agreement. What they did was to terminate
individual contracts of employment for unspecified
terms and replace them with new contracts of
employment for specified terms. The only obliga
tion imposed on them by the Act regarding the
conclusion of the contracts was that the latter
should not contain working conditions different
from those contained in the collective agreement
then in effect. This obligation was observed by the
parties. The collective agreement stipulated noth
ing regarding the length of the contracts of
employment, and it applied to employees hired for
a fixed term as well as to those hired for an
indefinite time.
For these reasons, I would dismiss the
application.
* * *
LE DAIN J. concurred.
* *
LALANDE D.J. concurred.
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.