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FORUM on Corrections Research
Contract Teachers in Federal Institutions: Can They Be Legally Considered Federal Government Employees? The Queen v. Public Service Alliance of Canada and Econosult Inc.
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One of the questions most frequently addressed by Legal Services is whether an employer-employee
relationship has been created in a contract between the Correctional Service of Canada and an individual
or a company. As the theme of this issue of FORUM is correctional education, Legal Services will examine
the provision of courses in federal institutions by contract teachers. In accordance with the government policy of privatizing services in appropriate areas, many federal institutions have entered into private contracts for the instruction of inmates. Most institutions were previously staffed by public service teachers, but this gradually changed as the benefits of privatization in this area became clear. One problem with the policy, however, was the spectre of the creation of an employer-employee relationship with the teachers. In early 1988, the Public Service Staff Relations Board (PSSRB) ruled on an application by the Public Service Alliance of Canada (PSAC) regarding contract teachers at Cowansville Institution. The PSAC argued that the teachers in question, who worked for a company called Econosult, were in fact, by operation of law, employees of the federal government. As the PSSRB did not have the jurisdiction to rule on this issue directly, the PSAC asked it to declare that the teachers formed part of the teaching group bargaining unit, pursuant to section 33 of the Public Service Staff Relations Act. The PSAC also asked the PSSRB to order the government to check off union dues for the Econosult teachers, pursuant to section 98 of the Act. PSSRB Decision In July 1987, the Correctional Service of Canada entered into a contract with Econosult Ltd. for the supply of several teachers to provide instruction to inmates at Cowansville Institution. Some employees of the Correctional Service of Canada also taught at the institution, alongside the contract teachers. In fact, it was difficult to discern any significant difference between the functions of the two teaching groups. Many aspects of their day-to-day working environment were similar. The contract teachers were essentially managed and co-ordinated by the Correctional Service of Canada once the contract was in place. Moreover, some of the Econosult teachers had even been employed as teachers by the Correctional Service of Canada before it began to privatize in this area. More specifically, the PSSRB found the following facts to be significant: (1) several of the teachers were continuously employed at the institution even though the contractor had changed twice - the only consistent factor for these individuals was the Correctional Service of Canada; (2) the Correctional Service of Canada had some say in who Econosult hired to work at Cowansville Institution; (3) under the contract's financial arrangements, the Correctional Service of Canada effectively controlled the salaries of the teachers; (4) the Correctional Service of Canada was involved in the performance evaluation of the teachers; and (5) the teachers were fully integrated into the institution's operations - they worked side by side with public service teachers and performed identical functions. There are four principle common-law tests that are used to determine if an employer-employee relationship has been established. In analysing the findings of fact outlined above, the PSSRB used several of these test:
The PSSRB concluded that the relationship of the Econosult teachers with the Correctional Service of Canada, their integration into the operations of the Correctional Service of Canada, the nature of their work, the method of determining their salaries, and the similarity of their work to that of Correctional Service of Canada teachers all contributed to the establishment of an employer-employee relationship. Accordingly, the PSAC's application was granted: the contract teachers were determined to be included in the teaching group bargaining unit, and the Correctional Service of Canada was ordered to check off union dues for them. Federal Court of Appeal The government subsequently applied to the Federal Court of Appeal for a review of the PSSRB decision, and the Court held (2:1) that an employer-employee relationship did not exist between the Correctional Service of Canada and the contract teachers. The PSSRB decision was therefore quashed. Mr. Justice Marceau ruled (with Pratte J. concurring) that a distinction must be made between the private and public sectors. Servants of the Crown are governed by a specific regime, as set out in the Public Service Employment Act, the Public Service Staff Relations Act, and the Financial Administration Act. Employment in the public sector is not a simple question of fact, but is governed by specific and rigid regulations. The Public Service Commission alone has the legal authority to staff public service positions created by the Treasury Board. Accordingly, the PSSRB decision could not be upheld. In his dissent, Mr. Justice Hugesson held that the conditions of work, hiring, salary, supervision, and performance review were, for all practical ends, the same for both groups of teachers. The PSSRB has the obligation to determine who are employees under the law. The Public Service Staff Relations Act and the Public Service Employment Act have two different objectives, and nothing in the legislation prevents a person from being considered to be like an employee without having the status of a member of the public service. Having carefully weighed the facts in this case, the PSSRB had determined the status of the contract teachers as a question of fact, and there were no grounds to interfere with its decision. Mr. Justice Hugesson therefore agreed with the PSSRB that an employer-employee relationship could be created between the federal Crown and an individual despite the clear legislative scheme governing public service employment. The Public Service Alliance of Canada appealed the Federal Court of Appeal decision to the Supreme Court of Canada. It was argued in May 1990, but the Court reserved judgment and has not yet issued its decision. Current Status of Contracts in the Public Service Government departments are not permitted to hire "employees" indirectly through a contract since, as noted by the Federal Court of Appeal, the hiring of public servants may be carried out only under the authority of the Public Service Employment Act Furthermore, government policy prohibits departments from hiring employees directly. If the Supreme Court of Canada were to overturn the Federal Court of Appeal decision and uphold the PSSRB decision, the application of common-law principles could lead to the inadvertent creation of an employer-employee relationship in many other cases of individuals currently under contract with the government. As a result, the government would have to address numerous other practical issues involved in employment relationships. The Supreme Court of Canada's ruling in this case will therefore be of great significance to all government departments who engage in contracting out. The following summaries and extracts from opinions, reports and other documents are provided for the information and convenience of the reader. However, as the extracts are not complete, the reader should refer to the actual opinion or document or consult with Legal Services at National Headquarters concerning the specific interpretation or applicability of any opinion or decision cited. If you have questions about these or any other related matters, please contact Theodore Tax, Senior Counsel, Department of Justice, Legal Services, Correctional Service of Canada, National Headquarters, 4A-340 Laurier Avenue West, Ottawa, Ontario K1A 0P9. RECENT DECISIONS In the case of Gough v. National Parole Board, the Federal Court, Trial Division, gave an interim ruling that the parolee's section 7 rights had been violated because he was not given enough information to be able to meet the case against him, as only the "gist" of Confidential Information Reports (now called Protected Information Reports) was released to him prior to his postsuspension hearing. The Court declared that "both the common-law right of a person to know the case against him, and the s.7 [Charter] requirements of fundamental justice have not been met." As a result, the Court ordered that the Confidential Information Reports be filed in court and disclosed to counsel for the applicant, but on counsel's undertaking not to share them with his client before the Crown could lead section 1 evidence to justify the National Parole Board decision. This aspect of the ruling was appealed to the Federal Court of Appeal, which overturned the Trial Court interim decision and ruled that the trial judge was without jurisdiction to make an order to produce the Confidential Information Reports: it was not for the Court, but for the Board (as the party required to justify the infringement) to determine what evidence it is prepared to present in justification. The hearing resumed on November 26, 1990, before the Federal Court, Trial Division, which rendered its decision on December 14, 1990. The Court ruled that the applicant's section 7 Charter rights were infringed by the refusal to provide him with the conditional information upon which the Board is relying. It further ruled that the National Parole Board had not established an evidentiary basis justifying non-disclosure either with respect to the specific circumstances of this case or by justifying subsection 17(5) of the Parole Regulations as establishing a reasonable limitation on the applicant's rights pursuant to section 1 of the Charter. The Court quashed the Board's decision and ordered a new hearing by a differently constituted panel of the National Parole Board. This decision is under appeal to the Federal Court of Appeal of Canada. In Warden of Mountain Institute v. Steele, the Supreme Court of Canada ruled on November 8, 1990, that the National Parole Board had misapplied the criteria in section 16(1)(a) of the Parole Act over a period of years, with the result that the offender remained incarcerated far beyond the time he should have been paroled. Therefore, the Board's decision violated section 12 of the Charter, which guarantees freedom from cruel and unusual punishment, as the inordinate length of Mr. Steele's incarceration was grossly disproportionate to the circumstances. After pleading guilty to a charge of attempted rape in 1953, Mr. Steele had been declared a criminal sexual psychopath and given an indeterminate sentence of preventive detention. The Court held that the Board was wrong to deny parole on the basis of relatively minor and apparently explicable breaches of discipline committed by Steele, instead of focusing on the crucial issue of whether granting him parole would constitute an undue risk to society. The Court emphasized that this was a highly unusual case and that the offender remained under indeterminate sentence as a dangerous offender (which did not of itself constitute cruel and unusual punishment) and could be returned to custody if his conduct after release so warranted. On September 13, 1990, the Supreme Court of Canada handed down a series of decisions, including Martineau v. R., Rodney v. R., Arkell v. R. and Luxton v. R., regarding the constitutional validity of section 230 (formerly section 213) of the Criminal Code. The constructive murder provisions in this section allowed an individual to be convicted of murder when a killing occurred in the course of another crime, such as hijacking, sexual assault, robbery, etc., even if there was no intention to commit murder. The Court held that these provisions contravened sections 7 (right to life, liberty and security of the person) and 11(d) (presumption of innocence) of the Charter because the principles of fundamental justice required that a conviction of murder be based upon proof beyond a reasonable doubt of subjective foresight of death and that section 230 purported to expressly relieve the Crown of this burden of proof. The Court concluded that in a society such as ours, which values the autonomy and free will of the individual, the stigma and punishment attached to murder should be reserved for those who choose either to intentionally cause death or to intentionally cause bodily injury with the knowledge that it is likely to cause death. It was unnecessary to convict the persons in question of murder in order to deter the infliction of bodily harm during the commission of certain offences. The convictions were therefore quashed, and new trials were ordered. In Olson v. The Queen, the Federal Court, Trial Division, ruled, on November 8, 1990, that the Charter does not guarantee inmates unrestricted telephone access to their lawyers and that the telephone policy's limitations on inmates' calls to their lawyers (two legal or business calls per week) were reasonable. The Court noted that in the 50-week period between October 24, 1989, and October 10, 1990, Mr. Olson made a total of 80 calls to five lawyers and that there was thus no evidence that the application of the existing policy resulted in any prejudice to his Charter rights. The Court also upheld the imposition of a one-month withdrawal of privileges, when Mr. Olson was not allowed to make legal phone calls, which was imposed after he was found to be misusing these telephone privileges. Section 10(b) of the Charter refers only to the right to retain and instruct counsel without delay on initial arrest or detention; these telephone calls did not relate to disciplinary charges or any possible loss of residual liberty, but rather to many ongoing civil claims instituted by the inmate. |
