Supreme Court Judgments

Supreme Court of Canada

Attorney General of Quebec v. Labrecque et al., [1980] 2 S.C.R. 1057

Date: 1980-11-12

Attorney General of the Province of Quebec Appellant;

and

Ernest Labrecque, Clerk of the Provincial Court, Judge Raymond Beaudet and the Provincial Court Respondents.

1980: May 6; 1980: November 12.

Present: Laskin C.J. and Martland, Ritchie, Beetz, Estey, McIntyre and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL OF QUEBEC

Labour law—Public service—Casual employees—Applicability of collective agreement—Whether grievance within jurisdiction of arbitrator or claim subject to jurisdiction of courts of law—Contractual relationship between the government and the employee—Civil Service Act, S.Q. 1965, c. 14, as amended, ss. 3, 16, 67, 70—Regulation concerning positions or offices of a casual nature, O.C. 1714 of Oct. 5, 1966, (1966) 98 G.O. 5451—Labour Code, R.S.Q. 1964, c. 141, ss. 1(g), 88.

Administrative law—Evocation—Action by a casual functionary for employment benefits—Jurisdiction of Provincial Court, Small Claims Division—Error by Court within the limits of its jurisdiction—Code of Civil Procedure, arts. 953, 980, 997.

Respondent Labrecque worked for the government of Quebec as a casual employee for three months. At the end of his contract he claimed from appellant, the Attorney General, in the Provincial Court, Small Claims Division, the sum of $168 for four days’ vacation, three holidays and one day sick leave. The Provincial Court judge allowed the claim and the Court of Appeal upheld the decision of the Superior Court refusing to authorize issuance of a writ of evocation from the Provincial Court judgment.

Held: The appeal should be dismissed.

The issue: The issue which arises is as to whether the Provincial Court judge had jurisdiction to render judgment. It should first be noted that art. 997 of the Code of Civil Procedure contains a private clause which places cases regarding the recovery of small claims outside the Superior Court’s power of evocation, and that art. 980 of the Code states that a judgment rendered in such cases is final and without appeal. It follows that while the Provincial Court cannot by an

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erroneous interpretation of the law arrogate to itself a jurisdiction which it does not possess, it may, however, err in the exercise of its jurisdiction and, though erroneous, its judgment will then be unassailable, provided that it does not base itself on a deliberate error. The Attorney General raised two main grounds of appeal against Provincial Court jurisdiction.

The second ground: Appellant contended (this was his second ground, but it was examined by the Court first) that if respondent is entitled to the benefits claimed, this can only be pursuant to the collective agreement in effect between the government of Quebec and the Syndicat des fonctionnaires provinciaux, and that this agreement does not apply to casual employees. However, if the agreement is applicable, appellant submitted that respondent’s claim constitutes a grievance which can only be decided by an arbitrator, in accordance with the decision of this Court in General Motors v. Brunet, [1977] 2 S.C.R. 537. In light of the express provisions of the Regulation concerning positions or offices of a casual nature and their incumbents, the answer must be that the collective agreement is in no way applicable to casual employees. It follows from this that respondent’s claim cannot constitute a grievance based on that agreement and within the jurisdiction of an arbitrator. However, General Motors v. Brunet does not have the scope which the Attorney General suggests. Indeed, it is not enough that an employee cites a collective agreement for his claim to constitute an arbitrable grievance. A disagreement as to the applicability of the collective agreement does not constitute a grievance but a preliminary issue. As respondent’s claim cannot constitute a grievance, it can only be heard by the courts of law, if only to dismiss it if it is ill-founded. In the case at bar, it must necessarily be heard by the Provincial Court. However, the Provincial Court erred in relying on the collective agreement as its basis for upholding respondent’s claim, and it may even have made a twofold error. Its first error was in deciding that the collective agreement applied to casual employees such as respondent. Its second error was in having held that, if the collective agreement was applicable to casual employees, it had, to the exclusion of an arbitrator, jurisdiction to decide respondent’s claim. Nonetheless, these errors do not affect the jurisdiction of the Provincial Court, since it erred within the limits of its jurisdiction. Finally, although respondent presented no evidence of the existence of an individual contract, the existence of such a contract appears clearly to have been admitted, and it cannot be said that there was a total lack of evidence such as to authorize the issuance of a writ of evocation.

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The first ground: The Attorney General further argued that there was no contract between the provincial government and its civil servants, rather a legal relationship arising out of law, and that therefore respondent’s claim is not a small claim within the meaning of art. 953 of the Code of Civil Procedure, as it does not have a contract for its cause. It must be presumed that the Regulation concerning casual employees was observed. Respondent therefore had a casual employment, to which he was appointed by a document from the head of the Department retaining his services. In a private business, this would have been a contract of service. The legal relationship is not changed by the fact that one of the parties to this relationship is the State and the other is a civil servant. The theory put forward by appellant in this connection could only be justified by the royal prerogative, and modern law has been hostile to the extension of the prerogative. It must accordingly be concluded that respondent was a contract employee and that he correctly followed the procedure specified for the recovery of small claims.

South East Asia Bricks Sdn. Bhd. v. Non Metallic Mineral Products Manufacturing Employees Union, [1980] 3 W.L.R. 318; Procureur général du Québec v. Tribunal du Travail et Syndicat des Fonctionnaires provinciaux, [1975] C.A. 8; General Motors v. Brunet, [1977] 2 S.C.R. 537, considered; Maluorni v. Ville Mont-Royal, [1969] Q.B. 922; Re Grottoli v. Lock & Sons Ltd. (1963), 39 D.L.R. 128; Cahoon v. Conseil de la corporation des ingénieurs, [1972] R.P. 209; Docteur Lefebvre v. Docteur Ledoux, [1973] C.A. 645; Amyot v. Léonard, [1974] C.A. 302; Bey v. Laliberté, [1976] C.A. 142; University of Saskatchewan v. S.C.F.P., [1978] 2 S.C.R. 834; Verreault & Fils v. Attorney General of Quebec, [1977] 1 S.C.R. 41; Shenton v. Smith, [1895] A.C. 229; Dunn v. The Queen, [1896] 1 Q.B. 116; Gould v. Stuart, [1896] A.C. 577; Balderson v. The Queen (1898), 28 S.C.R. 261; R. v. Fisher, [1903] A.C. 158; McLean v. Vancouver Harbour Commissioners, [1936] 3 W.W.R. 657; R. Venkata Rao v. Secretary of State for India, [1937] A.C. 248; Genois v. The King, [1937] Ex. C.R. 176; Lucas v. Lucas and Commissioner for India, [1943] 2 All E.R. 110; Rodwell v. Thomas, [1944] L.R. 1 K.B. 596; Samson v. R., [1957] S.C.R. 832; Riordan v. War Office, [1959] 1 W.L.R. 1046; Vautrin v. Ministre des Finances, [1969] C.S. 390; Chelliah Kodeeswaran v. Attorney General of Ceylon, [1970] A.C. 1111; Syndicat des fonctionnaires provinciaux du Québec v. Bérubé, [1971] C.S. 249; Procureur général de la province de Québec v. Tribunal du travail, [1978] C.A. 103; Zamulinski v. The Queen (1957), 10 D.L.R. (2d) 685; Peck v. The Queen, [1964] Ex. C.R. 966; Reilly v. The King, [1932] Ex. C.R. 14;

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Terrell v. Secretary of State for the Colonies, [1953] 2 Q.B. 482; A.G. of New South Wales v. Perpetual Trustees C. Ltd., [1955] A.C. 457; Inland Revenue Commissioners v. Hambrook, [1956] 2 Q.B. 641, referred to.

APPEAL from a judgement of the Court of Appeal of Quebec[1], affirming a judgment of the Superior Court which refused to issue a writ of evocation from a judgment of the Provincial Court. Appeal dismissed.

Jacques Clément, Q.C., for the appellant.

André Joli-Coeur and Claude Verge, for the respondent Labrecque.

English version of the judgment of the Court delivered by

BEETZ J.—

I—Proceedings, facts and issue

With leave of this Court, the appeal is from a decision of the Court of Appeal of the Province of Quebec, affirming a judgment of the Superior Court which refused to issue a writ of evocation sought by the Attorney General from a judgment of the Provincial Court. This judgment, handed down by Raymond Beaudet J. in accordance with the procedure contained in Book Eight of the Code of Civil Procedure for the recovery of small claims, condemns the Attorney General to pay respondent Ernest Labrecque the sum of $168 with interest from the date of summons and costs, set at $10.

The facts are set forth as follows in the factum of the Attorney General, to which respondent’s factum refers:

[TRANSLATION] Respondent Mr. Ernest Labrecque worked with the Department of Revenue of the Government of Quebec from March 21 to June 19, 1974. During that period he had the status of a casual employee.

After his departure, on or about February 27, 1975, respondent caused to be served on the Attorney General, by the Clerk of the Provincial Court for the District of Quebec City, Access to Justice Division, a motion under

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Book Eight of the Code of Civil Procedure of Quebec. This action set forth the following claim:

[Here, I am quoting from respondent Labrecque’s motion.]

[TRANSLATION] Plaintiff is asking respondent to make payment of the sum of $168.00 and costs within ten (10) days of service of this motion. The costs are $10.00.

The said sum is owed for the following reasons:

amount owed for four days’ vacation at $20.00/day;

three holidays at $20.00/day;

one day sick leave;

plus legal interest from March 1974.

Period of plaintiff’s employment (from March 21 to June 19, 1974).

Contract of casual employment with the Department of Revenue, 200 Dorchester South, Quebec City.

The Attorney General’s factum goes on:

[TRANSLATION] The motion was referred back to the Clerk’s Office after a representative of the Government of Quebec had ticked off two of the five boxes indicating, on a printed form attached to the motion, the five options open to a person sued under this procedure.

The following printed formula is found alongside one of the two boxes ticked off by the representative of the Government of Quebec: “I wish to contest the motion on its merits in court”. Underneath this printed sentence the following words were added by hand: “Three holidays, one sick leave”.

The second ticked box read: “I wish to ask for dismissal of the action”: the printed words “before another court” were struck out and, in the place provided for the purpose, the government’s representative set forth the reasons for his request for dismissal as follows: “Four days’ vacation inadmissible under Book Eight, C.C.P.”.

The motion was accompanied by an explanatory letter signed by the Director of the Central Claims Service.

The record of the Provincial Court does not disclose the nature of the representations made at the hearing. However, from what the Provincial Court judge wrote in his judgment, it appears that the parties made the following admission:

“It was admitted by the parties that plaintiff is entitled to the amount if he is subject to application of the aforementioned collective agreement”.

The Provincial Court judge also discussed a problem of jurisdiction raised by the parties:

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“At the start of the hearing, mention was made of the question of the jurisdiction of the court, sitting for the recovery of small claims, pursuant to Book Eight of the Code of Civil Procedure”.

Beaudet J. dismissed the exception declining his jurisdiction and then rendered the judgment discussed above.

Did he have jurisdiction to render such a judgment?—That is the question.

In arriving at an answer it is important to note that art. 997 of the Code of Civil Procedure contains a privative clause which places cases regarding the recovery of small claims outside the Superior Court’s power of evocation. Article 980 of the Code further states that a judgment rendered in such cases is final and without appeal. It follows that while the Provincial Court cannot by an erroneous interpretation of the law arrogate to itself a jurisdiction which it does not possess, it may however err in the exercise of its jurisdiction and, though erroneous, its judgment will then be unassailable, provided that it does not base itself on a deliberate error which would be equivalent to a fraud on the law: South East Asia Bricks Sdn. Bhd. v. Non Metallic Mineral Products Manufacturing Employees Union[2] (at p. 323).

II—Preliminary difficulty: Did the Attorney General acquiesce in jurisdiction?

Bernier J.A., who was alone in expressing this opinion, concluded that the Attorney General had acquiesced in the jurisdiction of the Provincial Court as to that part of the claim relating to the three holidays and the day of sick leave, but repudiated jurisdiction as to the four days of vacation leave. In his view, the Attorney General could not split his position in this manner, and should have declined jurisdiction on the whole proceeding in limine litis. With respect, I cannot concur with this view. It is true that the summary form of the written pleadings for the recovery of small claims leaves the way open to ambiguity, especially when the parties strike out portions of the form instead of simply responding as required. However, I prefer to rely on the assessment made by the Provincial Court judge who, while noting the

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ambiguity, treated the exception declining jurisdiction as a general exception made “at the start of the hearing”.

III—Judgments of the Provincial Court and the Superior Court and of the Court of Appeal

The primary legal basis on which the Provincial Court relied in allowing respondent’s action was the 1972-1975 collective agreement between the Government of Quebec and the Syndicat des fonctionnaires provinciaux du Québec [Quebec provincial civil servants’ union].

Referring, inter alia, to a decision of the Court of Appeal that will be discussed below and from which it cited lengthy extracts, Le Procureur général de la Province de Québec v. Tribunal du Travail et Syndicat des Fonctionnaires provinciaux du Québec Inc.[3], the Provincial Court held that casual employees like respondent form part of the bargaining unit described in the collective agreement and are subject to its application. In view of the admission of the parties, he therefore allowed respondent’s motion.

The Provincial Court also referred to the individual contract by which respondent became a casual employee of the government of Quebec, and to which the collective agreement was the complement: based on this twofold contractual foundation, respondent’s claim should be decided in accordance with the procedure set forth in art. 953 of the Code of Civil Procedure for the recovery of small claims, since in the Court’s opinion it was a claim having as its cause “a contract, quasi-contract, offence or quasi-offence”, as provided in that disposition.

Jacques J. of the Superior Court concurred in substance with the Provincial Court.

His judgment was prior to General Motors v. Brunet[4], but counsel nonetheless argued before him the principle that was approved in that case, namely that respondent’s claim, based exclusively on the collective agreement, constituted a grievance which ought to be decided by an arbitrator.

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The Superior Court replied to this argument by reference to Maluorni v. Ville Mont-Royal[5], which held that compulsory arbitration does not extend to former employees. Respondent was no longer the employee of the government at the time he brought his motion to recover the small claim. Jacques J. concluded that the jurisdiction of the civil courts over respondent’s claim was not excluded by the fact that the latter could have presented it as a grievance before leaving his employment.

The Court of Appeal, whose decision was subsequent to General Motors v. Brunet (supra), made no ruling on the contractual nature of respondent’s claim; it held that the choice of the procedure prescribed for recovering small claims does not affect the jurisdiction of the Provincial Court.

Mayrand J.A., with whom Tremblay C.J.A. concurred, affirmed the reasons of the Superior Court which held that respondent’s claim would ordinarily constitute a grievance, but like the Superior Court he felt he was bound by Maluorni (supra).

Bernier J.A., with whom Tremblay C.J.A. also concurred, came to the same conclusions as Mayrand J.A. but for slightly different reasons: he did not subscribe to the view of Mayrand J.A. that respondent’s claim would ordinarily constitute a grievance subject to arbitration; in his view the matter turned solely on interpretation of the relevant legislation and was for the courts of law to decide.

IV—Grounds raised by the Attorney General

The Attorney General raised two main grounds against Provincial Court jurisdiction.

1. There was no contract between the provincial government and its civil servants, rather a legal relationship arising out of law. Based on this legal relationship, respondent’s claim is not a small claim within the meaning of art. 953 of the Code of Civil Procedure, as it does not have for its cause, as para. (b) of that provision requires, “a

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contract, quasi-contract, offence or quasi-offence”. The procedure followed is tainted with absolute nullity and deprives the Provincial Court of any jurisdiction.

In the submission of the Attorney General, this is his fundamental ground. If the Court accepts his argument on this point there is no need to rule on his second ground.

2. If respondent is entitled to the benefits claimed, this can only be pursuant to the collective agreement on which the Provincial Court based its finding of entitlement. This agreement is not applicable to casual employees. However, if the agreement is applicable to them, respondent’s claim constitutes a grievance which must be decided by an arbitrator outside the courts of law, since the agreement is the only basis of this claim: General Motors v. Brunet (supra).

In this Court, the Attorney General stressed the alternative nature of this second ground, on which he appears to have placed more emphasis in the lower courts. However, he asked this Court to disapprove Maluorni (supra) if we conclude that respondent’s claim should ordinarily constitute a grievance.

Indeed, as I understand it, the second ground is not merely alternative: it is also conditional. Only if this Court concludes that the collective agreement is applicable to casual employees and that respondent’s claim constitutes a grievance is the Attorney General disputing the jurisdiction of the Provincial Court. He no longer disputes it if this condition is not fulfilled, subject to his first ground.

Counsel for the respondent are in partial agreement with the Attorney General on the second ground. Like him, and despite the contrary view taken by the Superior Court and the Court of Appeal, they maintain that the collective agreement is not applicable to respondent, whose claim accordingly cannot constitute a grievance. Only if the Court dismisses this argument do they cite Maluorni (supra) and ask us to approve it and apply it.

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I should say at once that in my view the first ground must be dismissed.

The second must therefore be considered.

Strictly speaking one might dispense with doing so, since both parties appear to admit that respondent’s claim does not constitute a grievance. Nonetheless it is preferable to deal with it, as this ground raises questions of law on which rulings were given in the lower courts and some of which may affect the application of General Motors v. Brunet (supra).

I will begin with the second ground.

V—Second ground

Employees of the government of Quebec are covered by the Civil Service Act, 1965 (Que.), c. 14, now c. F-3 of the Revised Statutes of Quebec, 1977, ss. 69 and 70 of which set forth a special system of collective bargaining:

69. The Syndicat des fonctionnaires provinciaux du Québec is recognized as the representative of all employees in the civil service who are employees within the meaning of the Labour Code as amended, except:

(a) teachers;

(b) employees who are members of each of the professions contemplated in chapters 247 to 249, 253 to 255 and 257 and 266 of the Revised Statutes, 1964, and persons admitted to the study of such professions;

(c) employees who are university graduates, economists, geographers, geologists, biologists, town-planners, auditors, psychologists, social workers, guidance counsellors and other professionals;

(d) employees who are peace officers, prison guards, game-wardens, transportation or autoroute inspectors and other persons performing duties of a peace officer.

70. Section 69 shall have the same effect as a certification by an investigation commissioner under the Labour Code for two separate groups comprising:

(a) functionaries who are employees;

(b) workmen who are employees.

The Labour Court established by the Labour Code shall decide all conflicts respecting the effective exclusion or inclusion of an employee or class of employees in either of such groups, and shall have the power to cancel the certification and grant another upon the conditions prescribed by the Labour Code. (With the amendments made by S.Q. 1969, c. 48, s. 41.)

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It will be seen that this is an actual legislative certification of a specific union, the Syndicat des fonctionnaires provinciaux du Québec, specifically recognized by law as the representative of all civil servants who are employees within the meaning of the Labour Code, R.S.Q. 1964, c. 141, now c. C-27 of the Revised Statutes of Quebec, 1977, apart from certain exceptions. Having been thus certified, the union can conclude with the government, on behalf only of the employees whom it represents, a collective agreement like that in question in the case at bar.

However, s. 3 of the Civil Service Act allows the Civil Service Commision to make casual employees of the government subject to special provisions:

3. Whenever the Commission decides that it is neither practicable nor in the public interest to apply this act to one or more positions or offices of a casual nature in the civil service, it may, with the approval of the Lieutenant-Governor in Council, withdraw them from the partial or total application of this act and determine, by regulation, the manner in which such positions or offices and the incumbents thereof shall be governed.

Within thirty days after the opening of each session, the Commission shall make an annual report to the Legislative Assembly indicating the positions or offices excluded, under this section, from the partial or total application of this act, the reasons therefor and the regulations prescribed and approved respecting such positions or offices.

Additionally, s. 16 empowers the Commission to make regulations for its internal administration and for the carrying out of the Act, with the approval of the Lieutenant‑Governor in Council.

By means of an Order in Council, the Civil Service Commission in fact exercised the powers conferred on it by ss. 3 and 16, removing casual employees from total application of the Civil Service Act and determining by regulation the manner in which such employment would be governed. The Order in Council and Regulation read as follows:

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Order in Council
Executive Council Chamber

Number 1714

Quebec, October 5, 1966

Present: The Lieutenant-Governor in Council.

CONCERNING the “Regulation concerning positions or offices of a casual nature and their incumbents”.

IT IS ORDERED, upon the recommendation of the Prime Minister:

THAT, in conformity to sections 3 and 16 of the Civil Service Act, the “Regulation concerning positions or offices of a casual nature and their incumbents”, such as decreed by the Civil Service Commission at its assembly of September 29, 1966, and of which a copy is annexed to the present Order in Council, be approved:

THAT the present regulation take effect from and after August 6, 1965.

True copy.

                                                                                                                   JACQUES PRÉMONT,
                                                                                                                   Clerk of the Executive
                                                                                                                        Council.

COMMISSION QUÉBEC CIVIL SERVICE

REGULATION CONCERNING POSITIONS OR OFFICES OF A CASUAL NATURE AND THEIR INCUMBENTS

WHEREAS in pursuance to the terms of the provisions of section 3 of the Civil Service Act, the Québec Civil Service Commission can, if it considers that it is not practical nor in the public interest to apply the aforesaid Act to one or several positions or offices of a casual nature in the Civil Service, withdraw them, with the approbation of the Lieutenant‑Governor in Council, by (sic) the total or partial application of this Act and determine by regulation the manner in which these positions or offices and their incumbents will be governed;

WHEREAS the Commission, after having studied the problem which the application of the aforesaid Act raises in regard to these positions or offices and their incumbents, comes to the conclusion that it is expedient to withdraw from the total application of this Act and consider that they must be governed by a particular rule the conditions of which form the subject of the regulation hereafter decreed.

CONSEQUENTLY, the Québec Civil Service Commission, under the authority of sections 3 and 16 of the Civil Service Act, withdraw from the total application of

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the aforesaid Act the positions or offices of a casual nature in the Civil Service and decree, with regard to these positions or offices and their incumbents the following reglementary provisions:

Title

Sec. 1. The present regulation is known and designated under the title of:

“Regulation concerning positions or offices of a casual nature and their encumbents”.

Interpretation

Sec. 2. In the present regulation, unless the (sic) text indicates a different meaning, the words:

A) “position or office of a casual nature” designates an office or position

(a) the duration of which is inferior to three (3) months for a casual worker and to four (4) months for a casual functionary or

(b) which must fill the purpose to execute a specific and casual work such as the issuance of registration certificates, the construction and repairing of a bridge, a road or another work etc…

B) “casual functionary” or “casual worker” designates the incumbents of a position or office of a casual nature.

Appointment

Sec. 3. The incumbent of a position or office of a casual nature is appointed by a written document from the head of the Department where his services are required, on which document is inscribed following his classification title “casual”.

Sec. 4. For the purposes of the classification, the qualifications, the compensation and the hours of work of the incumbent of a position or office of a casual nature, the head of the Department must determine them following the nature of the work to be done bearing in mind the conditions applicable in specific cases to the regular employees of the administrative unity to which such incumbent is assigned.

Coming into force

Sec. 5. The present regulation will come into force as soon as it is approved by the Lieutenant-Governor in Council and will take effect on the date he wishes to fix.

Assembly of September 29, 1966.

True copy.

                                                                 HENRI DION
                                                                 Secretary.

CAD/mb

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This regulation was in effect at the relevant times.

The Court of Appeal had occasion to interpret it with s. 3 of the Civil Service Act in Le Procureur général de la Province de Québec v. Tribunal du Travail et Syndicat des fonctionnaires provinciaux du Québec Inc. (supra).

In that case, the Syndicat des fonctionnaires provinciaux du Québec was attempting to obtain certification pursuant to the Labour Code by an investigation commissioner as the representative of casual workers employed by the government who were not covered by Civil Service Act. The investigation commissioner held that he did not have jurisdiction, but his decision was reversed on appeal by the Labour Court. The Superior Court refused to issue a writ of evocation, but its judgment was reversed by the Court of Appeal, which ordered the writ to be issued because the investigation commissioner had properly declined jurisdiction.

The Court of Appeal distinguished between removal from total application of the Act and total removal from application of the Act, and arrived at the surprising conclusion that the Regulation authorized by Order in Council No. 1714 is, despite its formal language which is in the same terms as the Act, a partial removal. The reasons of the Court of Appeal also include the following observations, at p. 12:

[TRANSLATION] In the circumstances, whether by virtue of the partial removal contained in the preamble or by virtue of the power which the Commission has to enact regulatory provisions governing its casual workers or functionaries, the latter remain subject to ss. 69 and 70 of the Civil Service Act, and are governed by these provisions where certification is concerned.

With respect, I am unable to agree with these reasons.

First, it seems to me to be impossible to hold that casual workers or functionaries of the government remain subject to ss. 69 and 70 of the Civil Service Act and governed by these provisions where certification is concerned. If that were the

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case, there would be no purpose in certification, since the union would already represent these casual workers or functionaries.

Then, if the Regulation in question is a partial removal from application of the Act, what specific provisions of the Act are affected by the removal?

Finally, what language must be used in order to ensure a total removal, since the language of the Act itself does not suffice?

On the contrary, I think the Regulation authorized by Order in Council No. 1714 had the effect, inter alia, of removing casual workers and functionaries from all provisions of the Civil Service Act, except obviously for ss. 3 and 16 themselves, which are the crux of this Regulation.

The Court of Appeal nonetheless arrived at the right conclusion in Le Procureur général de la Province de Québec v. Tribunal du Travail et le Syndicat des fonctionnaires provinciaux du Québec Inc. (supra), but for the following reason: one of the obvious aims and effects of the Regulation approved by Order in Council No. 1714 is precisely to prohibit representation of casual workers and functionaries by the Syndicat des fonctionnaires provinciaux du Québec, by removing these casual workers and functionaries from the application of ss. 69 and 70 of the Act, inter alia. Accordingly, the union could not circumvent this result by the general provisions of the Labour Code, and indirectly accomplish what the Civil Service Act, a more specific statute, allows the Civil Service Commission to prohibit.

In the case at bar, the Provincial Court and the Superior Court accepted the argument that the wording of the collective agreement signed between the government and the Syndicat des fonctionnaires provinciaux du Québec does not exclude casual functionaries, although it excludes other functionaries, and that the previous collective agreement excluded them expressly. That is indeed the case, but the collective agreement cannot validly contradict a regulation of a public nature, and it

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must be applied in a manner compatible with that regulation.

I accordingly conclude, with due respect for the contrary view, that the collective agreement is in no way applicable to casual employees such as respondent. (It should however be said in all fairness that the Provincial Court, the Superior Court and perhaps even the Court of Appeal may have felt themselves bound by this earlier judgment of the Court of Appeal, although the latter said not a word about it in the case at bar, any more than did the Superior Court.)

As the collective agreement is not applicable to casual employees, it follows that respondent’s claim cannot constitute a grievance based on that agreement and within the jurisdiction of an arbitrator.

However, this proposition needs further elaboration.

The Attorney General cited s. 88 of the Labour Code, according to which every grievance must be submitted to arbitration, and the definition of the word “grievance” in s. 1(g) of the said Code:

(g) “grievance”—any disagreement respecting the interpretation or application of a collective agreement.

The benefits claimed by respondent are dealt with in ss. 33, 34 and 36 of the collective agreement.

As respondent’s right to the application of these provisions to him was in dispute, there would appear to have been a disagreement as to the application of the collective agreement.

The Attorney General also based his argument on General Motors v. Brunet (supra) and maintained that, according to that judgment, it is enough if an employee cites the clause of a collective agreement for his claim to constitute an arbitrable grievance.

In my opinion, that is not the effect of General Motors v. Brunet (supra), any more than it is the scope of the statutory definition of a grievance. Otherwise, an arbitrator would never be deprived of jurisdiction, even in the case where a party

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relied on a collective agreement which did not apply to him, as in the case at bar.

It is important to distinguish between the applicability of a collective agreement and its application, although both expressions are frequently used interchangeably.

The question of applicability is preliminary and goes to the initial jurisdiction of the arbitrator. That question asks whether in a given situation the collective agreement is capable of being applied, because it attains the objective sought. This question is not itself arbitrable; if it is before the arbitrator, he cannot err in this regard without usurping a jurisdiction which he does not have or refusing to exercise one which he does have.

The question of the application of a collective agreement concerns its implementation, the putting of it into practice. This is a subsequent question which arises only when the preceding one has been resolved in the affirmative and about which the arbitrator can err without his jurisdiction being necessarily affected.

In General Motors v. Brunet (supra), Pigeon J., speaking for the whole Court at p. 551, rejected the distinction between a dispute relating to the application of a collective agreement and a dispute relating to its infringement. However, he in no way rejected the distinction between the applicability of an agreement and its application. Indeed, this appears to be what he had in mind when he wrote on the same page:

There can be no question of violation of the collective agreement if it has no application.

The phrase “has no application” is clearly synonymous here with “inapplicable”.

A disagreement as to the applicability of a collective agreement therefore does not constitute a grievance but a preliminary issue.

As the collective agreement is not applicable to respondent, and the latter’s claim cannot constitute a grievance, General Motors v. Brunet (supra) is also not applicable, and there is no need to decide whether the Court of Appeal and the

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Superior Court were correct in continuing to follow Maluorni (supra).

For the same reason, there is also no need to consider whether respondent’s claim was not simply directed at recovery of unpaid salary; in that case, there would be nothing to prevent him from bringing it in the courts of law rather than before an arbitrator of a grievance: General Motors v. Brunet (supra), at pp. 551 and 552; Re Grottoli v. Lock and Sons Ltd.[6]

As respondent’s claim cannot constitute a grievance, it can only be heard by the courts of law, if only to dismiss it if it is ill-founded. In view of the amount, it must necessarily be heard exclusively by the Provincial Court, acting in accordance with ordinary procedure, which the Attorney General does not dispute, or in accordance with the procedure prescribed for the recovery of small claims, which the Attorney General disputes in his first ground.

However, the Provincial Court erred in relying on the collective agreement as its basis for upholding respondent’s claim, and it may even have made a twofold error.

Its first error was in deciding that the collective agreement applied to casual employees such as respondent.

Its second error, subject to possible exceptions dealt with in Maluorni (supra) and Re Grottoli (supra), and without prejudice to the first ground, was in having held that, if the collective agreement was applicable to casual employees, it had, to the exclusion of an arbitrator, jurisdiction to decide respondent’s claim.

Do these errors affect the jurisdiction of the Provincial Court? I think not.

If it had been committed by an arbitrator, the first error would have been fatal as the arbitrator would by it have arrogated an initial jurisdiction which he did not have. That is not the case with the Provincial Court, which began the proceeding

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by having jurisdiction over respondent’s claim under the ordinary procedure or the procedure prescribed for the recovery of small claims.

Moreover, it is the latter procedure which the Provincial Court should prima facie follow, since in his written pleading respondent cited “a contract of casual employment with the Department of Revenue”. (It should further be noted that in that pleading respondent made no reference to the collective agreement. It does not appear to have been raised until the hearing and in the pleadings before the Provincial Court.)

By its first error, therefore, the Provincial Court did not usurp the initial jurisdiction of another forum. It was exercising its own jurisdiction.

I also do not think it lost jurisdiction along the way.

It is true that by associating respondent’s individual contract with the provisions of the collective agreement, the Provincial Court erroneously made applicable to respondent the provisions of an agreement which were not applicable, because they are prohibited from being so by the Civil Service Act and the Regulation contained in Order in Council No. 1714. The Provincial Court erred by misinterpreting this Act and Regulation, but it then erred on the merits of respondent’s claim, irrespective of its power to decide it. In other words, it erred on the substance of the case.

I concur on this point with what was said by Bernier J.A.: these matters

[TRANSLATION] …concern… only the merits of the case… and the judgment on the merits of the Provincial Court, Small Claims Division, is not subject to appeal (Art. 980 C.C.P.) or to evocation on the ground that the judgment was erroneous (Art. 997 C.C.P.)…

…

The question is solely… as to the interpretation of the Civil Service Act (S.Q. 1965, c. 14) and the Regulation enacted thereunder, approved on October 5, 1966 by Order in Council No. 1714. The interpretation of that legislation was not assigned to any court established under the Labour Code; it is a matter for the ordinary courts, the Superior Court and the Provincial Court in the exercise of their respective jurisdictions.

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Indeed, the Attorney General seems to me to concede this point when, on page six of his factum, he refers to “the question of whether respondent was subject to the collective agreement” as a question relating to “the substance of the case”.

The second error relates to jurisdiction, but it is inconsequential as its effects depend on a condition which was not met. Only if the Provincial Court was correct in deciding that the collective agreement was applicable to casual employees would respondent’s claim perhaps have been within the jurisdiction of an arbitrator, and the Provincial Court would not have had jurisdiction. I do not see how its error caused it to lose jurisdiction.

I am therefore of the opinion that the errors of the Provincial Court were committed by it within the limits of its jurisdiction and do not justify evocation.

However, before finishing with the second ground one final point must be disposed of. It has already been mentioned. It concerns the individual contract under which respondent became employed by the government of Quebec.

If, as I think, respondent’s claim does not have a basis in the collective agreement, it must necessarily have that basis in some other cause relating only to this respondent, whether an individual contract like that referred to by the Provincial Court or a kind of unilateral act appointing him to his position on certain conditions. (For purposes of convenience, I shall refer only to the contract, without immediately disposing of the question which is the subject of the first ground of appeal.)

At first glance, therefore, respondent had to present evidence of this contract and of its contents at least with regard to vacation, holidays and sick leave. The actual existence of the contract seems clearly to have been admitted or taken for granted, but neither the printed appeal case nor the original record say anything as to its contents on these three points. During the pleadings, my brother Lamer J. asked counsel whether respondent had received from the department a document retaining his services and whether the head of the

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department had determined his pay and his working hours, as prescribed by ss. 3 and 4 of the Regulation approved by Order in Council No. 1714. Counsel was not able to give him any satisfactory answer, for the reason that this document or documents do not appear in the record.

Secondary evidence was not presented either, testimonial or otherwise, or else the Provincial Court would have mentioned it.

The record therefore contains no evidence regarding the rights which respondent may have to vacation, holidays or sick leave, other than ss. 33, 34 and 36 of the collective agreement.

Without meeting this problem specifically, as it was not raised by the Attorney General and was not made the subject of any discussion, counsel for the respondent maintained in their submission that s. 4 of the Regulation approved by Order in Council No. 1714 required the head of the Department to determine the working conditions of casual employees

bearing in mind the conditions applicable in specific cases to the regular employees of the administrative unity to which such incumbent is assigned.

As the collective agreement provides these benefits for regular employees, it was argued that the individual contracts of casual employees should also provide for them. In other words, according to this argument, the individual contracts of casual employees refer to the provisions of the collective agreement with respect to these benefits, although the collective agreement itself does not apply to casual employees ex proprio vigore.

I cannot accept this reasoning.

It seems to me that if, under s. 4 of the aforementioned Regulation, the head of the Department must determine the pay and working hours of casual employees “bearing in mind” conditions applicable to regular employees. There is no requirement that he provide for identical conditions. He is only required to take these conditions into consideration and base himself on them.

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Moreover, if he does not carry out this obligation, his failure to do so does not have the effect of automatically reproducing in the individual contracts of casual employees the working conditions of regular employees provided for in the collective agreement.

In any case, it is not necessary to dwell at any length on the argument of reference to the collective agreement: first, because this was not the argument adopted by the Provincial Court; second, even if it had adopted this argument, I would again say, not that it lost jurisdiction, but that this was an error of the same type as that which it committed in holding that the collective agreement applied ex proprio vigore, and that it simply erred on the merits of respondent’s claim.

However, should the issuance of a writ of evocation be authorized on the ground that there was a total absence of evidence as to the content of respondent’s individual contract with respect to the benefits claimed?

(Total absence of evidence may be in fact a question of jurisdiction. In this regard, cf. the following: Cahoon v. Conseil de la corporation des ingénieurs[7]; Docteur Lefebvre v. Docteur Ledoux[8]; Amyot v. Léonard[9]; Bey v. Laliberté[10]. See also University of Saskatchewan v. S.C.F.P.[11])

The Provincial Court might have lost jurisdiction if it had rendered the judgment which it rendered on the basis of the unproven contents of the individual contract. However, as we have seen this is not what it did. It relied erroneously on the proven contents of the collective agreement, which the Civil Service Act and the Regulation approved by Order in Council No. 1714 made inapplicable to respondent.

The Provincial Court also referred to the individual contract. However, it did not find in that contract a source of the specific benefits

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claimed by respondent. It referred to the contract to answer the objection that it was unlawful to proceed in the manner prescribed for the recovery of small claims. The Provincial Court dismissed this objection, pointing to the twofold contractual aspect of the claim, the collective agreement and the individual “contract of employment” associated with the collective agreement and mentioned by respondent in his motion. Once again, the existence of an individual hiring appears clearly to have been admitted. Furthermore, the Attorney General recognized in his submission that respondent worked for the government from March 21, 1974 to June 19, 1974, with the status of a casual employee. What he disputed in his first ground was not the existence of that employment, merely its contractual nature.

Accordingly, it cannot be said that there was a total lack of evidence of the basis on which the Provincial Court relied in allowing respondent’s claim.

The second ground of appeal does not allow a conclusion that the Provincial Court lacked jurisdiction or that it lost its jurisdiction.

The first ground must accordingly be disposed of.

VI—First ground

Although there is no evidence other than the collective agreement with respect to the benefits claimed by respondent, it is possible to get a sufficiently accurate idea of his employment from the record in order to decide whether it is employment of a contractual nature.

It must be presumed that the Regulation approved by Order in Council No. 1714 was observed. Respondent therefore had a position of a casual nature for less than four months, to which he was appointed by a document from the head of the department retaining his services. His classification, qualifications, pay and working hours were determined by the head of the department. He was to perform specific and casual work. As he described it in a notification of December 17, 1974, which is to be found in the original record, his function was that of an “assessor” for the

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Department of Revenue. The word “cotiseur” (assessor) is not in the dictionary, but I assume that respondent’s function consisted in making calculations and checks that were more or less of an accounting nature and were used as a basis for determining the assessment which the department would make on some taxpayers. There is no basis in the record for inferring that the operations performed by respondent were concluded by a legal document issued in his own name by virtue of any authority delegated to him. In other words, respondent’s functions cannot be said to have involved the exercise of a public power. He rendered services but was not vested with any authority.

If an individual had been hired on the same conditions by another individual or by a private business to perform operations of the same type, this would be regarded without any question as a contract of service.

However, the Attorney General contends that the matter is otherwise because one of the parties to this legal relationship is the government, and the other party is a civil servant.

The chief ground raised by the Attorney General is based on a general theory of the public service which may be summarized as follows: although a civil servant must consent to his appointment by submitting his candidacy or by accepting a position, he cannot negotiate the terms of his employment because he is not dealing on an equal basis with the State; furthermore, by its statutes or otherwise, the State may amend these conditions while the employment is in effect; relations between the State and the civil servant are therefore not a contractual nature; they result from a unilateral act of public authority by which the State appoints the civil servant to his position, in accordance with previously established general conditions, and thereby confers on him a status which is peculiar to him and from which his duties and rights are derived.

This general theory is found in French administrative law: see, for example, the Manuel de droit administratif of André De Laubadère, 10th ed., 1976, to which the Court was referred.

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For some years many Quebec authors, citing also certain English and Canadian judgments and decisions, as well as a few English authors, have maintained that this general theory can and should be admitted into Anglo-Canadian law, although they admit that historically it has not been the dominant theory in this law: Yves Ouellette and J.R. Cardin, “Le régime syndical et les unités de négociation dans les secteurs hospitalier et scolaire” (1970), 25 R.I. 445; Yves Ouellette, La Fonction publique, 1970, multicopy study; Yves Ouellette, La responsabilité extra contractuelle de l’État fédéral au Canada, 1965, unpublished doctoral thesis, University of Montreal; Patrice Garant, La fonction publique canadienne et québécoise, 1973, Presses de l’Université Laval; René Dussault, Traité de droit administratif canadien et québécois, 1974, Presses de l’Université Laval.

It is perhaps understandable that doctrine, which seeks to systematize the law, may from time to time have recourse to general theories. However, this is a dangerous method to apply for the courts, as the latter must proceed case by case, in a more empirical manner.

For this reason, I do not intend to endorse any all-inclusive theory which is applicable to all classes of civil servants, whether the one proposed by the Attorney General or the opposite theory, the contractual theory. It would be injudicious and even imprudent to rule on the status of civil servants of all kinds in a case involving one casual functionary, who was employed for only a few months, and entirely removed from the provisions governing public servants as a whole. The case concerns only this one functionary. There can be even less question of public officers or other categories of individuals such as constabulary forces or the members of the armed forces.

On the other hand, it is important not to lose sight of the principles and spirit of Anglo‑Canadian public law. It is a matter of substantive law.

It must be remembered that in Anglo-Canadian law, administrative law does not constitute a com-

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plete and independent system, separate from the ordinary law and administered by specialized courts. On the contrary, it is the ordinary law, administered by the courts of law, which is made a part of public law and the provisions of which cover the public administrative authority, unless they are replaced by incompatible legislative provisions, or supplanted by rules peculiar to the royal prerogative, that group of powers and privileges belonging only to the Crown.

It follows that faced with the necessity of qualifying and regulating a given legal relationship in public law, the jurist of the Anglo-Canadian tradition must necessarily carry out this function with the concepts and rules of the ordinary law, unless statute or prerogative require otherwise. Confronted by a legal relationship having all the characteristics of a contract, as in the case at bar, the Anglo-Canadian jurist must consider it and deal with it as contract, subject to legislation and prerogative.

This characteristic is one of the aspects of the rule of law, as conceived in English public law.

It is also important to note that in Anglo-Canadian law, the relationship between a civil servant and his employer is not, strictly speaking, a relationship with an abstract being, the State: it is a relationship with a relatively more concrete entity, the Crown, which “personifies the state”, in the expression of Griffith and Street, The Principles of Administrative Law, 5th ed., 1973, at p. 246, but exercises only executive authority: s. 9 of the British North America Act, 1867. The Crown is also the Sovereign, a physical person who, in addition to the prerogative, enjoys a general capacity to contract in accordance with the rule of ordinary law. This general capacity to contract, like the prerogative, is also one of the attributes of the Crown in right of a province: Verreault & Fils v. Attorney General of Quebec[12].

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Modern English law, hostile to the extension of the royal prerogative, is unwilling to use it to explain a legal situation which can just as well be explained by the general capacity of the Crown.

A theory like that put forward by the Attorney General could only be justified with regard to respondent’s employment by the royal prerogative, which must be rejected for the reason which I have just given, or by legislation, in the case at bar the Regulation approved by Order in Council No. 1714.

I cannot see in this Regulation anything preventing application of the ordinary law of contract. The Attorney General placed great emphasis on the fact that a casual employee is “appointed” to his position. Something more than this expression would be required to dispense with the general principles of public law. Furthermore, in the private sector an employee is often “appointed” to a managerial position. It is also true that a casual employee is not dealing on an equal basis with the Government and cannot, in practice, negotiate the terms of his employment. However, the same thing can be said of the small employee contracting with large business. As to the argument that the Government may unilaterally modify the terms of employment, which also appears to derive from French administrative law, it seems to me to be at the least doubtful in our law, apart from express provisions of the enactment, which I do not find in the Regulation in question.

Accordingly I conclude, like the Provincial Court and the Superior Court, that respondent was a contract employee and that he was correct in following the procedure prescribed for the recovery of small claims.

In deciding on the contractual nature of respondent’s employment, I am only following the thrust of an almost unanimous line of authority: Shenton v. Smith[13] (at pp. 234-5); Dunn v. R.[14];

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Gould v. Stuart[15]; Balderson v. R.[16] (at p. 266); R. v. Fisher,[17] (at p. 166); McLean v. Vancouver Harbour Commissioners[18]; R. Venkata Rao v. Secretary of State for India[19]; Genois v. The King[20]; Lucas v. Lucas and Commissioner for India[21] (at p. 112); Rodwell v. Thomas[22]; Samson v. R.[23] (at pp. 835-36-40-41); Riordan v. War Office[24] (at p. 1053); Vautrin v. Le ministre des Finances[25]; Chelliah Kodeeswaran v. Attorney General of Ceylon[26] (at p. 1123); Syndicat des fonctionnaires provinciaux du Québec v. Bérubé[27] (at p. 250); Procureur général de la province de Québec v. Tribunal du travail[28] (at p. 104).

The Attorney General emphasized that these were often obiter dicta. Perhaps. But they are so numerous and consistent that they carry weight.

As examples of the contrary view, the Court was referred to two judgments of the Exchequer Court, Zamulinski v. The Queen[29] and Peck v. The Queen[30]. These isolated judgments are at most ambiguous on the point.

The judgment of the Exchequer Court in Reilly v. The King[31] is much more specific in its rejection of the contractual nature of the civil service. However, it was disapproved on this point by this Court[32], whose decision was upheld on other grounds by the Judicial Committee of the Privy

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Council[33]. It is also worth noting that the function in question was apparently that of a public officer, a member of a federal commission created by legislation. In this regard, the case resembles Terrell v. Secretary of State for the Colonies[34]: the contractual nature of the function was also rejected but the function in question was that of a judge. The function of a public officer was also in question in A.G. of New South Wales v. Perpetual Trustees C. Ltd.[35]

Finally, the Court was referred to the opinion of Lord Goddard, Chief Justice of England, in Inland Revenue Commissioners v. Hambrook[36]. However, he referred to “established civil servants”, as the Court of Appeal referred to “senior civil servants”, which definitely is not the case with respondent Labrecque. Additionally, his opinion was questioned by some of the judges of the Court of Appeal at pp. 666, 670 and 671.

Articles and doctrinal works can be found on both sides of the question, even written by authors in the English legal tradition; see, for example, in support of the theory proposed by the Attorney General: Leo Blair, “The Civil Servant—a Status Relationship?” (1958), 21 M.L.R. 265. For the contrary view, see Ivan C.M. Richardson, “Incidents of the Crown Servant Relationship” (1955), 33 Can. Bar. Rev. 427. Griffith and Street (op. cit.) seem more inclined towards the traditional English position. De Smith in Constitutional and Administration Law, 3rd ed., 1977, mentions both viewpoints, but states no preference.

VII—Summary and conclusions

Respondent was hired by the government of Quebec as a casual employee and was a contract employee. His claim was based on a contract and could be prosecuted in accordance with the proce-

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dure prescribed for the recovery of small claims. By allowing this claim on the ground that it was based on the 1972-1975 collective agreement between the government of Quebec and the Syndicat des fonctionnaires provinciaux du Québec, the Provincial Court erroneously interpreted the Civil Service Act and the Regulation approved by Order in Council No. 1714, but it erred within the limits of its jurisdiction and its judgment is not appealable or subject to evocation.

I would dismiss the appeal. In accordance with the conditions which the Attorney General agreed to when leave to appeal was granted to him, he will pay the costs of respondent Labrecque in this Court on a solicitor-client basis.

Appeal dismissed with costs.

Solicitors for the appellant: Villeneuve, Pigeon, Clément, Guilbeault and Laurendeau, Montreal.

Solicitors for the respondent Labrecque: Langlois, Drouin & Associates, Quebec.