Apropos - Spring 2006

• New Workforce in Europe
• From the Ceo
• Communication Tip
• You Tell Me
• Did you know?
• Focus on Fitness
• Think outside the box
• Social Events at Headquarters
• NPP Unraveling the mystery - Part 2 of 3
• How inclusive are you?
• In Memoriam - Marian Bielec
• Human Resources' New Vice-President
• SISIP Financial Services' New President
• Comings and Goings
• New Employees At CFPSA HQ
• Change Of Position At CFPSA HQ
• Ask an Ado
• Official Connecting CF Youth Website Launch
• Crowning the Customer
• Shilo civilian off to Kandahar
• Corporal wins $52K
• We can't forget those who serve
• Troops at CFB Gagetown get HIP
• Action people at Valcartier
• Saying Thanks
• PSP Manager Loses Hair for The United Way
• Valcartier - PSP Pre-Deployment Support
• The March 1st I Quit! Challenge
• Grand opening of the CFB Petawawa Army Fitness Centre
• Language of Work - It's your right!
• Kudos Corner
• Winner Of Find A Typo

PREVIOUS APROPOS

• Volume 5, Issue 2
• Volume 5, Issue 1
• Volume 4, Issue 3
• Volume 4, Issue 2
• Volume 4, Issue 1
• Volume 3, Issue 3
• Volume 3, Issue 2
• Volume 3, Issue 1
• Volume 2, Issue 3
• Volume 2, Issue 2
• Volume 2, Issue 1
• Volume 1, Issue 4
• Volume 1, Issue 3
• Volume 1, Issue 2
• Volume 1, Issue 1

Non-Public Property:
Unraveling The Mystery – Part 2 of 3

By Mary Turner

This is Part Two in a three-part series of articles explaining the unique and often complex world of Non-Public Property.

Pursuant to their authority under the National Defence Act, the Chief of the Defence Staff and Commanding Officers have established a number of NPP organizations. These organizations administer and deliver NPP programs, services and activities, and assist the Department in delivering departmental programs and services in support of operational readiness and effectiveness. At the national level, these organizations include CFPSA, CANEX, SISIP FS and PSP. At the Base, Wing and Unit level, these organizations are numerous, and include messes, museums, cable television operations, and sports and recreational clubs and facilities.

This article discusses the legal status of these organizations and some of the implications of that status.

In general, the law recognizes individuals, partnerships and corporate entities as distinct legal “persons”, capable of suing or being sued in their own names, and capable of entering into contractually binding arrangements in their own names. Unless legislation provides otherwise, most government organizations, including NPP organizations, are not distinct legal “persons” in their own right. That is, they are not capable of suing or being sued in their own names, or entering into legally binding contracts in their own names. Further, whereas government Departments are creatures of statute, specifically established or created by law, NPP organizations have been established, not by statute, but by decisions of those responsible for administering NPP.

Legally, NPP organizations are therefore considered to be “administrative constructs” of either the CDS or Commanding Officers acting in their official NPP capacities. As such, whenever these organizations have to be described for legal purposes, such as in a contract or lawsuit, they are described as “Her Majesty the Queen in right of Canada”. For example, CFPSA is legally described as “Her Majesty the Queen in right of Canada, as represented by the Chief of the Defence Staff in his non-public property capacity, through the Canadian Forces Personnel Support Agency (“CFPSA”)”.

The fact that NPP organizations constitute “Her Majesty”, at law, is interesting from a number of different perspectives. For example, if a NPP organization is to be charged with committing any offence under federal legislation, such as under environmental, tax or tobacco related offences, then the result would be that Her Majesty (in one capacity) would be charging Her Majesty (in a different capacity) with an offence. This is called an “R. vs. R.” (Regina versus Regina) situation, and no information can be laid against the NPP organization without first acquiring the approval of the Deputy Attorney General for Canada.

In addition, pursuant to the Department of Justice Act, Justice Canada is responsible for the legal affairs of the government as a whole and for providing legal services to individual departments and agencies through functions related to the offices of the Attorney General for Canada and the Minister of Justice. These services include providing legal advice, preparing legal documents, drafting legislation, regulating or conducting litigation, and overseeing all legal mechanisms used to achieve the overall objectives of the government. Therefore, the Attorney General for Canada will represent NPP organizations when they are suing or being sued by other persons, and all other legal services to NPP organizations must be provided by the Department of Justice, or by legal advisors approved through the Department of Justice.

Contract law requires that the parties to contracts not only be legal “persons”, but that they be “separate and distinct” legal persons. As a consequence, NPP organizations cannot enter into contracts with other organizations that are also legally “Her Majesty the Queen in right of Canada”, such as the Department of National Defence. At law, they are the same legal “person” (Her Majesty), even though that legal person is represented by different officials acting in different capacities, such as the Minister of National Defence on the one hand, and the Chief of the Defence Staff, in his non-public capacity, on the other. Therefore, for example, NPP organizations are not eligible to bid on Departmental Requests for Proposals for supplying goods or services to the Department, because the successful bidder must be capable of entering into a contract with the Department that will govern the terms and conditions of the supply to Her Majesty of the goods or services.

While NPP organizations cannot legally enter into contracts with the Department, they can and do enter into arrangements that are not contractual in nature, usually to assist the Department with its delivery of programs and services in support of operational readiness and effectiveness, or publicly funded morale and welfare programs and services. These types of arrangements or agreements between the Department and NPP organizations are normally memorialized through the use of Memoranda of Understanding or Service Level Agreements. While intended to be morally and politically binding, there is no intent that either organization ever sue or be sued by the other for a failure to comply with an obligation contained in the written arrangement.

Another important question is whether or not NPP organizations are legally a “part” of the Department of National Defence. The short answer is “no”. Although NPP organizations are “Her Majesty”, the Department of National Defence is a separate creature of statute. The Canadian International Trade Tribunal (the “CITT”) has accepted our position that NPP organizations are not a part of the Department in at least one case, and therefore not subject to the jurisdiction of the CITT with respect to NPP procurement policies and procedures. The determination that NPP organizations are independent of the Department is based, in part, on the fact that NPP staff is employed by Staff of the Non-Public Funds, Canadian Forces, a Separate Employer under the Public Service Labour Relations Act. In the third and final article on NPP, I will address the legal issues associated with being employed by a Separate Employer.