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A-73-77
Eric A. Bolling, J. Robinson and G. R. Widdis (Applicants)
v.
Public Service Staff Relations Board (Respond- ent)
Court of Appeal, Thurlow A.C.J., Ryan and Le Dain JJ.—Ottawa, May 26, 1977.
Judicial review — Labour relations — Public Service Collective agreement between Treasury Board and the Profes sional Institute of the Public Service of Canada — Service in Canadian Armed Forces cannot be included in calculation of vacation leave — Federal Court Act, s. 28 — Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s. 2 — Agreement between the Treasury Board and the Professional Institute of the Public Service of Canada, Group: Scientific Regulation, Article 18.
APPLICATION for judicial review. COUNSEL:
M. Wexler for applicants. Robert W. Côté for respondent.
SOLICITORS:
M. Wexler c/o Professional Institute of the Public Service of Canada for applicants.
Deputy Attorney General of Canada and the Public Service Staff Relations Board for respondent.
The following are the reasons for judgment of the Court delivered orally in English by
THURLOW A.C.J.: The question of law which arises on this application is whether service in the Canadian Forces should be counted in calculating vacation leave under Article 18 of a collective agreement between the Treasury Board and the Professional Institute of the Public Service of Canada covering employees of the Scientific Regu lation Group. Under Article 18.02, for the purpose of the Article "service" means all periods of employment in the Public Service, whether contin uous or discontinuous, except where a person, on leaving the Public Service, takes or has taken severance pay. The agreement contains no defini tion of the expression "employed in the Public
Service" or of the expression "Public Service" but, under Article 2.02, except as otherwise provided in the agreement, expressions used in the agreement, if defined in the Public Service Staff Relations Act', have the same meaning as given to them in that Act.
In section 2 of that Act, the expression "Public Service" is defined as meaning
the several positions in or under any department or other portion of the public service of Canada specified from time to time in Schedule I;
Schedule I lists inter alla departments named in Schedule A to the Financial Administration Act 2 and the lists in that Schedule include "Department of National Defence".
In our opinion, neither the general substantive provisions of the Public Service Staff Relations Act which confer collective bargaining rights on certain employees in the public service of Canada, nor those of the Public Service Employment Act 3 which provide for selection on the merit principle, for rights with respect to promotion and for appeals, apply to members of the Canadian Forces. The terms and relationships under which they serve are prescribed by the National Defence Act 4 and are largely, if not entirely, inconsistent with the application of either the Public Service Staff Relations Act or the Public Service Employment Act to them. That they are not included in the general body of persons to whom the Public Service Staff Relations Act and the Public Service Employment Act apply is borne out by the fact that they are specially mentioned in paragraph 2(2)(b) of the latter Act for the purpose of conferring particular rights on them.
It would, therefore, in our view, be wrong to read the definition of that segment of the public service of Canada which is to be referred to as the "Public Service" throughout the Public Service Staff Relations Act, and indeed the Public Service Employment Act as well, where the definition
' R.S.C. 1970, c. P-35. 2 R.S.C. 1970, c. F-10. ' R.S.C. 1970, c. P-32. 4 R.S.C. 1970, c. N-4.
refers to and coincides with that in the Public Service Staff Relations Act, as embracing mem bers of the Canadian Forces.
We are accordingly of the opinion that the adjudicator correctly decided that service in the Canadian Forces is not service within the meaning of Article 18 of the collective agreement.
The application will therefore be dismissed.
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