A-52-79
The Queen in right of Canada (Applicant)
v.
M. Lefebvre et al. (Respondents)
and
Professional Institute of the Public Service of
Canada and Public Service Staff Relations Board
(Mis -en-cause)
Court of Appeal, Pratte, Ryan and Le Damn JJ.—
Ottawa, December 6, 1979 and February 1, 1980.
Judicial review — Public Service — Professional dues —
Nature of work performed by respondents, federal government
employees, reserved to members of professional organization
by provincial law — Collective agreement providing for reim
bursement of fees paid to professional organizations where
membership a requirement for continuation of duties of the
position — Claim for reimbursement dismissed by employer
on ground that membership in professional organization not a
requirement for performance of respondents' duties —
Application to review and set aside Adjudicator's decision to
allow the claim — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28 — Professional Code, S.Q. 1973, c. 43 —
Professional Chemists Act, R.S.Q. 1964, c. 265.
This is a section 28 application to review and set aside a
decision of an Adjudicator acting in accordance with the Public
Service Staff Relations Act. In 1978, respondents, chemists
employed by the Department of National Health and Welfare,
performed their duties in Quebec and paid the fees charged by
their professional organization, the Order of Chemists of
Quebec. Under Quebec law, the work performed by respond
ent's as employees of the federal government was reserved for
members of the Order of Chemists of Quebec and that organi
zation maintained that respondents had to be members despite
their being employees of the federal government. Respondents
based their claim for reimbursement of these fees from their
employer on a clause in the collective agreement, then govern
ing their working conditions, that provided for the reimburse
ment of the fees paid by an employee to an organization or
governing body when the payment of the fees was a require
ment for the continuation of the duties of the position.
Respondents' claim was referred to adjudication after being
dismissed by the employer on the ground that membership in
the Order of Chemists of Quebec was not a requirement for the
performance of respondents' duties. The Adjudicator allowed
the claim and it is his decision which is here challenged by the
applicant.
Held, the application is allowed. The payment of the mem
bership fees for which respondents are claiming reimbursement
was not "a requirement" for the performance of their duties.
The fact that it may have been thought, at the time article
32.01 was signed, that the payment of certain membership fees
was a requirement does not have the effect of making such a
payment a requirement if, in actual fact, it was not. The parties
may have been mistaken as to the utility of the clause they
inserted in the collective agreement but that does not have the
effect of altering its meaning. The power to regulate the hiring
of its employees, like that of regulating their working condi
tions, belongs exclusively to the federal Parliament. It is for this
reason that statutes such as the Professional Code and the
Professional Chemists Act cannot be applied to federal
employees on account of acts which they perform in the course
of their duties.
APPLICATION for judicial review.
COUNSEL:
R. Cousineau for applicant.
M. Wexler for respondents M. Lefebvre et al.
and for mis -en-cause Professional Institute of
the Public Service of Canada.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Professional Institute of the Public Service of
Canada, Ottawa, for respondents M. Lefebvre
et al. and for itself.
Public Service Staff Relations Board,
Ottawa, for itself.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: This application, made pursuant to
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, is from a decision of an
Adjudicator acting in accordance with the Public
Service Staff Relations Act, R.S.C. 1970, c. P-35.
In 1978, respondents were employed as chemists
by the Department of National Health and Wel
fare. They performed their duties in the Province
of Quebec; they paid the fees they were charged by
their professional corporation, the Order of Chem
ists of Quebec; and they claimed reimbursement of
these fees from their employer. Their request was
based on article 32.01 of the collective agreement
then governing their working conditions. This
article reads as follows:
32.01 The Employer shall reimburse an employee for his pay
ment of membership or registration fees to an organiza-
tion or governing body when the payment of such fees is
a requirement for the continuation of the performance of
the duties of his position.
Respondents' claim was referred to adjudica
tion, after being dismissed by the employer on the
ground that membership in the Order of Chemists
of Quebec was not a requirement for the perform
ance of respondents' duties. The Adjudicator
allowed the claim and it is his decision which is
challenged here by applicant.
The parties were agreed on the following facts:
1. the work respondents performed in the Prov
ince of Quebec as employees of the federal
government was one which, under the Profes
sional Code' and the Professional Chemists
Act 2 of that Province, was reserved for members
of the Order of Chemists of Quebec;
2. the Order of Chemists of Quebec maintained
that, in view of the nature of their functions,
respondents had to be members of the Order,
despite the fact that they were employees of the
federal government;
3. the monies which respondents claimed in
reimbursement represented "membership fees"
which they were required to pay the Order of
Chemists of Quebec in order to be members of
this professional body.
In support of her appeal, applicant made one
argument only: payment of the membership fees
for which respondents claimed to be reimbursed
was not necessary to the performance of their
duties because, despite the provisions of the
Professional Code and the Professional Chemists
Act of Quebec, they were entitled to perform their
work as employees of the federal government even
though they were not members of the Order of
Chemists of Quebec. Thus, applicant argued that
the provincial legislatures are powerless to place a
brake on the powers of the federal government,
and it follows that the provisions of the Profes
sional Code and of the Professional Chemists Act
prohibiting a chemist from working without being
a member of the Order cannot be applied to work
performed by employees of the federal government
in the course of their duties.
' S.Q. 1973, c. 43.
2 R.S.Q. 1964, c. 265, as amended by S.Q. 1970, c. 57 and
S.Q. 1973, c. 63.
Respondents, for their part, argued that it is not
necessary for the purposes of the case at bar to
resolve the question raised by applicant. In the
submission of respondents, article 32.01 of the
collective agreement, if it is correctly interpreted,
imposes on the employer an obligation to reim
burse the monies claimed by respondents despite
the fact that, under the principles of constitutional
law relied on by applicant, the latter could legally
have carried out their duties without being mem
bers of the Order of Chemists of Quebec.
Consideration must first be given to this argu
ment by respondents, which if I have understood it
correctly may be stated as follows: if article 32.01
is interpreted in light of the "Treasury Board
Directive on Payment of Membership Fees", dated
July 1, 1977, it will be seen that article 32.01 was
inserted in the collective agreement to ensure that
membership fees payable to professional bodies
pursuant to provincial statutes such as the Profes
sional Code and the Professional Chemists Act
will be reimbursed; it follows, respondents further
argue, that if effect is to be given to the mutual
intent of the parties to the collective agreement, it
must be said that the employer undertook to reim
burse membership fees paid by her employees to
professional bodies without regard to the fact that,
at constitutional law, such employees might not be
required to pay those membership fees.
The Treasury Board Directive referred to by
respondents was published on July 1, before the
collective agreement at issue here was concluded.
There is no need here to cite this lengthy docu
ment, in which the Treasury Board sets forth the
cases in which the government will agree to reim
burse to its employees membership fees which they
have paid to professional bodies. Suffice it to say
that, if this Directive is interpreted as respondents
wish, it suggests that professional fees paid by
federal government employees pursuant to provin
cial statutes, like the Professional Chemists Act,
are fees for which the employer must reimburse
her employees because they are a requirement for
the performance of their duties. Assuming that
that is actually what this Directive means, the only
conclusion that I can draw from it is that the
parties to the collective agreement governing the
working conditions of respondents, when they
agreed to the wording of article 32.01, probably
shared the view of the writer of the Directive and
believed that the payment by an employee of the
federal government of membership fees like those
at issue here was a requirement for the perform
ance of his duties. However, I see nothing in this
which can be of any assistance to respondents or,
as they maintain, alter the very clear meaning of
article 32.01. Under that provision, the employer
shall reimburse membership fees paid by an
employee to a professional body "when the pay
ment of such fees is a requirement for the con
tinuation of [his] duties ...." In my view, the fact
that it may have been thought, at the time article
32.01 was signed, that the payment of certain
membership fees was a requirement does not have
the effect of making such a payment a require
ment if, in actual fact, it was not. In other words,
the parties may have been mistaken as to the
utility of the clause which they inserted in the
collective agreement, but that does not have the
effect of altering its meaning.
In my opinion, therefore, the argument of
respondents must be rejected: I therefore cannot
avoid a ruling on applicant's argument that the
payment of the membership fees for which
respondents are claiming reimbursement was not
"a requirement" for the performance of their
duties.
When this appeal was heard respondents did not
dispute that they were employees of the federal
government, appointed to their positions in accord
ance with federal statutes to perform duties within
federal jurisdiction. That being so, applicant
argued that respondents could have performed the
duties without being members of the Order of
Chemists of Quebec, because the statutes adopted
by a provincial legislature cannot limit the power
enjoyed by the federal government to choose
whomever it will to perform the administrative
functions falling within its jurisdiction.
In my opinion this is a sound argument. The
performance by the federal government of the
administrative functions pertaining to it requires
that there be a federal Public Service. The power
to regulate hiring of its employees, like that of
regulating their working conditions,' seems to me
to belong exclusively to the federal Parliament. It
is for this reason that, in my opinion, statutes such
as the Professional Code and the Professional
Chemists Act cannot be applied to federal
employees on account of acts which they perform
in the course of their duties. If that were not so, it
would amount to saying that each of the ten
provinces could establish as it saw fit the standards
of competence that the federal government should
meet in hiring its personnel. I cannot accept such a
conclusion.
For these reasons, I would allow the application,
quash the decision a quo and refer the case back to
the Adjudicator, for him to decide it on the
assumption that payment of the monies for which
respondents claim to be reimbursed was not a
requirement for performance of their duties.
* * *
RYAN J.: I concur.
* * *
LE DAIN J.: I concur.
3 See: In the matter of a reference as to the applicability of
the Minimum Wage Act of Saskatchewan to an employee of a
revenue Post Office [1948] S.C.R. 248.
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.