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A-36-78
Mireille Dansereau (Applicant)
v.
National Film Board and Pierre-André Lachapelle (Respondents)
Court of Appeal, Pratte, Ryan and Le Dain JJ.— Montreal, April 27; Ottawa, May 12, 1978.
Judicial review — Labour relations — Refusal of National Film Board to renew freelancer's contract — Grievance instituted under Public Service Staff Relations Act — Grievor alleged refusal in contravention of collective agreement — Grievor claimed entitlement to remain in Board's employ as work existed and other freelancers were employed in work she could have done — Grievance dismissed by Adjudicator — Whether or not decision should be set aside — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
M. Freiheit for applicant.
Pierre Delage for National Film Board.
No representative for Pierre-André La -
chapelle.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb, Montreal, for applicant.
Deputy Attorney General of Canada for Na tional Film Board.
The following is the English version of the reasons for judgment rendered by
PRATTE J.: This section 28 application is direct ed against a decision by an Adjudicator acting under the Public Service Staff Relations Act, R.S.C. 1970, c. P-35, dismissing the grievance filed by applicant as a result of the National Film Board's refusal to renew her contract of employ ment.
Applicant had been hired by the National Film Board for a one-year term which was to end on January 18, 1977, and which was extended by mutual agreement until February 28, 1977. It is agreed that, during her employment, applicant belonged to a bargaining unit represented by the NFB section of the Syndicat général du cinéma et
de la télévision, and that her working conditions were governed by the collective agreement for employees in the technical category signed November 13, 1975 by this Union and the Nation al Film Board. The collective agreement con tained, inter alia, the following two clauses:
13.03 A laid-off employee has priority for reinstatement during a period of eighteen (18) months from the date of his lay-off. Seniority is not interrupted if the employee is reinstated during that period.
40.01 The Employer maintains the principle and the practice of obtaining the services of regular employees and freelancers. It is agreed that services of freelancers shall not be obtained to circumvent the provisions of this agreement or to terminate employment of regular employees.
When applicant learned that her contract of employment would not be extended or renewed after February 28, 1977, she filed a grievance maintaining that she was entitled to remain in the employ of the Board. Alleging that there was work for her to do, since several freelancers were employed on tasks that she could well have done, she claimed that the Board's refusal to continue to employ her contravened article 40.01 of the collec tive agreement. This is the grievance that was dismissed in the decision that applicant seeks to have set aside.
In my opinion, the impugned decision is correct and applicant's application should therefore be dismissed.
Applicant had been hired for a specified term. Her employment would normally have come to an end upon expiry of the agreed time. This was not disputed by counsel for the applicant, who argued, however, that such a contract contravened the collective agreement since the stipulation of a term would cause the employee to lose his right under article 13.03 to priority in rehiring. This argument is not valid. Article 13.03 grants a right to employees who have been laid off. Article 2.10 of the agreement defines the expression "lay-off' as follows:
2.10 "Lay-off" means termination of employment because of lack of work;
An employee hired for a specific term is not laid off when this term expires, since the termination of his employment at that time is not due to lack of work but to the terms of the contract under which
the employee was hired. Such an employee there fore has no rights under article 13.03 once the term for which he was hired comes to an end. In other words, the contract of employment for a specific term cannot be said to contravene article 13.03 of the agreement.
Counsel for the applicant maintained, however, that applicant lost her employment because "free- lancers" were hired to do work that applicant could have done. The hiring of the freelancers was therefore prejudicial to the applicant and consti tutes a breach of article 40.01 of the agreement.
In my view the Adjudicator was right to dismiss this argument. Article 40.01 confirms the employ er's right to hire freelancers but prohibits him from exercising this right "to circumvent the provisions of this agreement or to terminate employment of regular employees." It is clear that in this case freelancers were not hired to "circum- vent the provisions of this agreement", since noth ing in the agreement gave applicant the right to a renewal or extension of her employment. As for the question of whether the freelancers in the case at bar were hired in order "to terminate [the] employment" of applicant, the Adjudicator replied that they were not because in his opinion the evidence presented to him did not establish "any causal relationship between the hiring of the free lancers and the termination of Mrs. Dansereau's employment which might have indicated that the employer had intended, in hiring the freelancers, to terminate Mrs. Dansereau's employment". I see nothing to add to this part of the Adjudicator's decision, which is based on a finding of fact which, according to the record, is accurate.
For these reasons, I would dismiss the application.
* * *
RYAN J.: I concur.
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LE DAIN J.: I concur.
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