Supreme Court

liiRl OF Tug ^?1ES

^SEESHIS " IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN; ' and-KRISTINE ROME, Applicant ^ t i o n of j , ^ ; ' is tdayofjr - and -intomant,

THE COMMISSIONER OF THE NORTHWEST TERRITORIES,

c C Y"^"':""'-Respondent 1 va "' is Z o. Cj "T̂ t̂ ti-f ^^-'/ 7'f Application for an Order appointing an Arbitrator Heard at Yellowknife February 28, 1978 Application granted Reasons for Judgment filed: March 10, 1978.

Reasons for Judgment by; •JG:ENTCF: The Hono'arable Mr. Justice C F. Tallis Counsel on the Hearing; Mr, v;. Stefura for the Applicant Mr. A. Brien for the Respondent ^^

SC CW T^^SOT

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN; KRISTINE ROME, Applicant - and THE COMMISSIONER OF THE NORTHWEST TERRITORIES/ Respondent

Counsel on the Hearing: Mr. W. Stefura for the Applicant Mr. A. Brien for the Respondent

REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE C.F. TALLIS

This is an Application for an Order appointing an arbitrator pursuant to Section 12 of the Arbitration Ordi-nance, R.O.N.W.T. 1974 Ch. A-4 and Section 32 of the Public Service Ordinance, R.O.N.W.T. 1974 Ch. P-13. It is comnion ground between the parties that there is no collective bargaining agreement involved in this application. In support of this application the Applicant filed her affidavit which reads as follows: "I, KRISTINE ROME, of the City of Yellowknife in the Northwest Territories, MAKE OATH AND SAY:

1. That I am the Applicant in the v̂ ithin application.

2. That I first became an employee within the Public Service of the Government of the Northwest Territories on or about the first ^

- 2 -\ "day of May, 1974 in the position of a clerk­steno with the Department of Social Develop-ment. 3. That on the 7th day of June, 1976, I submitted my notice of transfer as steno 3 with the Department of Social Development by reason of my transfer to the position of steno 3 with the Health Care Division of the Department of Social Development, at Yellowknife, Northwest Territories, which appointment commenced the 14th day of June, 1976. 4. That on or about the 7th day of January, 1977, I submitted my notice of transfer for my position of steno 3 with the Health Care Division of the Department of Social Develop­ment effective January 10th, 1977 and trans­ferred to the position of steno 3 with the Research and Development division of the Department of Local Government at Yellow-knife, North\\7est Territories, commencing January 10th, 1977. 5. On or about the 11th day of August, 1977, ) I accepted a promotion to the position of steno 4 with the Department of Education in Yellowknife, effective August 22nd, 1977. 6. That on or about the 14th day of December, 1977, I received a letter from the Commissioner of the Northwest Territories advising me that my employment had been terminated effective such date. Attached hereto and marked Exhibit "A" to this my Affidavit is a copy of such letter . 7. That on or about the 22nd day of December, 1977, Mr. Ed McCrae, on ray behalf, delivered to the Comniissioner of the Northwest Territories a letter contesting the termination of my employ and requesting an appeal. Attached hereto and marked as Exhibit "B" to this my Affidavit is a copy of said letter.

8. That on or about the 3rd day of January, 1978, I received from the Commissioner of the Northv/est Territories, a letter attached hereto and marked as Exhibit "C" to this my Affidavit, I advising that the matter had been reconsidered, and that the decision to terminate my employment with the Government of the Northwest Territories

- 3 -"had been upheld. 9. That on or about the 6th day of .January, 1978, Mr. Ed McCrae, on my behalf, delivered to the Commissioner of the Northwest Terri­tories a letter requesting that the matter of the termination of my employ be referred to arbitration. Attached hereto marked Exhibit "D" to this my Affidavit is a copy of said letter. 10. On or about the 16th day of January, 1978,-Mr. Ed McCrae received on my behalf a letter from the Coramissioner of the North­west Territories advising that I had been rejected on probation in accordance v;ith Section 20 of the Public Service Ordinance and that therefore the matter was not referrable to an Arbitration Board. At­tached hereto marked as Exhibit "E" to this my Affidavit is a copy of said letter.-

11. That on or about the 25th day of January, 1978, Ed McCrae, on my behalf, delivered to the Commissioner of the Northwest Territories a notice to concur in the appointment of a single arbitrator or to.appoint an arbitrator. Attached hereto and marked as Exhibit "F" is a copy of said letter.

12. On or about January 27th, 1978, Mr. R. H. • Bates, Director, Department of Personnel for the Government of the Northwest Territories, delivered to Mr. Ed McCrae a letter advising that it v/as their position that I had been rejected during probation and as a result, reference to arbitration was not applicable. Attached hereto and marked as Exhibit "G" to this my Affidavit is a copy of said letter. 13. That at the comir.encument of my employ with the Government of the Northwest Territories the first day of May, 1974, I was subjected to a one year term of probation and upon each transfer or promotion, to a six month term of probation by the Government of the Northwest Territories and was evaluated during such probationary periods.

14. That I have not been advised by the Com­missioner of the Northwest Territories in what

- 4 -"manner I failed to discharge my duties while employed as steno 4 v/ith the Department of Education, other than has been indicated in the letters from the Commissioner of the Northwest Territories dated December 14th, 1977 and January 3rd, 1978.

15. That the follov/ing parties are accept­able to myself for appointment as arbitrator and I am informed by Ed McCrae and do verily believe that such parties are likely to be acceptable to the Commissioner of the North­west Territories for appointment as arbitrator:

Anton Melnyk, Lawyer, City of Edmonton, Province of Alberta

Richard Abbott, Professor of Law, Carleton, Ontario

Duncan A. Stewart, Lawyer, Edmonton, Province of Alberta

Maurice Sychuk, Professor of Law, Edmonton, Alberta

Peter Owen, Lawyer, Edmonton, Province of Alberta

16. That I make this Affidavit in support of an application for the appointment of an arbi­trator pursuant to Section 32 of the Public Service Ordinance, R.O.N.W.T. 1974 C P-13, and Section 12 of the ARbitration Ordinance, R.O.N.W.T. 1974 C A-4."

The exhibits to this affidavit are as follows:

i OFFICE OF THE COMMISSIONER NORTHWEST TERRITORIES

"PERSONAL AND COt-̂ FlD̂ -NTIAL ,. Yellowknif e , N .W. T, XlA 2L9 HAND DELIVERED Ms. Kristine Rome, Department of Education.

Dear Ms. Rome: I have received a recommendation from the Director of the Ce-partJr.ent of Education that you be rejected fro.m emiployment dur­ing your probationary period.

I have reviev;ed r!r. Lev.'is' rccor?-r;>endation and find that you liave not performed th-e duties of your position in a v;holly sati.s fac­tory manner during your period of probation.

Therefore, in accordance v/ith section 20 of the Public Service Ordinance, I have decided to terminate your employment in the Pi±)lic Service effective at 5:00 p.m. on Vi'ednesday, Deceirber 14, 19 77.

I am sorry things have not v.'orV.ed out for you, and in considera­tion of -this you v/ill receive salary up to and including Decc-inber 31, 19 7 7. ' / ^ , . . TUIS Id ZV.'^IBIT " --^-y— Yours s i nce r e ly . Tcfcrrzn to in (A^.lydyy of ^...fCi<^/-^.yzy'y^--^-------^-S!:-nr'' '.,/j!C hy iliy ....yy. S . M . Hodgson, ^ . ,, ., T ^ Coinxaiss ioner . \\ 'v \> i \ \ A d^T-Z-.z•:"•-.• \:'-zZ'zz-z~'-^ '-• [•-' ^^

- 5 -CANADA

- 6 -I 22 December 19 77

" DELIVERED BY HAND Mr. S. Hodgson Comimi s s i on c r Government of N.W.T. Yellowknife, N.W.T. XOE IHO

Dear Hr. Hodgson: Re: Kristine Ror.e The purpose of t h i s l e t t e r i s to advise you t h a t I am a' r e p r e s e n t a t i v e of Ms. Rome and t l iat I am ajPpealing tlie r e j e c t i o n of Ms. Rome v;ithout cause during probi i t ion. I v / i l l be prepared to meet v/ith you at your e a r l i e s t convei-iiencG to d iscuss t h i s matter more f u l l y . our p o s i t i o n thiut iis. Foz.e sliould l̂ e r e - i n s t a t e d as an eraployG?e of tii^' Public Service of the Governir.ent of Nortl-iwest T e r r i t o r i e s v;ith a l l r ig- i ts and bene f i t s and no lo s s of monies. Your prompt a t t e n t i o n to tl:iis n-iattcr v/ould be app rec i a t ed . Yours t r u l y . m/s IS ExnnuT ^'JLII. '̂̂ Z/ , / yy/ ^JSJX'J. i. T.uzu:..... X:.'. z'. L(y. E. McRae Sivorn hij.zc -v,- .'.v, v CO: K. Rome day of.!^jy:<^-:^''yjC'/.yi).

I t i s Tcfu.zz ZJ in z'.z- .•IJj'Jarii of y • I* ,-0 joyif A '^^zz'.'Z zzz ,'•.-' ."''-^ "; r.'j '?r Ih" : i i ; ^ ^^

- 8 -BOX lUG Y[LLO.V.';:iiF£ CV.T \ TEt <03 Z n ' M Z y-U-LLz .̂ £-iCTr£ cz-^izodalLon DATE: 6 January 197 8

"Mr. S. Hodgson Commissioi-ier ' • Government of N.V?.T. • • . Yellowknife, N.W.T. Dear Mr. Hodgson: Re: Kristine Rome . • Please be advised that I have received your letter of 3 January in v;hich you state that lis. Rome v/as dismissed for cause and your el­ciboration of that cause.

It is the opinion of this v/riter that Ms. Rome is nov/ considered to be di.smis:jed and that your letter of 3 January is in ansv/er to an appeal for reconsideration.

Accordingly, it is the position of this v/riter that Ms. Rome can nov/ appeal, this unjust disi.-iissal to an arbitrator pursuant to the Ta'bitration Ordi.nancc.

Therefo.re, it is respi>ctive]y submitted that this matter should be referred to ci Board of Jixbitration constituted as follo;vs: one person appointed by each party and a mutually satisfactory cliairiran to be agreed uo by tne parties. . - . Please be advised that Hs. Rome's nominee to the Board of 7o:bitration is: •Mr. J. S. Dreckcnridge

P.O. Box 1530 • .• Y e l l o v / k n i f e , N.VJ.T. (403) 873-5G70 t h i s m a t t e r w T i H l l IS , b I e P \ . : : r f r . n p rr r ^ o T O --i £i t '> o iv h r -— -J-Your p r o r - p t a t t e n t i o n t o - • , ' ^ " " " '^ '•' 'y '^Ijldiiiitof \ Yours t r u l y , •A/.C.s'./://?'^-— /f^ ,, .<x ^ 4^^'-/l.^o • ^''''' '̂ '̂ '-̂ '̂--̂ '̂̂ -̂' E„ HcRae ^^1/ ^(•^^^•••y^yjiy.^j^x). J9 yf Executive Scoretary-Trca:-urer \ \ ^̂ '-, \ ._\: ^ "^y^p - • '-yy-y'W^Z ^ ^^^^^^^^ ^

OFFICE OF THE COM.MISSIO.NER i ' N O R T H W E S T TERRITORIES CANADA

"Mr. E. McRae, E x e c u t i v e S e c r e t a r y - T r e a s u r e r , The N o r t h w e s t T e r r i t o r i e s ' • '- . P u b l i c S e r v i c e A s s o c i a t i o n , Box 1 1 1 6 , :' Y e l l o w l c n i f e , N.W.T. Dear Mr. McRae: Rejection on Probation - Mz. Kri.stino Rome Your letter of January 6, 1978, is misleading in that it • infers I-ls. Rome v/as dismissed for cause fro.Ti the Public Service. I must point out to you that Ms. Rome was not dismissed. She v/as rejected on probation, in accordance with Section 20 of the Public Service Ordinance.

Section 20 establishes my right to reject an ei?.ployee for cause during a probationary period. Although I did-recon-sider the matter at your request, there is no appeal against my decision provided in the Public Service Ordinance. There is therefore no matter to refer to an Arbitration Board.

Yours sincerely.

s .M. Hodg;3on, TIJISISIWJIIBIT". /- "•Cor-Tii s s i o n e r . refzzz.I to in me .ijydavii of

^.Iz/<'./Syzy/.cz....yif,f^j/.cr.. Sizoni h'.jj.'z iz.c iiiii^ ...":...'•

9 -Y e l l o v / k n i f e , N.W.T. • JCIA 2L9

- 10 -\ •ILL m 873-5668 lJn.d;uz ^.ziticz cz/fiiodallon DATE: 2 5 J a n u a r y 197S DOUBLE RHGISTERED Mr. S . Hodgson . C o m m i s s i o n e r Gove rnmen t of N.V/.T. Y e l l o w h n i f e , N . h ' . T . Dear. H r . H o d n s o n : Re; Kristine Rome It is with considerable interest that this v.'ritcr noted ' your correspondence of 16 January 1978 in \;]-iich you state, "...Ms. Rome v/as not dis ni 1 s s e d. "

Upon consultation with Ms. Rone, this v.'ritcr finds that she is not working for the Public Service and that slie lias •not resigned. It is tliis writer's opinion tiiat tliere can be no' other conclusion otlier than slie \-/as disnissed.

Accoraingly, it is the positioii of tliis vvritcr tliat if, witliin seven clear days iroin the receipt of this letter, you .l\avc not i)rovided a noT,;inec to the Board of .Arbitration, \:e v/ill petition tlie North'.ves t Territories Supreine Court to appoint an arbitrator under the provisions of the Arbitration Ordiiiajice.

Yours t r u l y . rr THIS IS EXHIBIT "_-C-;—]" nferred io in i'zc Jfj'I:iit of tA/t^C- C . / ^ i J / J<aCz< /-. z^.yy:. '/Cyzyyi:^. N//"/ E'. McRae Sivorn hrf.'rc ''•••' "• >' .- ^. -^ Executive Secretary-Treasurer day of •'-'..:.<.•. •'• y. A- • - •/ -^ ^ ^-V^ ^^^,yy:yz-C.:-yz^ifz_

i : G : i : ; . : ; a t ; . ' - '•.:: s j} :••• .

- 11 -G O V E R N M E K l O F l l i ; { N 0 r i 7 H ; V i : S T T n R K I . 1 0 r ; i c S CANADA k Yellow]:nife, N.V'.T XlA 2L9 " POUBl'l̂ Hl-G 1STERED January 2 7, 19 7S;N Mr. E. McRae, Execut ive Sec re tary-Trc as ure r, The Northv/est Territories Public Service Association, Box 1116, Yellow]-:nifc, N.V.'.T.

Dear Mr. McRae: Kristine Rome This is to ac;:nov/ledgc your letter addressed to the Commissioner on the above matter and dated January 25, 1978.

The position of this Government is tJiat the individual v/as rejected during probation and as a result of the provision of Section 32 of tlie Public Service Ordinance, reference to arbitration is not applicab^

In arriving at this conclusion, v/e have made note of the distinction made v/itliin the Ordinance betv/cen dismissal and rejection on probation

Yours sincerely. cr< R.Il . B a t e s , D i r e c t o r , D e p a r t m e n t of P e r s o n n e l . " cc: Cor:j".issioner Assistant Co:.::.ii5sioner Tins IS LXFJBIT " lyLffy^ icfcrrcl Iv ii ine .Ifz/zill of fn.A-L i zJ-y< z yi:zy...:.,/Ccy\ oworn ^-/'./'•'' /V' ' '.M.v t.^zzzzyz-r: z. ,.zl.zy" I ' - v ^

- 12 -The respondent filed the affidavit of Robin \ H. Bates which reads as follows:

" I, Robin H. Bates, of the City of -Yellowknife in the Northwest Territories, Director of Personnel, Government of the Northwest Territories, MAKE OATH AND SAY as follows: 1. THAT as the Director of Personnel, I have personal knowledge of the employment records of employees of the Government of the Northwest Territories. 2. THAT on or about the 15 day of July, 1977, Kristine Rome, an employee of the said Government in the position of Steno III, made application for the position of Steno IV.

3. THAT on the 8 day of August, 1977, the said Kristine Rome was advised of her appoint­ment to the position of Steno IV effective August 22, 1977, and annexed hereto and marked "A" is a copy of the letter of appoint-ment.

4. THAT the said appointment was made from within the public service, and that the Com­missioner did not further reduce or waive the probationary period pursuant to subsection 19(3) of the Public Service Ordinance." Exhibit "A" to this affidavit reads as follows "Kristine Rome, Site 5, Box 47, YELLOWKNIFE, N.W.T.

Dear Kristine: Congratulations on your promotion to the position of Steno IV with the Department of Education in yellowknife. Mr. G. Mulders will be your super­visor and your salary will be increased to $13,531 per annum. Your promotion is subject to a six month probationary period and we'd like you to start on August 22, 1977.

I - 13 -"I am sending this letter in t//o copies and I'd like you to read the position description we've attached. Please sign the second copy of the offer and return it to me as con­firmation of your acceptance.

Please contact me if you have any questions or you'd like to discuss the offer."

Yours sincerely.

Jean M. Fowler, Staffing Officer, Depar-tment of Personnel. FOWLER/kb End . ACCEPTANCE OF APPOINTMENT I accept the appointment offered in the above letter and I've read the attached position description. "Kristine Rome" ' 11 August 1977 (Signature) (Date) From the foregoing material it will be seen that the Applicant seeks to appeal what could be characterized as the termination of her employment with the Government of the Northwest Territories after serving in various capacities since about May 1, 1974. At the hearing of this Application Counsel for the Applicant made it quite clear that the Applicant was seeking the appointment of an arbitrator so that the issues between the parties, including any jurisdictional issue could be determined by the arbitration tribunal once it was constituted. Counsel for the Applicant submitted that the primary jurisdiction to

- 14 ­i make decisions on preliminary matters such as arbitrability rests with the arbitration tribunal once it is duly appointed. In other words all evidence relevant to the issue of juris­diction should be placed before the arbitration tribunal so that it could determine whether or not there is jurisdiction to hear the Applicant's appeal. In the event that this position was rejected learned Counsel for the Applicant asked for the trial of an issue on the preliminary question of jurisdiction with leave to call viva vice evidence which might be relevant to the issue but which in his view should be placed before the arbitration tribunal. Learned Counsel for the Respondent initially sub­mitted that this Court should not appoint an arbitrator unless the Applicant makes out a prima facie case that the arbitration tribunal would have jurisdiction to hear and determine the matter in issue. Learned Counsel for the Respondent resiled from this position and indicated that there should be at least some evidence that the arbitration tribunal would have juris­diction over the issue raised. Learned Counsel for the Respondent summarized his position as follows: (1) The Applicant has ceased to be an employee by operation of statute and accordingly there is no right to grieve or appeal the termination of her employment.

(2) There is no evidence that the Applicant was dismissed and the right to appeal to an

- 15 ­i arbitration tribunal applies only to the dismissal of an employee. In this connection the following inter alia sections of the Public Service Ordinance R.O.N.W.T. 1974 Ch. P-13 were referred to along with the affidavit evidence r "19. (1) An employee shall be considered to be on probation for a period of one year after he has taken up the duties of his position or for such longer period as the Commissioner may establish for any class or grade of the position.

(2) The Commissioner may, on the recommendation of the head of a depart­ment extend the probationary period of an employee, but the period of extension ' . shall not exceed the period specified in or established in relation to that posi­tion under subsection (1). (3) Where an appointment is made from within the public service, the probationary period shall be reduced to six months and the Commissioner may, if he considers it appropriate, further reduce or waive the probationary period." "20. (1) The Commissioner may, on the re­commendation of the head of a department, at any time during the probationary period of an employee, reject that employee for cause.

(2) An employee who has been rejected under this section ceases to be an employee."

"22. The tenure of office of an employee is, subject to the provisions of this Ordinance and the regulations made .there under and, unless some other period of employment is specified, for an indeterminate period."