Judgments

[2000] 4 F.C. 98

A-275-98

Attorney General of Canada (Appellant)

v.

Irène Marinos (Respondent)

and

The Public Service Alliance of Canada (Respondent)

Indexed as: Canada (Attorney General) v. Marinos (C.A.)

Court of Appeal, Desjardins, Létourneau and Rothstein JJ.A.—Ottawa, February 1 and March 10, 2000.

Public Service — Jurisdiction — Appeal from Motions Judge’s dismissal of application for judicial review of adjudicator’s decision respondent Marinos, employee, within adjudicator’s jurisdiction to hear grievance — Marinos appointed to position pursuant to PSEA, s. 21.2 permitting appointments for periods not exceeding 90 days, providing PSEA not applicable to such employees — Signing three consecutive contracts of employment for 90 days — Grieving termination of employment for disciplinary reasons — Under PSSRA, s. 92 only “employee” entitled to refer grievance to adjudication — S. 2(1) definition of “employee” excluding persons employed on casual basis (par. (g)) — Adjudicator holding s. 21.2 irrelevant, looking to factual circumstances to hold respondent not employed on casual basis — Since “on a casual basis” not defined in PSSRA, must refer to PSEA, s. 21.2 — Heading, “Casual Employment” used to clarify interpretation of s. 21.2 — S. 21.2 creating category of casual employees discrete from those already in existence i.e. term, indeterminate, probationary — As casual employee under s. 21.2, Marinos employed on casual basis under PSSRA, not having right to grieve — Adjudicator’s decision set aside for want of jurisdiction.

Construction of statutes — Meaning of “on a casual basis” in par. (g) exception to s. 2(1) definition of “employee” in Public Service Staff Relations Act — Whether interpreted in light of Public Service Employment Act, s. 21.2 or having regard to factual circumstances — S. 21.2 permitting appointments for periods not exceeding 90 days, providing PSEA not applicable to such employees — Nothing in s. 21.2 indicating those employed pursuant to that section casual employees, except heading, marginal note: “Casual employment” — Ambiguity in PSEA, s. 21.2 when read with heading — Interpretation Act not covering headings, but S.C.C. holding must be considered in determining meaning, application of provision — Inconsistencies in French version of s. 21.2; using different terms where English using same term — Violation of rule same word in English should be translated by same word in French — Application of principle favouring consistent version — Heading clarified s. 21.2 — In adopting PSEA, s. 21.2 Parliament creating discrete category of casual employees — As employee appointed under PSEA, s. 21.2, respondent employed on casual basis under PSSRA, s. 2(1)(g).

Administrative law — Judicial review — Certiorari — Standard of review — Appeal from Motions Judge’s dismissal of application for judicial review of adjudicator’s decision respondent employee, within adjudicator’s jurisdiction to hear grievance — Motions Judge erred in using test of patent unreasonableness — Appropriate standard of review correctness — Determination of whether respondent “employee” within PSSRA, s. 92 (only employee having right to grieve), requiring examination of par. (g) exclusion of persons employed “on a casual basis” from s. 2(1) definition of “employee” — Question concerned legislative provision limiting tribunal’s powers — In such case mere error causing tribunal to lose jurisdiction, subjecting tribunal to judicial review — PSSRA, s. 2(1)(g) making it clear “on a casual basis” connoting application of legal standards impacting on adjudicator’s jurisdiction — Adjudicator must refer to PSEA, governing employment contracts herein — Not having expertise in interpretation of PSEA, PSSRA, since PSSRA not giving adjudicator exclusive jurisdiction to determine who is employed “on a casual basis”.

This was an appeal from the Motions Judge’s dismissal of an application for judicial review of the adjudicator’s decision that she had jurisdiction to hear respondent Marinos’ grievance. Irène Marinos was appointed pursuant to Public Service Employment Act (PSEA), subsection 21.2(1) as a correctional officer. Subsection 21.2(1) permits the appointment of a person for a period not exceeding 90 days. Subsection 21.2(2) provides that a person appointed under subsection 21.2(1) may not work in the Public Service for more than 125 days in any year. Subsection 21.2(3) provides that the PSEA shall not apply to such employees. The heading preceding section 21.2 is “Casual Employment” and the marginal note beside subsection 21.2(1) is “Casual employment”. Marinos signed three consecutive contracts of employment, each covering a 90-day period, and specifying that they were for “un emploi temporaire”. Her employment was terminated for disciplinary reasons on July 17, 1996. The grievance of her termination was denied at the first level on the ground that Marinos was employed on a casual basis and did not have the right to grieve. She referred her grievance to adjudication. Under PSSRA, subsection 92(1), only an “employee” is entitled to refer a grievance to adjudication. The definition of “employee” under the PSSRA, subsection 2(1) excludes from the definition of “employee” persons employed “on a casual basis”. In determining whether the respondent was an employee pursuant to Public Service Staff Relations Act (PSSRA), subsection 2(1), and thus whether she had jurisdiction to hear the grievance, the adjudicator found that PSEA, section 21.2 was irrelevant. She had regard to the factual circumstances of the respondent’s employment and, in particular, to the regularity and continuity of her work. The adjudicator found that the respondent was not “a person employed on a casual basis” and was entitled to grieve her dismissal under the PSSRA.

The issues were: (1) what was the appropriate standard of review which should have guided the Motions Judge in deciding the application; and (2) whether a person appointed pursuant to PSEA, section 21.2 is by definition a person employed on a casual basis for purposes of the PSSRA.

Held (Rothstein J.A. dissenting), the appeal should be allowed.

Per Desjardins J.A. (Létourneau J.A. concurring): (1) The Motions Judge erred in using the test of patent unreasonableness in his appreciation of the adjudicator’s decision. The appropriate standard of review was correctness. The adjudicator had to determine whether Marinos was an “employee” within the meaning of section 92 and for this purpose she had to look at the definition of “employee”. That question concerned a legislative provision “limiting the tribunal’s powers”. In such a case a mere error will cause a tribunal to lose jurisdiction and subject the tribunal to judicial review. PSSRA, paragraph 2(1)(g) makes it clear that “on a casual basis” connotes the application of legal standards which will have an effect on the jurisdiction of the adjudicator. The adjudicator is under an obligation to look outside her “home territory” and refer to the PSEA, which governed the contracts. The adjudicator cannot claim an expertise in the interpretation of the PSEA or with regard to PSSRA, since there is no provision in the PSSRA which gives her exclusive jurisdiction to determine who is employed “on a casual basis”. The adjudicator can make no error of law at this point. She must be correct.

(2) Since there is no definition of the words “on casual basis” in the PSSRA, reference must be had to the PSEA, section 21.2 pursuant to which Marinos was appointed.

Marginal notes form no part of an enactment, but are inserted for convenience of reference only. Headings are not covered by the Interpretation Act, but the Supreme Court of Canada has held that they must be taken into consideration to discuss the meaning and application of a provision. Except for the heading of section 21.2 of the PSEA, “Casual Employment”, and for the marginal note next to subsection 21.2(1), “Casual employment”, nothing in the body of PSEA, section 21.2 indicates that those employed pursuant to that section are necessarily casual employees. There is therefore some ambiguity in the interpretation of section 21.2 of the PSEA when read with its headings.

There are a number of inconsistencies in the French version of section 21.2. The French version uses “emploi temporaire” as a heading before section 21.2, “personnel temporaire” as a marginal note to section 21.2(1) where the English version uses “casual employment” both times. The French uses “employée à titre occasionnel” in the substantive part of the PSSRA where the English version uses “on a casual basis”. The drafter of the French version violated the rule that the same word in English should be translated by the same word in French, considering that the English version is constant. But the application of the principle which favours the version which is consistent raises the question of the weight to be given to the heading in the interpretation of the section itself. The heading cannot be ignored. It clarifies the provision. Parliament intended to cover “casual employment” only in adopting PSEA, section 21.2. It created a category of employment discrete from those already in existence, i.e. term, indeterminate and probationary. That category is casual employment, and Marinos’ employment fell within that category.

The purpose of the 1992 amendment to PSSRA, paragraph (g) of the subsection 2(1) definition of “employee” was to make the paragraph consistent with PSEA, section 21.2.

Being a casual employee under section 21.2 of the PSEA, Marinos was, under the PSSRA, employed “on a casual basis”. Marinos therefore had the status of a casual employee when she was hired, but as to whether she maintained that status during the three contracts, since the respondent’s alternative argument that Marinos was in fact employed for a period exceeding 90 days and the three separate contracts were a legal fiction was not made before the adjudicator, the court, sitting on an appeal of a judicial review application, could not make a finding of fact which only the adjudicator could have made, had the argument been submitted to her in a timely fashion.

Per Rothstein J.A. (dissenting): (1) At issue was a fundamental legal question that will have important precedential value. The legal question did not involve the expertise of the adjudicator since there is no applicable privative clause. The interpretation of “employee” in PSSRA subsection 2(1) has previously been found to involve a reviewable question of jurisdiction. Applying a functional and pragmatic approach, the standard of review was correctness.

(2) PSEA, section 21.2 does not inform the meaning of the words “a person employed on a casual basis” for the purposes of the PSSRA. A determination of whether a person was employed on a casual basis must be made on an assessment of the facts surrounding the employment. That the employment was pursuant to section 21.2 is but one factor to be considered.

Section 21.2 defines a separate category of employment, namely those appointed under that provision for 90 days or less and who are not employed in the Public Service for more than 125 days in a year. Parliament intended that with respect to such employees, the Government should not have to comply with other provisions of the PSEA, such as adherence to the merit principle of appointment, as such compliance was considered unnecessary in respect of such short-term employees. There is therefore a purpose to the provision in its own terms, without calling such employment “casual employment”. There is no reason why it is necessary to construe section 21.2 as defining “casual employment” for any purpose of the PSEA.

Section 21.2 is not ambiguous in its terms. Although the heading states “Casual Employment”, section 21.2 does not use the words “casual”, “casual employment”, or “casual employee”. The heading cannot be read as if it was part of section 21.2 or to create ambiguity in an unambiguous provision. Thus, section 21.2 does not provide a definition of casual employment in the PSEA.

Nor is there any indication in section 21.2 that suggests that it was Parliament’s intention to have the provision apply to the PSSRA. The intended purpose of section 21.2 was to exclude other provisions of the PSEA from applying to persons appointed under subsection 21.2(1). Parliament clearly put its mind to the scope of section 21.2 and made no reference to excluding application of the PSSRA to persons appointed under section 21.2, although it would have been simple to do so. The fact that a person is appointed for a limited period of time under section 21.2 is not equivalent to employment on a casual basis, as that term has been interpreted by the courts. In deciding what constitutes casual employment the courts have looked at the substance, not only the duration, of the employment. The exclusion of a person employed on a casual basis from the status of employee for the purposes of the PSSRA has existed since 1967. Prior to the enactment of section 21.2 of the PSEA in 1992, the question of whether a person was employed on a casual basis was decided by a board of adjudication based on the facts relevant to the person’s employment. Had Parliament, in the PSEA, intended to displace these many considerations by one consideration only — the short duration of the employment — for purposes of determining who is a “a person employed on a casual basis” for purposes of the PSSRA, it would have couched section 21.2 as a definitional term and would have made an express reference to the PSSRA.

There is no express linkage in either statute. Although the two Acts are both part of legislation which governs the relationship between employees and the federal government, it would be particularly inapt to use a section of one Act to explain the meaning of a term in another when the only connection between the two is a similarity in wording between a heading in the former Act and the words of the term in the latter Act. That would also be especially inappropriate here because if Parliament had intended that section 21.2 was to define a “person employed on a casual basis” for purposes of the PSSRA, it would surely have used the same terminology in the heading preceding section 21.2, as it did in the definition of “a person employed on a casual basis” in the PSSRA. It did not do so, although the very enactment in which section 21.2 was introduced, also amended paragraph (g) of the definition of “employee”, the casual employment exclusion in the PSSRA. Parliament was looking at both provisions at the same time but made no effort to use the same French language in the heading to section 21.2 in the PSEA and the words in paragraph (g) of the definition of “employee” in the PSSRA. Had Parliament only intended to make paragraph (g) consistent with paragraph 21.2 by amending paragraph (g) of the definition of “employee”, it would surely have said so as it was amending both the PSSRA and the PSEA at the same time. By leaving the duration of the employment out of the definition of “casual employment” in paragraph (g) it is more likely that Parliament was leaving it to a factual assessment of the circumstances of the employment by an adjudicator to determine if the employment was casual.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Interpretation Act, R.S.C., 1985, c. I-21, ss. 12, 13, 14.

Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, s. 13.

Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 2(1) “employee”, (2), 5, 8, 21.2 (enacted by S.C. 1992, c. 54, s. 16), 24, 25, 28 (as am. idem, s. 18).

Public Service Reform Act, S.C. 1992, c. 54.

Public Service Staff Relations Act, R.S.C., 1985, c. P-35, ss. 2(1)(g) “employee” (as am. by S.C. 1992, c. 54, s. 32), (2) (as enacted idem), 92(1).

CASES JUDICIALLY CONSIDERED

APPLIED:

Komo Construction Inc. et al. v. Commission des Relations de Travail du Québec et al., [1968] S.C.R. 172; (1967), 1 D.L.R. (3d) 125; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; (1988), 35 Admin. L.R. 153; 95 N.R. 161; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 11 Admin. L.R. (3d) 1; 43 Imm. L.R. (2d) 117; 226 N.R. 201; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; (1984), 9 D.L.R. (4th) 161; 11 C.C.C. (3d) 481; 53 N.R. 169; 3 O.A.C. 321.

CONSIDERED:

Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; (1991), 80 D.L.R. (4th) 520; 48 Admin. L.R. 161; 91 CLLC 14,017; 123 N.R. 161; Roussy v. Minister of National Revenue (1992), 148 N.R. 74 (F.C.A.); Miln-Bingham Printing Co. Ltd. v. The King, [1930] S.C.R. 282; [1930] 2 D.L.R. 263.

REFERRED TO:

Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th) 1; 71 C.P.R. (3d) 417; 209 N.R. 20; Canada Post Corp. v. C.U.P.W., [1989] 1 F.C. 176 (1987), 46 D.L.R. (4th) 716; 88 CLLC 14,006; 82 N.R. 249 (C.A.); Skoke-Graham et al. v. The Queen et al., [1985] 1 S.C.R. 106; R. v. Davis, [1999] 3 S.C.R. 759; (1999), 179 D.L.R. (4th) 385; 139 C.C.C. (3d) 193; 29 C.R. (5th) 1; 248 N.R. 44.

AUTHORS CITED

Beaupré, Rémi Michael. Interpreting Bilingual Legislation, 2nd ed. Toronto: Carswell, 1986.

Canada. Treasury Board Manual. Personnel Management: Compensation, c. 1-1, Appendix A. Ottawa: Supply and Services Canada, 1996.

APPEAL from the Motions Judge’s dismissal of an application for judicial review (Canada (Attorney General) v. Marinos (1998), 150 F.T.R. 20 (F.C.T.D.)) of the adjudicator’s decision that respondent Marinos’, appointed for three consecutive 90-day periods under Public Service Employment Act, section 21.2, was not employed “on a casual basis” and thereby excluded from the Public Service Staff Relations Act definition of “employee” (Marinos and Treasury Board (Solicitor General Canada — Correctional Service), [1997] C.P.S.S.R.B. No. 47 (QL)). Appeal allowed (Rothstein J.A. dissenting).

APPEARANCES:

André Garneau, Q.C. and Harvey A. Newman for appellant.

Andrew J. Raven for respondent, The Public Service Alliance of Canada.

SOLICITORS OF RECORD:

Deputy Attorney General of Canada for appellant.

Raven, Allen, Cameron & Ballantyne, Ottawa, for respondent, The Public Service Alliance of Canada.

The following are the reasons for judgment rendered in English by

[1]        Desjardins J.A.: The issue in this appeal relates to the meaning to be given to the words “on a casual basis” in paragraph 2(g) [Editor’s Note: Section 2 was renumbered subsection 2(1) by S.C. 1992, c. 54, s. 32. The reference to “paragraph 2(g)” is to paragraph (g) of the definition of “employee” in subsection 2(1)] of the Public Service Staff Relations Act[1] (the PSSRA). Specifically, the question is whether these words should be interpreted in light of section 21.2 of the Public Service Employment Act[2] (the PSEA) or whether they should be interpreted without the assistance of that provision and exclusively having regard to ordinary labour law.

[2]        In her decision dated April 30, 1997 [[1997] C.P.S.S.R.B. No. 47 (QL)], an adjudicator and member of the Public Service Staff Relations Board (the PSSRB) reverted exclusively to ordinary labour law in interpreting these words and accepted jurisdiction under section 92 of the PSSRA to hear a grievance. The Motions Judge dismissed the application for judicial review [(1998), 150 F.T.R. 20].

[3]        The relevant legislative provisions are the following:

Public Service Staff Relations Act

2. (1) In this Act,

…

“employee” means a person employed in the Public Service, other than

…

(g) a person employed on a casual basis,

…

92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, …

…

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication. [Emphasis added.]

Public Service Employment Act

2. (1) …

…

“employee” means a person employed in that part of the Public Service to which the Commission has the exclusive right and authority to appoint persons;

…

5. The Commission shall

(a) appoint or provide for the appointment of qualified persons to or from within the Public Service in accordance with the provisions and principles of this Act;

Section 21.2 of the PSEA must, for its part, be reproduced with its heading and marginal notes. It reads:

Casual Employment

Casual employment

21.2 (1) Notwithstanding any other provision of this Act, the Commission may appoint any person to the Public Service for a period not exceeding ninety days.

Restriction

(2) No person appointed under subsection (1) may work in any particular department, or in any other particular portion of the Public Service, on more than one hundred and twenty-five days in any year.

Application of Act

(3) The provisions of this Act, other than this section, do not apply to a person who is appointed under subsection (1).

Term appointment unaffected

(4) Nothing in this section derogates from any other authority of the Commission to appoint persons to or from within the Public Service for specified periods not exceeding ninety days.

[4]        The respondent Irène Marinos was appointed pursuant to subsection 21.2(1) of the PSEA to fill one of the positions of correctional officers in the CX group created by Treasury Board for employment in the Correctional Service of Canada at the Cowansville Institution in Cowansville, Quebec. She signed three consecutive contracts of employment, each covering a 90-day period, from January 5, 1996 to April 3, 1996, from April 4, 1996 to July 3, 1996, and from July 3, 1996 to September 30, 1996. The three contracts specified that they were for “un emploi temporaire”.[3]

[5]        Each offer of employment included the following terms:[4]

This appointment is not subject to the provisions of the Public Service Employment Act. This means, notably, that you will not qualify for internal competitions and will not be entitled to file a grievance during this period of employment. Moreover, the Act specifies that a person may be appointed as an employee temporarily for a period of not more than ninety (90) days and may not work in the same department for more than one hundred and twenty-five (125) working days within a twelve (12) month period. [Emphasis added.]

[6]        Ms. Marinos was an employee “on call”. She worked a total of 115 days between January 5, 1996 and July 8, 1996. Her employment was terminated for disciplinary reasons on July 17, 1996.[5] Her last day of work was July 18, 1996. She grieved her termination. It was denied at the first level following a statement by the employer that she was a person employed on a casual basis and did not have the right to grieve. She referred her grievance to adjudication. The employer objected on the basis that Ms. Marinos fell within the exception provided under paragraph 2(g) of the PSSRA, because she was a person “employed on a casual basis”, since her contracts came under the provisions of section 21.2 of the PSEA. Consequently, she could not grieve under the collective agreement and under section 92 of the PSSRA since she was not an “employee” under that Act. Ms. Marinos’ position, on the other hand, was that she was a person who had been employed in the Public Service for a period of more than three months and was, therefore, an employee pursuant to paragraph 2(g) of the definition of “employee” under the PSSRA. She argued that her position would have continued indefinitely had the employer not terminated her employment unjustly.

[7]        The adjudicator accepted her position and rejected the employer’s objection on the following basis:[6]

We must give to the expression “on a casual basis” as provided under paragraph (g) of the definition of employee under the PSSRA its normal meaning. We must look at this expression as it is understood in normal labour relations language. The statute under which an adjudicator draws his or her jurisdiction is the PSSRA. It is the statute under which I have to decide the issue in dispute. Section 21.2 of the Public Service Employment Act has no relevance to the matter in dispute unless the Public Service Employment Act can assist me in the interpretation of the expression “on a casual basis” as defined by the PSSRA. I have reviewed the Public Service Employment Act and I find that nowhere in that statute is the expression “on a casual basis” defined.

…

I do not believe that the heading and marginal note referring to “casual employment” in section 21.2 of the Public Service Employment Act can by themselves alter the meaning of employee as defined in the PSSRA and, in particular, of paragraph (g) of the definition. I must therefore review the common understanding and interpretation by our labour boards and courts as to the meaning of “on a casual basis” contained in paragraph (g) of the definition of “employee” in section 2 of the PSSRA.

Under the Canada Labour Code, the Canada Labour Relations Board found that the proper criterion for inclusion of casual employees in a bargaining unit is not the number of hours worked but the regularity of employment. (See The 1996 Annotated Canada Labour Code by Ronald M. Snyder, at page 104, referring to subsection 27(2) of the Canada Labour Code—Casual part-time employees.) In Guislaine Otis (1987, 72 di 7), the Canada Labour Relations Board decided that a casual, as opposed to a part-time employee, is one who performs unforeseen work which the employer needs done. What is considered is the regularity of the work ….

…

In cases such as Ms. Marinos’ where the employer alleges that the person has been employed on a casual basis, the adjudicator must review the facts to determine whether the evidence does support such an allegation. Ms. Marinos was hired as a correctional officer. The employer hired her pursuant to the provisions of the Public Service Employment Act to fill one of the positions classified in the CX group falling under the Treasury Board as the employer: Canada (A.G.) v. PSAC (Econosult) [1991] S.C.R. 614.

The issue to be decided is one of fact. Does the evidence substantiate the employer’s allegation that Ms. Marinos was employed on a casual basis. In my opinion, the evidence does not support such an allegation. Even though, Messrs. Mercier and Roy were instructed to call her a couple of hours before the start of her shift and the employer decided not to employ such “casuals” for more than 125 days in any year, the reality is that Cowansville Institution has a chronic need for correctional officers. The evidence is to the effect that there is a consistent lack of at least seven correctional officers. Ms. Marinos’ services were used regularly during her seven months’ service. The employer knew and could foresee the shortage of correctional officers. Ms. Marinos and Mr. Mercier testified in this regard. Mr. Mercier was not permitted to inform Ms. Marinos when her next shift would be even though he knew in advance that she would be called. In addition, the employer issued her a uniform and required her to be available 24 hours per day. She was expected not to refuse a call to work. She had to be available at all times. The evidence has also demonstrated that her services were not used for short periods. She worked an average of 18 days a month during a continuous period of more than six months. Therefore, her services were needed on a regular basis. The three offers of employment were automatically renewed and her employment was continuous. At no time did she have a break of five days or more. She even accumulated sick leave credits during her period of employment as provided under the relevant collective agreement.

For all these reasons, I find that Ms. Marinos was an employee under the PSSRA and she therefore had the right to present a grievance and refer it to adjudication under subsections 91(1) and 92(1) of the PSSRA.

1.         The Standard of Review

[8]        One must first determine the proper standard of review which should have governed the Motions Judge in deciding the application before him. Was he right in using the test of patent unreasonableness in his appreciation of the adjudicator’s decision? For the reasons that follow, I conclude that the test was one of correctness.

[9]        The adjudicator stated that the issue before her was one of facts. This could not be so. The issue before her was a mixed question of fact and law since she had to decide whether the facts before her satisfied the legal tests.[7]

[10]      The adjudicator had to determine whether the respondent was an “employee” pursuant to paragraph 2(g) of the PSSRA so as to decide whether she had jurisdiction to hear the grievance under the collective agreement and under section 92 of the PSSRA. In coming to an understanding of the proper meaning to be given to the words: “‘employee’ means a person employed in the Public Service, other than … a person employed on a casual basis”, the adjudicator had to go outside the PSSRA and consider the statute which governed the contract signed by Ms. Marinos. That contract was signed under the authority given to the Commission pursuant to section 21.2 of the PSEA.

[11]      The adjudicator looked at section 21.2 of the PSEA. She, however, found it irrelevant since she felt it was of no assistance to her in the interpretation of section 2 of the PSSRA. She then considered the meaning of the words “on a casual basis” in light of labour relations law.

[12]      Considering the pragmatic and functional approach, the issue before us is whether section 2 of the PSSRA involves a jurisdictional question, and if so, what is the proper test to be applied.

[13]      The Public Service Alliance of Canada (the Alliance), which is also a respondent in this case, does not dispute that the opening words of section 2 of the PSSRA, namely the words “a person employed in the Public Service”, involve a jurisdictional question. This, it concedes, was decided by the Supreme Court of Canada in Canada (Attorney General) v. Public Service Alliance of Canada.[8] But, says the Alliance, this does not apply to the exceptions to paragraph (2) which involve essentially questions of fact.

[14]      One cannot, in my view, sever paragraph 2(g) in such a way. That paragraph, as a whole and by its wording, “describes, lists and limits” the powers of the PSSRB; it is [translation] “intended to circumscribe the authority” of that tribunal, as Pigeon J. said in Komo Construction Inc. et al. v. Commission des relations de travail du Québec et al.[9]

[15]      The adjudicator was called upon to determine whether Ms. Marinos was an “employee” within the meaning of section 92 of the PSSRA, and for this purpose she had to look at the definition of “employee” under paragraph 2(g) of the Act. Under the principles set out in U.E.S., Local 298 v. Bibeault, the question at issue concerned a legislative provision “limiting the tribunal’s powers”.[10] In such a case, “a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review”.[11] In Pushpanathan v. Canada (Minister of Citizenship and Immigration),[12] Bastarache J., for the Court, stated the standard in the following terms:

Although the language and approach of the “preliminary”, “collateral” or “jurisdictional” question has been replaced by this pragmatic and functional approach, the focus of the inquiry is still on the particular, individual provision being invoked and interpreted by the tribunal. Some provisions within the same Act may require greater curial deference than others, depending on the factors which will be described in more detail below. 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.

[16]      A reading of paragraph 2(g) of the PSSRA makes it clear that the words “on a casual basis” connote the application of legal standards which will have an effect on the jurisdiction of the adjudicator. The adjudicator is under an obligation to look outside her “home territory”[13] and refer to the PSEA which governs Ms. Marinos contracts. The adjudicator can claim no expertise in the interpretation of the PSEA, nor can she claim any with regard to the PSSRA, since there is no provision in the PSSRA which gives her exclusive jurisdiction to determine who is employed “on a casual basis”.[14] The adjudicator can make no error of law at this point. She has to be correct.

2.         The Legislative Scheme

[17]      The only contention before the adjudicator was whether Ms. Marinos was a person employed in the Public Service “on a casual basis” within the definition of the word “employee” in subsection 2(2) of the PSSRA. The appellant conceded that Ms. Marinos was a person “employed in the Public Service” according to the opening words of section 2 of the Act.

[18]      Since there is no definition of the words “on a casual basis” in the PSSRA, reference must be had to the PSEA, which sets out the provision under the authority of which Ms. Marinos was appointed.

[19]      Employment in the Correctional Service of Canada, that portion of the Public Service to which the respondent was appointed, is governed by the PSEA. That Act, in section 8, establishes that the Public Service Commission has the exclusive right to make or authorize appointments to that portion of the Public Service. The Act also provides for the period during which a person is employed. For example, sections 8, 24 and 25 provide for and refer to employment for an indeterminate period or for a specified period (term appointments). Moreover, sections 8 and 28 [as am. by S.C. 1992, c. 54, s. 18] authorize the Commission to establish probationary periods. Different employment rights accrue under the PSEA and other related Acts, including the PSSRA, depending on whether a person is a probationary, term or indeterminate employee. In 1993, with the passing of amendments to the PSEA under the Public Service Reform Act,[15] Parliament established a new employment provision in section 21.2 of the PSEA under the heading “Casual Employment” (”Emploi temporaire”).

[20]      Generally speaking, a casual employee is someone who works “on call”. A term employee is someone who works full time for a specified period.

[21]      The Guidelines on casual employment[16] tell us that casual employment is used solely for short periods of time to, for example,

•€€€€€€ meet unforeseen needs,

•€€€€€€ meet emergencies,

•€€€€€€ replace employees for short periods of absences such as vacation leave, sick leave, training etc.,

•€€€€€€ conduct projects that are anticipated but dependent on the availability of funds.

Casual employment is not used

•€€€€€€ instead of determinate, seasonal or part-time employment,

•€€€€€€ to avoid security screening or to impose an additional probationary period.

[22]      Ms. Marinos’ contracts of employment were signed pursuant to this new section 21.2 of the PSEA.

[23]      The appellant and the Alliance interpret this section differently.

[24]      The appellant claims that, at all times, the appointments offered to Ms. Marinos were each for a 90-day period and that she worked a total of 115 days over the course of her three appointments. She was appointed under section 21.2 which sets out specific limits for “casual” employment and prescribes that the other provisions of the PSEA do not apply to such employees. Being a “casual” employee under the PSEA, she is excluded from the definition of “employee” under the PSSRA, because she has been employed “on a casual basis”. The result, says the appellant, is that the grievance process under section 92 of the PSSRA is not applicable to Ms. Marinos.

[25]      The Alliance claims that there is nothing in the scheme of the Public Service employment legislation which would lead to a conclusion that, having been appointed pursuant to section 21.2 of the PSEA, a person is automatically excluded under the PSSRA.

[26]      The PSEA, it says, provides for the legal basis for staffing actions in the Public Service. Even without section 21.2 of the PSEA, it was open to the Public Service Commission to make appointments on a casual basis pursuant to its general appointment authority provided for by section 8 of the PSEA, a power which is preserved by subsection 21.2(4) of that Act. The main purposes of section 21.2 are to place specific limitations on the duration of section 21.2 appointments, whether casual or others, and to exclude section 21.2 appointments from the full scope of PSEA protections as provided in subsection 21.2(3). The PSSRA by contrast, says the Alliance, approaches the issue of casual employment from a different perspective. As labour relations legislation, it is concerned not with the legal basis for employment but with the type of employee who may be subject to collective bargaining in the Public Service. Parliament intended to approach the issue of casual employment from a different perspective in each piece of legislation. This is apparent, it says, when one compares the French version of section 2 of the PSSRA to the French version of section 21.2 of the PSEA.

[27]      In the case of paragraph 2(g) of the PSSRA, the Alliance says Parliament has used the words “à titre occasionnel”, which are roughly equivalent to the English “occasional”, to translate the expression “on a casual basis”. By contrast and without accepting that headings are determinative, the heading above the French version of section 21.2 of the PSEA uses the word “temporaire” (”Emploi temporaire”), which is roughly equivalent to “temporary”. These differences, the Alliance says, indicate that the main purpose of the PSEA relates to the duration of appointments, whether casual or others, whereas the main purpose of the PSSRA relates to the substance of casual employment. Accordingly, it says, while section 21.2 of the PSEA may, in part, provide the authority to make casual appointments, adjudicators appointed under the PSSRA have an independent jurisdiction and are obliged to determine whether any particular employee, which has already been appointed, is in fact employed on a casual basis.

[28]      It is trite law that contrary to preambles which “shall be read as a part of the enactment intended to assist in explaining its purport and object”[17], marginal notes form “no part of the enactment, but are inserted for convenience of reference only”.[18] Headings on the other hand are not covered by the Interpretation Act. The Supreme Court of Canada has however held that headings must be taken into consideration to discuss the meaning and application of a provision. The principles stated by Estey J. in Law Society of Upper Canada v. Skapinker,[19] in the context of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], were said to apply to statutes.[20] What Estey J. said is the following:

At the very minimum, the Court must take them [headings] into consideration when engaged in the process of discerning the meaning and application of the provisions of the Charter. The extent of the influence of a heading in this process will depend upon many factors including (but the list is not intended to be all-embracing) the degree of difficulty by reason of ambiguity or obscurity in construing the section; the length and complexity of the provision; the apparent homogeneity of the provision appearing under the heading; the use of generic terminology in the heading; the presence or absence of a system of headings which appear to segregate the component elements of the Charter; and the relationship of the terminology employed in the heading to the substance of the headlined provision. Heterogeneous rights will be less likely shepherded by a heading than a homogeneous group of rights.

At a minimum the heading must be examined and some attempt made to discern the intent of the makers of the document from the language of the heading. It is at best one step in the constitutional interpretation process. It is difficult to foresee a situation where the heading will be of controlling importance. It is, on the other hand, almost as difficult to contemplate a situation where the heading could be cursorily rejected although, in some situations, such as in the case of “Legal Rights” which in the Charter is at the head of eight disparate sections, the heading will likely be seen as being only an announcement of the obvious.

For the purpose of examining the meaning of the two paragraphs of s. 6(2), [of the Charter] I conclude that an attempt must be made to bring about a reconciliation of the heading with the section introduced by it. If, however, it becomes apparent that the section when read as a whole is clear and without ambiguity, the heading will not operate to change that clear and unambiguous meaning. Even in that midway position, a court should not, by the adoption of a technical rule of construction, shut itself off from whatever small assistance might be gathered from an examination of the heading as part of the entire constitutional document. This general approach I take to be consonant with the thinking expressed in the Canadian, British and United States authorities and texts discussed above. [Emphasis added.]

[29]      Except for the heading of section 21.2 of the PSEA, which reads “Casual Employment” (“Emploi temporaire”) and for the marginal note next to subsection 21.2(1), which says “Casual employment” (“Personnel temporaire”), there is nothing in the body of section 21.2 of the PSEA which indicates that those employed pursuant to that section are necessarily casual employees. In view of the headings of the two versions, which cover different concepts, one is puzzled by the scope of the provision itself. There is therefore some ambiguity in the interpretation of section 21.2 of the PSEA when read with its headings, English (“Casual Employment”) and French (“Emploi temporaire”). The question is whether section 21.2 of the PSEA creates a discrete category of employees, the casual employees, or whether it simply empowers the Commission to appoint casual employees or others, with the restriction that the PSEA does not apply to them.

[30]      There are a number of inconsistencies in the French version of section 21.2 itself. The heading reads “Emploi temporaire” while the marginal note of subsection 21.2(1) reads “Personnel temporaire”. These two are obviously interchangeable since the English version uses the same word both times: i.e. casual employment. The marginal note next to subsection 21.2(4) reads “Nomination à terme”. It preserves the authority of the Commission to make appointments governed by section 25 of the PSEA. The marginal note of section 25 of the PSEA reads “Nomination pour une période déterminée” and not “Nomination à terme”. The English version on the other hand is consistent. It uses the same words in both subsection 21.2(4) and section 25 of the PSEA, namely “Term appointments”.

[31]      Looking at both statutes, the PSEA and the PSSRA, the question becomes whether the French version which uses sometimes “emploi temporaire” as a heading, “personnel temporaire” as a marginal note or “employée à titre occasionel” in the substantive part of the PSSRA can detract from the ordinary meaning of the words used in the English version of these statutes where “casual employment” and “on a casual basis” are constant.

[32]      It is clear that the person who wrote the French version took much liberty in his or her handling of words, violating the rule according to which the same word in English should have been translated by the same word in French, considering that the English version is constant. I find helpful the following quote from R. M. Beaupré in his book Interpreting Bilingual Legislation:[21]

1.   Drafting Errors: Inconsistent Use of Words

A subordinate principle that may be invoked as a last resort to resolve ambiguity requires that the same word or expression be given the same meaning throughout an Act or a series of cognate Acts, in the absence of a contrary indication.

This is admittedly a rather unhelpful principle of construction in most cases but it attains some significance in the bilingual universe. Thus, where one version uses two words or expressions for the other version’s one, it may be deemed inconsistent as an example of untidy draftsmanship. Where the context does not reveal any apparent reason for a distinction to be made through the use of a synonym, the presumption is invoked to resolve the doubt in favour of the consistent version. An example of this approach is found in North Coast Air Services v. Can. Transport Comm. where Martland J., speaking for the court, had this to say:

My view as to the meaning of s. 5 is strengthened by the wording of the French text. In the English text, in subs. (1) the word “procedure” is used in one place, and the word “proceeding” is used in another, both words occurring in the same sentence, but in the French text the word “procédure” is used in both places. In subs. (2) where the English text refers to “proceedings”, the word “procédures” is used in the French text. This emphasizes the fact that s. 5 is concerned with procedural matters.

[33]      The application of the principle which favours the version which is consistent may not be free from doubt. But in this case, counsel have informed the Court that the legislative history reveals nothing significant as an aid to the interpretation of the objets of the impugned provision.[22]

[34]      When one reverts to the English version of section 21.2 as representing the real intent of Parliament, one is again confronted with the weight to be given to the heading “Casual Employment” in the interpretation of the body of the section itself. In my view, the heading cannot be ignored in the way suggested by the Alliance. It clarifies the provision.

[35]      I conclude that Parliament intended in 1992 to cover “casual employment” only in adopting section 21.2 of the PSEA. It created a category discrete from those already in existence in the PSEA, namely those mentioned in sections 24, 25 and 28. That discrete category is casual employment. Ms. Marinos’ employment fell into that category.

[36]      Rothstein J.A. points out that, at the same time as Parliament enacted section 21.2 of the PSEA, it also amended paragraph 2(g) of the PSSRA. Prior to the amendment of 1992, paragraph 2(g) read thus,

2. …

“employee” means a person employed in the Public Service, other than

…

(g) a person employed on a casual or temporary basis, unless the person has been so employed for a period of six months or more. [Emphasis added.]

[37]      After the amendment of 1992, paragraph 2(g) of the PSSRA now reads:

2. (1) …

“employee” means a person employed in the Public Service, other than

…

(g) a person employed on a casual basis, [Emphasis added.]

[38]      In my view, the purpose of that amendment was to tidy up paragraph 2(g) of the PSSRA so as to make it consistent with section 21.2 of the PSEA, which, as I previously concluded, created a discrete category of casual employees and specified, in the provision itself, the terms and conditions of such employment.

[39]      Consequently, section 2 of the PSSRA excludes Ms. Marinos from the scope of that Act. Being a casual employee under section 21.2 of the PSEA, she was, under the PSSRA, employed “on a casual basis”. Her three contracts titled “offre d’emploi temporaire” simply reflected the English heading of section 21.2 of the PSEA, which is “casual employment”.

[40]      Ms. Marinos had therefore the status of a casual employee when she was hired. The next question is: was she maintained in that status during the three periods of her employment? In other words, was she appointed for periods of more than 90 days and did she work in any year for more than 125 days in the same department? These terms and conditions of Ms. Marinos’ status are key elements of the jurisdictional facts upon which the adjudicator had to rule and upon which she could not be mistaken.

[41]      In that respect, the Alliance submits that Ms. Marinos was in fact employed for a period exceeding 90 days and that her three separate contracts were simply legal fictions. The evidence, it says, establishes that she was employed on a continuous basis over a period of more than six months.

[42]      The Alliance relies for that purpose on the Public Service Terms and Conditions of Employment Regulations[23] (the Regulations) which define “casual employee” as meaning:

(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); [Emphasis added.]

[43]      The Alliance says that these Regulations contemplate the situation where a person may be appointed for several continuous periods of time, and yet, still be defined as casual. However, it is clear, it says, that there must be a break in employment in excess of five working days between the consecutive periods in order for the employee to be casual. This, it submits, confirms Parliament’s intent that the employer is not entitled to invoke several continuous periods of employment with a view to maintaining that such employment is casual. In the case at bar, there was no such break in the employment of Ms. Marinos. Ms. Marinos may initially have been appointed under section 21.2 as the first period did not exceed 90 days. At that stage, the PSEA applied and would have been largely determinative of the issue before the adjudicator. Once the appointment exceeded the 90-day period, the adjudicator was, however, under an obligation to examine the issues in accordance with the principles established under the PSSRA.

[44]      Unfortunately for the respondent, this alternative argument, which presupposes that the three 90-day contracts were a sham, was not made before the adjudicator. It is not possible for a court sitting on an appeal of a judicial review application to make a finding of fact which only the adjudicator could have made, had the argument been submitted to her in a timely fashion.

[45]      I conclude that Ms. Marinos was a casual employee during all periods of the three contracts.

3.         Conclusion

[46]      This appeal should be allowed, the decision of the Motions Judge should be set aside, the application for judicial review should be allowed and the decision of the adjudicator should be set aside on the basis that she had no jurisdiction to hear the grievance of the respondent Ms. Marinos.

[47]      The appellant has requested no costs.

Létourneau J.A.: I agree.

* * *

The following are the reasons for judgment rendered in English by

[48]      Rothstein J.A. (dissenting): I have had the opportunity of reading the reasons of Desjardins J.A. I agree with her conclusion that the standard of review in this case is correctness. However, I am unable to agree that solely because the respondent was employed pursuant to section 21.2 of the Public Service Employment Act (PSEA), she was “a person employed on a casual basis” for purposes of the Public Service Staff Relations Act (PSSRA) and therefore not entitled to grieve her dismissal under that Act.

[49]      As to standard of review, while I agree with her analysis generally, because Desjardins J.A. says that the adjudicator must refer to the PSEA (paragraph 16), and because that comes close to the issue on which we differ on the merits of the appeal, I prefer to briefly state my own conclusion on standard of review. What is at issue in this appeal is a fundamental legal question that will have important precedential value. The legal question is not one which involves the expertise of the adjudicator. There is no applicable privative clause. The interpretation of “employee” in subsection 2(1) of the PSSRA has previously been found to involve a reviewable question of jurisdiction. See Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614, at page 630. I need go no further. Applying a functional and pragmatic approach, like Desjardins J.A., I am satisfied that the standard of review is correctness.

[50]      Under subsection 92(1) of the PSSRA, only an “employee” is entitled to refer a grievance to adjudication. However, persons employed on a casual basis are not considered employees for the purposes of the PSSRA. The definition of “employee” in subsection 2(1) provides:

2. (1) In this Act,

…

“employee” means a person employed in the Public Service, other than

…

(g) a person employed on a casual basis.

Therefore, if the respondent was “a person employed on a casual basis”, she was not entitled to refer her grievance to adjudication under the PSSRA.

[51]      The adjudicator was of the opinion that section 21.2 of the PSEA did not inform what is meant by the term “a person employed on a casual basis” in paragraph (g) of the definition of “employee” in the PSSRA. Rather, the adjudicator had regard to the factual circumstances of the respondent’s employment and, in particular, to the regularity and continuity of her work. Considering the facts, she found that the respondent was not “a person employed on a casual basis” and was entitled to grieve her dismissal under the PSSRA. The learned Motions Judge dismissed a judicial review of the adjudicator’s decision.

[52]      Desjardins J.A. comes to a contrary conclusion. As I understand her reasons, she is of the opinion that a person employed pursuant to section 21.2 of the PSEA is “a person employed on a casual basis” for purposes of the PSSRA. Desjardins J.A. notes that section 21.2 of the PSEA itself does not use the words “casual” or “casual employees” or “casual employment”. However, as the heading preceding the section states “Casual Employment”, she finds that there is ambiguity in the interpretation of section 21.2 when read with its heading. Having regard to the heading, she concludes that section 21.2 creates a distinct category of casual employee. She finds that because the respondent was employed pursuant to section 21.2, she was “a person employed on a casual basis” and was therefore not an “employee” entitled to bring a grievance proceeding to adjudication under the PSSRA.

[53]      There is no dispute that that respondent was appointed pursuant to section 21.2. The only issue is whether a person employed pursuant to section 21.2 is, by definition, “a person employed on a casual basis” for purposes of the PSSRA. If so, then no factual assessment of the nature of the employment need be made. As long as a person is employed pursuant to section 21.2, she is “a person employed on a casual basis” and is not an “employee” for the purposes of bringing a grievance to adjudication under the PSSRA. If not, then whether a person is employed on a casual basis is determined by an assessment of the factual circumstances of the employment, including, but not limited to whether the person was employed pursuant to section 21.2.

[54]      I am of the respectful view that section 21.2 of the PSEA does not inform the words “a person employed on a casual basis” for purposes of the PSSRA and that a determination of whether a person is employed on a casual basis must be made on an assessment of the relevant facts pertaining to the employment. In coming to this conclusion, I agree with the analysis of the adjudicator and the learned Motions Judge and would add the following to explain why I differ with the majority in this appeal.

[55]      As I read section 21.2, it entitles the Public Service Commission to appoint a person to the Public Service for a period of 90 days or less without having the provisions of the PSEA, e.g. the requirement to appoint according to the merit principle, apply to that employment or employee. That is the stated purpose set out in subsection 21.2(3). Section 21.2 provides:

Casual Employment

Casual

employment21.2 (1) Notwithstanding any other provision of this Act, the Commission may appoint any person to the Public Service for a period not exceeding ninety days.

Restriction

(2) No person appointed under subsection (1) may work in any particular department, or in any other particular portion of the Public Service, on more than one hundred and twenty-five days in any year.

Application of Act

(3) The provisions of this Act, other than this section, do not apply to a person who is appointed under subsection (1).

Term appointments unaffected

(4) Nothing in this section derogates from any other authority of the Commission to appoint persons to or from within the Public Service for specified periods not exceeding ninety days.

[56]      I do not agree with the majority that a person appointed pursuant to section 21.2 of the PSEA is, by definition, “a person employed on a casual basis” for purposes of the PSSRA and is therefore not an “employee” for grievance purposes under the latter Act. That proposition would require, first, a finding that section 21.2 defines “a person employed on a casual basis” for purposes of the PSEA, and second, a finding that Parliament intended that definition to apply to the PSSRA. In my respectful opinion, having regard to the words of section 21.2, neither finding is justified.

[57]      As to whether section 21.2 defines casual employment, Desjardins J.A. states that section 21.2 creates a category of casual employment distinct from others provided for in other provisions of the PSEA. I agree that section 21.2 does define a separate category of employment. That category constitutes those appointed under that provision for 90 days or less and who are not employed in the Public Service for more than 125 days in a year. It seems clear that Parliament intended that with respect to such employees, the government should not have to comply with other provisions of the PSEA, such as adherence to the merit principle of appointment, as such compliance was considered unnecessary in respect of such short-term employees. There is therefore a purpose to the provision in its own terms, without calling such employment “casual employment”. Indeed, there seems to be no reason why it is necessary to construe section 21.2 as defining “casual employment” for any purpose of the PSEA.

[58]      Desjardins J.A. refers to the heading preceding section 21.2 and the marginal note alongside the section both of which state “Casual Employment” in order to aid in interpreting what she finds is an ambiguous provision. I do not find section 21.2 ambiguous in its terms. Although the heading states “Casual Employment”, section 21.2 in its terms does not purport to define casual employment. The words “casual”, “casual employment” or “casual employee” are not found in the section. I acknowledge that a heading may be used as an aid in statutory construction and that, where necessary, an attempt must be made to reconcile the heading with its following section. See R. v. Davis, [1999] 3 S.C.R. 759, per Lamer C.J.C., at paragraphs 51-53. However, a heading cannot make a provision say what it does not say, nor can it be used to create an ambiguity when the words of the section themselves are not ambiguous. In Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, Estey J. stated at page 377:

… I conclude that an attempt must be made to bring about a reconciliation of the heading with the section introduced by it. If, however, it becomes apparent that the section when read as a whole is clear and without ambiguity, the heading will not operate to change that clear and unambiguous meaning.

In my respectful opinion, the heading cannot be read as if it was part of section 21.2 or to create ambiguity in an unambiguous provision.

[59]      For these reasons, I conclude that section 21.2 does not provide a definition of casual employment in the PSEA.

[60]      Nor is there any indication in section 21.2 that suggests that it was Parliament’s intention to have the provision apply to the PSSRA. Parliament was quite specific as to the intended purpose of section 21.2. It was to exclude other provisions of the PSEA from applying to persons appointed under subsection 21.2(1) of that Act. Parliament clearly put its mind to the scope of section 21.2 and made no reference to excluding application of the PSSRA to persons appointed under section 21.2. If that had been its intention, it would have been a simple matter for Parliament to state that the provisions of the PSSRA did not apply to persons appointed under section 21.2 of the PSEA. Parliament did not do so.

[61]      The fact that a person is appointed for a limited period of time under section 21.2 is not equivalent to employment on a casual basis, as that term has been interpreted by the courts. The approach of the courts in deciding what constitutes casual employment has been to look to the substance, and not only the duration, of the employment. Linden J.A. reviewed prior jurisprudence on the meaning of “casual employment” in Roussy v. Minister of National Revenue (1992), 148 N.R. 74 (F.C.A.). Although Roussy was an unemployment insurance case, I think Linden J.A. provides a useful summary of what is meant by casual employment at pages 76-77:

Hence, the duration of the time a person works is not conclusive in categorizing employment as casual; the length of time may be a factor to be considered, but a more important aspect is whether the employment is “ephemeral” or “transitory” or, if you will, unpredictable and unreliable. It must be impossible to determine its regularity. In other words, if someone is spasmodically called upon once in a while to do a bit of work for an indeterminate time, that may be considered to be casual work. If, however, someone is hired to work specified hours for a definite period or on a particular project until it is completed, this is not casual, even if the period is a short one.

[62]      The exclusion of a person employed on a casual basis from the status of employee for purposes of the PSSRA is a long-standing provision of that Act, in existence since the enactment of the PSSRA in 1967. Prior to the enactment of section 21.2 of the PSEA in 1992, the question of whether a person was employed on a casual basis was to be decided by a board of adjudication based on the facts relevant to the person’s employment. The effect of the reasoning of Desjardins J.A. is that, with the enactment of section 21.2, this factual assessment is displaced and employees appointed pursuant to section 21.2 are automatically persons employed on a casual basis for purposes of the PSSRA.

[63]      Having regard to the way in which the courts have determined whether employment is casual, I think it is highly unlikely that Parliament, in the PSEA, intended to displace these many considerations by one consideration only—the short duration of the employment—for purposes of determining who is “a person employed on a casual basis” for purposes of the PSSRA. This would be a radical change. I do not say that Parliament could not have made such a change. I only say that had it been Parliament’s intent to make such a radical change, I think it would have couched section 21.2 as a definitional term, e.g. “employment on a casual basis means” and would have made express reference to the PSSRA, e.g. “for purposes of this Act and the PSSRA”.

[64]      The effect of the reasoning of Desjardins J.A. is to interpret the words “a person employed on a casual basis” in the PSSRA as meaning a person appointed pursuant to section 21.2 of the PSEA. As previously stated, there is no express linkage in either statute. I acknowledge that the meaning of a word in one statute might be informed by the use of that word in another statute, especially if the two statutes are in pari materia. I also accept that the PSEA and the PSSRA are both part of the legislation which governs the relationship between employees and the federal government, although each has a distinct purpose. However, in this case, the words of the PSSRA are not found in the PSEA. It is true that the heading states “Casual Employment”. I know of no rule of interpretation that provides that a heading in one Act may be used to help explain the meaning of words in another Act. In Miln-Bingham Printing Co. Ltd. v. The King, [1930] S.C.R. 282, Duff J. stated at page 283:

No doubt, for the purpose of ascertaining the meaning of any given word in a statute, the usage of that word in other statutes may be looked at, especially if the other statutes happen to be in pari materia, but it is altogether a fallacy to suppose that because two statutes are in pari materia, a definition clause in one can be bodily transferred to the other.

If the approach of Duff J. is correct, and I am of the view that it is, it is particularly inapt to use a section of one Act to explain the meaning of a term in another, when the only connection between the two is a similarity in wording between a heading in the former Act and the words of the term in the latter Act.

[65]      That is especially inappropriate here for another reason. While the English heading preceding section 21.2 is “Casual Employment”, the French heading is “Emploi temporaire”. By contrast, the French equivalent to “a person employed on a casual basis” in paragraph (g) of the definition of “employee” in subsection 2(1) of the PSSRA is “employées à titre occasionnel”. If it had been Parliament’s intention that section 21.2 was to define “a person employed on a casual basis” for purposes of the PSSRA, it would surely have used the same terminology in the heading preceding section 21.2, as it did in the definition of “a person employed on a casual basis” in the PSSRA. It did not do so, although the very enactment, the Public Service Reform Act, S.C. 1992, c. 54, in which section 21.2 of the PSEA was introduced, also amended paragraph (g) of the definition of “employee”, the casual employment exclusion in the PSSRA. Parliament was looking at both provisions at the same time but made no effort to use the same French language in the heading to section 21.2 in the PSEA and the words in paragraph (g) of the definition of “employee” in the PSSRA.

[66]      Finally, Desjardins J.A. is of the view that the amendment to paragraph (g) of the definition of “employee” in the PSSRA in the Public Service Reform Act was to make paragraph “(g)” consistent with paragraph 21.2 of the PSEA. Had that been Parliament’s intent, it surely would have said so as it was amending both Acts at the same time. On the contrary, I think by leaving the duration of employment out of the definition of “casual employment” in paragraph “(g)” in the PSSRA, it is more likely that Parliament was leaving it to a factual assessment of the circumstances of the employment by an adjudicator to determine if the employment was casual, unconstrained by a statutorily imposed duration.

[67]      For all these reasons, I am of the respectful opinion that section 21.2 of the PSEA does not inform the meaning of the words “a person employed on a casual basis” for purposes of the PSSRA. That being the case, I am of the view that the adjudicator and the learned Motions Judge were correct in concluding that whether the respondent was employed on a casual basis, was to be decided having regard to the factual circumstances surrounding her employment. This could include as one consideration, her employment pursuant to section 21.2, but not be limited to the fact that merely because she was employed pursuant to section 21.2 of the PSEA, that she was automatically “a person employed on a casual basis” for purposes of the PSSRA.

[68]      The appellant in this appeal does not challenge the adjudicator’s findings of fact or common law considerations in determining that the respondent was not “a person employed on a casual basis”. As this Court is not asked to review these findings and as I agree with the legal approach of the adjudicator and the Motions Judge, I would dismiss the appeal with costs.

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