Judgments

[1993] 3 F.C. 640

T-2052-89

John Petryshyn (Plaintiff)

v.

Her Majesty the Queen (Defendant)

T-2053-89

David Anderson (Plaintiff)

v.

Her Majesty the Queen (Defendant)

T-2054-89

Rachel Tremblay (Plaintiff)

v.

Her Majesty the Queen (Defendant)

T-2055-89

Ugo Benedetti (Plaintiff)

v.

Her Majesty the Queen (Defendant)

T-2056-89

Gayla Vidal (Plaintiff)

v.

Her Majesty the Queen (Defendant)

Indexed as: Petryshyn v. Canada (T.D.)

Trial Division, Strayer J.—Ottawa, April 26 and May 31, 1993.

Crown — Claim for salary and benefits lost by members of Immigration Appeal Board upon its abolition, replacement by Immigration and Refugee Board — Unclear from statements of claim whether actions for breach of contract or for compensation due as matter of law pursuant to original appointments — Whether Parliament intended to abolish offices without compensation — Whether grant of office same as grant of property — Legislative history of bill to amend Immigration Act, 1976 — If performance of contract rendered impossible by legislation, contract is discharged — If office abolished by statute, illegal for executive to continue payment of salary — No right acquired by appointment to office except right subject to determination if office abolished by statute — Medieval concept offices property which could be sold or inherited evil system having no place in modern Canadian history — That provision in amending legislation denying compensation dropped to get bill through Senate not indicating Parliamentary intent salaries to be continued — Unfair, coercive for P.C.O. to have made offers of temporary appointments to new Board conditional on waiving any claims against Crown — Amounting to attempted sale of public offices — Plaintiffs in effect asked to pay for new Order in Council appointments — Unfair treatment of plaintiffs may affect question of costs — Travel, living expenses of Board member residing at Victoria, serving at Vancouver — Plaintiff entitled to recover based on Immigration Act, 1976, s. 62.

Construction of statutes — Interpretation Act, s. 42 providing every Act to be construed so as to reserve to Parliament power of modifying any power, privilege or advantage thereby vested or granted to any person — Statute under which plaintiffs appointed to former Immigration Appeal Board granted “advantages” subject to cancellation — Rule repeal of statute not affecting any right accrued under that statute to be construed in context — Whether Parliament intended depriving plaintiffs of right to compensation when offices abolished — Intention of Parliament not shown by fact provision in bill denying compensation dropped to get Senate approval — Meaning of “ordinary place of residence” in Immigration Act, 1976, s. 62.

These were actions to recover income and benefits the plaintiffs would have received as members of the Immigration Appeal Board had that Board not been abolished and had they completed the terms of their original appointments. Plaintiff, Anderson, also claimed reimbursement of travel and living expenses less any commuting allowance actually received pursuant to Immigration Act, 1976, section 62. The plaintiffs, all of whom had been active in the Liberal Party, had been appointed to the Board under either that Act or earlier legislation and had from 4 1/2 to 7 1/4 years remaining in their terms. On January 1, 1989 amending legislation, enacted after the Progressive Conservative Party came to power, replacing the Immigration Appeal Board with the new Immigration and Refugee Board came into effect. The plaintiffs were offered two-year appointments as “full-time temporary” members of the new Board on condition that each sign a waiver of any claim against the Crown in respect of the termination of his or her appointment as a member of the Immigration Appeal Board. The plaintiffs refused to sign such a waiver, arguing that, in the absence of a clear statement of intention to do so, Parliament should not be taken as having intended to deprive them of a right to compensation when it abolished their offices. They relied on Manitoba Fisheries Ltd. v. The Queen, wherein the Supreme Court of Canada held that unless the words of a statute clearly so demand, legislation is not to be construed so as to take away the property of a subject without compensation. They also invoked Beauregard v. The Queen in right of Canada, a decision of the Federal Court of Appeal, for the proposition that the grant of an appointment to an office is akin to a grant of property. Thus the presumption against Parliament taking property without compensation applied to the abolition of that office. They also argued that the legislative history of the amending legislation indicated that Parliament had not intended to deny them compensation. When originally introduced the bill contained a subclause which expressly denied compensation to persons such as the plaintiffs. During the course of passage that subclause was withdrawn. It was argued that having considered a proposal expressly to deny compensation and having failed to adopt that proposal, Parliament could not have intended to deny compensation. The defendant relied upon Reilly v. The King, a decision of the Judicial Committee of the Privy Council, for the proposition that the abolition of an office abolishes the salary which attaches to it.

Immigration Act, 1976, section 62 provides for the payment of reasonable travel and living expenses incurred by Board members while absent from their ordinary place of residence in the course of their duties. Anderson lived in Victoria and commuted to Vancouver where he served on the Board from his appointment in March, 1984 until February, 1986 (when he moved to Vancouver) and from mid-1988 until the end of that year. He received a commuting allowance of $350 per month prior to moving to Vancouver.

Held, the actions for loss of income and benefits in respect of abolished offices should be dismissed; the action for reasonable travel and living expenses incurred by Anderson should be allowed.

In the Reilly case it was held that the rule that unless Parliament clearly says so, the repeal of a statute does not affect any right accrued under that statute, had to be considered in the particular context of the abolition of an office and that the right to a statutory office is from its inception, by definition, subject to termination by repeal of the statute and is not a normal “acquired right”. Once an office has been abolished by statute, it would be illegal for the executive to continue paying any salary. Reilly has been followed expressly in Canada, and nothing suggests that it has been departed from in Canadian case law. There was no basis upon which to distinguish the case at bar from Reilly, a binding decision. To the extent that the plaintiffs’ claim was based on contract, any implied contract they had with the Crown became impossible to perform as of December 31, 1988. To the extent that their claim was based on the deprivation of a grant of office, the office was always implicitly terminable by statute, having been created by a sovereign Parliament. Interpretation Act, subsection 42(1) provides that every Act shall be construed so as to reserve to Parliament the power of modifying any power, privilege or advantage thereby vested in or granted to any person. The statute under which the plaintiffs were appointed granted “advantages” which were always subject to cancellation by a subsequent statute abolishing their offices. No benefits or emoluments can be claimed in respect of their offices after they were abolished.

The Manitoba Fisheries case did not apply. It involved property, namely the goodwill pertaining to the plaintiff’s business, which existed independently of statute and which, in the normal course of events, would have continued indefinitely. It is inappropriate to speak of the “property” in an office. While medieval common law contemplated the sale and inheritance of offices, this led to evils and the practice was abolished by 19th century legislative reforms. Nothing in the modern history of Canada supports the concept of public offices as property. The statement in Beauregard that the grant of an office entitled the appointee to the accompanying salary in much the same way as a grant of money or land vests title to the money or the land in the grantee, was mere obiter dicta and Thurlow C.J. apparently meant to say that an office is not property although much the same. An appointment by Order in Council to a position created by statute carries with it the implied condition that the appointment and the salary it carries will continue only as long as the statute so authorizes. When Parliament abolishes an office it must have sanctioned the normal consequences of such abolition, namely to terminate any salary connected with that office. Nor can any contrary intention be ascertained from the fact that the provision in the original bill expressly denying compensation was later dropped to get the legislation through the Senate.

As it might have an impact on the question of costs, it had to be said that the plaintiffs were treated unfairly. It was unfair and coercive to have made the offer of any new appointment conditional upon a waiver of any claim against the Government or its representatives. Plaintiffs were, in effect, asked to pay for a new Order in Council appointment. This was an abuse of power, amounting to the attempted sale of public offices. It was surprising that the Governor in Council would have been advised to proceed in such manner.

Anderson was entitled to be paid reasonable travel and living expenses incurred by him during the period from his appointment to early 1986. Nothing in the statutes or regulations specified where a member of the Immigration Appeal Board must reside. Nor was there any reason to infer that a member was obliged to reside in the city where he was assigned to serve. It was conceivable that with a board that had appointments for varying periods, and where members were expected to serve at times in various centres across the country, that there would be no rigid rule that every member must live in the city of his principal place of work. A reasonable interpretation of the phrase “ordinary place of residence” does not mean that a member could unilaterally establish another ordinary place of residence and then expect to be paid for commuting from it to work. That phrase involves a question of fact as to where one is found at the time of appointment. If one is induced to move to the city where the relevant board office is situated and is compensated therefore by the payment of relocation expenses, then that becomes his ordinary place of residence and he ceases to receive travel and living expenses because he has accepted relocation costs.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

An Act to amend the Immigration Act, 1976 and to amend other Acts in consequence thereof, S.C. 1988, c. 35.

Bill C-55, An Act to amend the Immigration Act, 1976 and to amend other Acts in consequence thereof, 2nd Sess., 33rd Parl, (first reading 5 May 1987, House of Commons), s. 38.

Federal Court Rules, C.R.C., c. 663, R. 324.

Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 60, 62.

Immigration Appeal Board Act, S.C. 1966-67, c. 90, s. 3.

Interpretation Act, R.S.C. 1927, c. 1.

Interpretation Act, R.S.C., 1985, c. I-21, s. 42.

Judges Act, R.S.C., 1985, c. J-1, ss. 34, 35, 36, 37, 38 (as am. by R.S.C., 1985 (1st Supp.), c. 11, s. 2).

CASES JUDICIALLY CONSIDERED

FOLLOWED:

Reilly v. The King, [1934] 1 D.L.R. 434; [1934] A.C. 176; [1934] 1 W.W.R. 298 (P.C.); affg [1932] 2 S.C.R. 597; affg [1932] Ex. C.R. 14.

DISTINGUISHED:

Manitoba Fisheries Ltd. v. The Queen, [1979] 1 S.C.R. 101; (1978), 88 D.L.R. (3d) 462; [1978] 6 W.W.R. 496; 23 N.R. 159.

CONSIDERED:

Beauregard v. The Queen in right of Canada, [1984] 1 F.C. 1010; (1983), 148 D.L.R. (3d) 205; 48 N.R. 252 (C.A.); Attorney-General v. DeKeyser’s Royal Hotel, [1920] A.C. 508 (H.L.).

REFERRED TO:

Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; (1991), 83 D.L.R. (4th) 297; [1991] 6 W.W.R. 1; 58 B.C.L.R. (2d) 1; 127 N.R. 161; R. v. Beauchamp (1990), 31 C.C.E.L. v 194; 31 F.T.R. 50 (F.C.T.D.); Wicks v. A.G.B.C., [1975] 4 W.W.R. 283 (B.C.S.C.); Welch v. New Brunswick (1991), 37 C.C.E.L. 129 (N.B.Q.B.).

AUTHORS CITED

Canada Senate. Standing Committee on Legal and Constitutional Affairs. Proceedings. Issue no. 74 (May 10, 1988).

Holdsworth, Sir William. A History of English Law, 7th ed. London: Methuen & Co. Ltd., 1956.

ACTIONS to recover income and benefits plaintiffs would have received as members of the Immigration Appeal Board had it not been abolished prior to the completion of their terms. Actions dismissed.

ACTION for reimbursement of travel and living expenses less commuting allowance already received pursuant to Immigration Act, 1976, section 62. Action allowed.

COUNSEL:

Ronald D. Lunau for plaintiffs.

Donald J. Rennie for defendant.

SOLICITORS:

Gowling, Strathy & Henderson, Ottawa, for plaintiffs.

Deputy Attorney General of Canada for defendant.

The following are the reasons for judgment rendered in English by

Strayer J.:

Relief Requested

The plaintiffs each claim for recovery of the amount of income and benefits they would have received as members of the Immigration Appeal Board had that Board not been abolished effective January 1, 1989 and had they served out the terms for which they were originally appointed to that Board.

The plaintiff David Anderson also claims for reimbursement of certain travel and living expenses said to be incurred by him while a member of the Board and said to be reimbursable pursuant to section 62 of the Immigration Act, 1976.[1]

Facts

Loss of Salary and Benefits

The Immigration Appeal Board Act of 1967[2] provided for a Board of not less than seven nor more than nine members to be appointed by the Governor in Council. Subsections 3(2) and 3(3) further provided as follows:

3. …

(2) Subject to subsection (3), each member shall be appointed to hold office during good behaviour but may be removed by the Governor in Council for cause.

(3) A member ceases to hold office upon attaining the age of seventy years.

The plaintiffs Tremblay and Benedetti were appointed under this Act with the result that they were entitled to serve, during good behaviour, to the age of seventy.

The Immigration Act, 1976[3] reorganized and re-established the Immigration Appeal Board. Subsection 60(5) of that Act provided for the continuation in office, on their original terms, of those persons already members of the Board. Thus the positions of Tremblay and Benedetti were to continue during their original term. Subsection 60(1) provided that new appointees to the Board should serve during good behaviour “for a term not exceeding ten years”. The plaintiffs Petryshyn, Anderson and Vidal were each appointed to ten-year terms pursuant to this legislation.

The plaintiffs have provided the following particulars which are not in dispute. The “Term Outstanding” shown in Table 2 refers to the remainder of their original terms that would normally have run beyond January 1, 1989 had their offices not been abolished as of that date.

TABLE 1

PARTICULARS OF APPOINTMENT

Name	Date of Appointment	Term	Expiry
Rachel Tremblay	September 28, 1972	Life	Age 70 (Aug.21/95)
Ugo Benedetti	September 6, 1967	Life	Age 70 (Mar.16/96)
David Anderson	March 1, 1984	10 years	Mar. 1,1994
John Petryshyn	August I, 1983	10 years	Aug. 1,1993
Gayla Vidal	August 1, 1983	10 years	Aug. 1,1993

TABLE2

AGE AND TERM OUTSTANDING AS AT

DECEMBER 31, 1988

Name	Age	Term Outstanding
Rachel Tremblay	63	6 years, 7 months
Ugo Benedetti	62	7 years, 3 months
David Anderson	51	5 years, 3 months
John Petryshyn	43	4 years, 7 months
Gayla Vidal	50	4 years, 7 months

The plaintiffs led evidence indicating that prior to appointment each of them had been active in the Liberal Party of Canada, or were closely related to Liberal members of Parliament, or both. Their counsel however confirmed that they were not suggesting that partisan politics played a part in the loss of their positions.

In September, 1984 a new government was formed by the Progressive Conservative Party. In 1987 that government introduced Bill C-55, An Act to amend the Immigration Act, 1976 and to amend other Acts in consequence thereof. Clause 38 of that Bill provided in part as follows:

38. (1) Subject to this section, the members of the former Board and the members of the former Committee cease to hold office on the commencement day.

…

(7) No person appointed to hold office as a member of the former Board or of the former Committee has any right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or any servant or agent thereof for ceasing to hold office under this section or for the abolition of that office by this Act, but the Governor in Council may, by order, authorize or provide for any such relief.

Bill C-55 was passed by the House of Commons with these provisions included. In the Senate however the Standing Committee on Legal and Constitutional Affairs recommended the deletion of subclause 38(7). It stated [issue no. 74, May 10, 1988, at page 31]:

The Committee thinks that it is much to be preferred in principle to provide just compensation for individuals who, having undertaken to provide services in reliance on stated terms, find at a later date that their services are no longer required. This would seem to be the equitable way to treat incumbent members and also reflects a principle that is firmly established in our law. Amendment 12(c) recommends that the “no right to compensation” provision be removed, thus restoring whatever legal rights these individuals would ordinarily possess.

This recommendation to delete sub-clause 38(7) was approved by the Senate. On the first reference back to the House of Commons that Chamber, as I understand it, rejected such an amendment but the Senate finally prevailed and the subclause was deleted. Bill C-55 was enacted and given royal assent on July 21, 1988.[4] It was brought into force on January 1, 1989 with the result that as of that date by virtue of what was then subsection 38(1) the members of the former Immigration Appeal Board ceased to hold office. The 1988 amendments provided in place of the former Immigration Appeal Board a new Immigration and Refugee Board consisting of two divisions, the Convention Refugee Determination Division and the Immigration Appeal Division. The Appeal Division was to consist of not more than 30 “permanent” members and such temporary members as might be appointed by the Governor in Council. The Refugee Division was to consist of not more than 65 full-time “permanent” members and such other “part-time permanent members, part-time temporary members and full-time temporary members” as, in the opinion of the Governor in Council the workload of the division might require. With respect to the “permanent” members of both divisions, they were to hold office during good behaviour for a term not exceeding five years. Temporary members of each division were to be appointed to hold office during good behaviour for a term not exceeding two years.

In contemplation of royal assent and the coming into force of the 1988 amendments, Mr. Gordon Fairweather, Chairman-Designate of the Immigration and Refugee Board, had recommended to the Minister of Employment and Immigration that all members of the previous Immigration Appeal Board (some 48) be offered appointments to the new Immigration and Refugee Board. Mr. Fairweather in his testimony confirmed that he wanted all of the previous members to continue to serve if possible including the five plaintiffs in this action. He explained, however, that because the new Immigration and Refugee Board had a somewhat different mandate from the previous Board, particularly in the refugee field, and because the Refugee Division was to operate in a non-adversarial way, he had to take into consideration how the best use could be made of the previous members as well as having to recruit many new members. The initial target was a board of about 120 members. Mr. Fairweather said it was also necessary to try to ensure that the Board would have offices in those cities with the largest caseload including the new caseload of refugees. He stated that he made his recommendations as to the length of terms for which particular former Board members were to be offered reappointment at particular locations, having regard to all these factors. The plaintiffs did not assert, nor was there any evidence to suggest, that the recommendations by Mr. Fairweather to the Minister were made other than in good faith and for purposes germane to the good administration of the revised Act.

The results for the five present plaintiffs were, however, serious and unfortunate. Without going into the details of the discussions between Mr. Fairweather or other Board representatives and these plaintiffs, it will suffice to say that in each case each plaintiff was ultimately sent an offer by the Associate Secretary to the Cabinet, Mr. John L. Manion. In each case this was an offer for a two-year appointment as a “full-time temporary member” of the Immigration and Refugee Board. In each case the offer was made conditional on the recipient signing a waiver of any claim against Her Majesty in respect of the termination of his or her appointment as a member of the Immigration Appeal Board. In each case the respective plaintiffs refused to sign such a waiver and therefore refused the offer.

From the evidence it is clear in the case of each that these plaintiffs had reasonable expectations, in taking their appointments to the Immigration Appeal Board, that they would be entitled to serve the full terms for which they were appointed. By the terms of their appointment they could only be dismissed for cause and there is not the slightest suggestion in the evidence that there was cause for dismissal of any of them: quite the contrary. Mr. Fairweather confirmed that he would have been happy to have them all continue on the new Board and the offers made to them, even for two-year appointments, show that they were regarded as competent and worthy potential members of the new Board. They had all in one way or another ajusted their lives accordingly on the assumption that they would continue on the Immigration Appeal Board for the periods of their appointment. They have all had great difficulty adjusting to the loss of office and have been able to earn little or no money since. Whatever the conclusions may be on the legal issues, the net result for these plaintiffs has been inequitable and harsh.

David Anderson’s Travel Claims

Mr. Anderson bases his claim on the following section of the Immigration Act, 1976 under which he was appointed.

62. Each member shall be paid such remuneration for his services as is fixed by the Governor in Council, and is entitled to be paid reasonable travel and living expenses incurred by him while absent from his ordinary place of residence in the course of his duties under this Act.

The order in council of February 23, 1984, appointing Mr. Anderson describes him as being of Victoria, British Columbia and it appoints him to be a member of the Immigration Appeal Board without any reference to the place where he is to serve. Mr. Anderson confirmed in cross-examination that he understood when he was appointed that he was expected to work at the Vancouver office of the Board. He continued to live in Victoria from his appointment effective March 1, 1984 until February, 1986, when he moved to Vancouver with his wife. They continued to reside there until the summer of 1988 when they moved back to Victoria. He therefore served on the Board in Vancouver from March, 1984 until February, 1986, and from mid-1988 until the end of that year, while living in Victoria and commuting.

Mr. Anderson was only fully paid for one trip to Vancouver in March, 1984, shortly after his appointment, which trip was obviously for the purpose of orientation. As early as April 10, 1988, he was advised by the Chief of Financial Services for the Board that

… the Immigration Appeal Board expects all employees to present themselves at their workplaces on their own time and at their own expense. Therefore, cost of transportation to and from Victoria and Vancouver are [sic] not reimbursed.[5]

Subsequently, on April 18, 1984, he was advised that while he was deciding whether to relocate to Vancouver he would be given “commuting assistance” for a period of up to nine months.[6] This apparently was designed to cover only the costs of transportation between Victoria and Vancouver and as clarified on June 25, 1984, would only be paid to a maximum of $350 per month. In the same memorandum of April 18 he was advised as to his entitlement in respect of the costs of relocation to Vancouver. When he did move to Vancouver his relocation costs were paid but it was made clear to him that relocation costs would not be payable if he chose to return to Victoria.[7]

For almost two years at the beginning of his appointment Mr. Anderson commuted regularly to Vancouver from Victoria, staying in hotels in Vancouver for part of the week. He paid his own expenses and from time to time carried on correspondence about the government paying these amounts. It is not disputed that he received the commuting allowance of $350 per month prior to moving to Vancouver. The Board took the position that, as quoted above, he was expected to get himself to work at his own expense and that it was prepared to pay the expenses of a move to Vancouver which it ultimately did. After a combination of circumstances obliged Mr. Anderson and his wife to move back to Victoria in the summer of 1988 he again commuted to Vancouver until the expiration of his term at the end of 1988. In respect of both the pre-February, 1986 period and the period of the last few months of his tenure he claims his approximate commuting costs minus the amount of the commuting allowance actually received by him in the first period. Briefly put, he relies on section 62 of the 1976 Act as quoted above, saying that in these two periods his “ordinary place of residence” was Victoria and therefore under that section he is entitled to “reasonable travel and living expenses incurred by him” while absent from that place of residence, namely while working for the Board in Vancouver.

Issues

There appear to be two issues:

(1) Is the defendant obliged to compensate the plaintiffs for the loss of salary and benefits they would have received had they been allowed to complete the original terms of office for which they were appointed, which terms were cut short by the abolition of the Immigration Appeal Board at the end of 1988?

(2) Is the plaintiff David Anderson entitled to reasonable travel and living expenses incurred by him while absent from his home in Victoria and performing Board duties in Vancouver?

Conclusions

Defendant’s obligation, if any, to pay compensation for lost terms of office

The statements of claim do not clearly articulate whether the plaintiffs’ claims are for damages for breach of contract or for compensation due as a matter of law to them pursuant to their original appointments. The argument presented on their behalf emphasized the latter although as will be indicated below I think the same considerations essentially apply to both kinds of claims.

The plaintiffs do not contend that Parliament lacked the authority to abolish their offices without compensation. The essential argument made on their behalf is instead one of statutory interpretation: that Parliament should not be taken to have deprived them of a right to compensation when it abolished their offices, in the absence of a clear statement of intention to do so. There are essentially two bases of argument in connection with the alleged lack of demonstration of parliamentary intention.

First, great stress is laid on the Supreme Court of Canada decision in Manitoba Fisheries Ltd. v. The Queen.[8] In that case Parliament had established a freshwater fish marketing corporation and gave it a commercial monopoly in the export of fish from Manitoba. It was allowed to licence others to export fish. The plaintiff had for some forty years engaged in the export of fish from Manitoba and it had built up a goodwill with its clientele. After the establishment of the freshwater fish marketing corporation no licence was issued to the plaintiff to export and it therefore went out of business. It brought an action for a declaration that it was entitled to compensation for the loss of its goodwill. Ritchie J. writing on behalf of the Court held that the goodwill amounted to property and he applied the recognized rule of construction of statutes that

unless the words of the statute clearly so demand, a statute is not to be construed so as to take away the property of a subject without compensation.[9]

The plaintiffs invoke the decision of the Federal Court of Appeal in Beauregard v. The Queen in right of Canada[10] where Thurlow C.J. for the majority stated, in referring to a commission appointing a judge:

The commission issues upon appointment of a judge by the Governor General under the authority of section 96 and the provincial statute setting up the office. It constitutes a grant both of the office with its authority and of the salary and other benefits attached by law at that time to the office as fixed by Parliament under section 99. The grant entitles the appointee to the salary so fixed in much the same way as a grant of money or land vests title to the money or the land in the grantee. It is something that cannot be taken from him except by due process of law. Due process may include expropriation by the authority of the legislature, but it is established principle that the legislature is not, in the absence of a clear expression of intent to the contrary, to be taken as intending to expropriate without due compensation.[11]

This passage is relied upon as authority for the proposition that the grant of an appointment to an office is akin to a grant of property. Thus, it is said, the presumption against Parliament taking property without compensation applies to the abolition of that office which is not to be without compensation unless Parliament expressly so states.

The other related argument in this connection is that the legislative history of Bill C-55 which became law in July, 1988 indicates that Parliament did not intend to deny these plaintiffs compensation. As indicated above, the Bill when originally introduced in 1987 contained subclause 38(7) which expressly denied compensation to persons such as the plaintiffs. However during the course of passage of the Bill that subclause was withdrawn, seemingly because of the objections of the Senate to an express denial of the right to compensation. It is thus argued that, Parliament having considered a proposal expressly to deny compensation and having failed to adopt that proposal, it must be taken not to have intended to deny compensation.

The position of the defendant essentially is that the abolition of an office abolishes the salary which attaches to it. The central authority in support of the defendant’s position is the decision of the Judicial Committee of the Privy Council in Reilly v. The King.[12] This was an appeal from Canada in which the Judicial Committee confirmed the decisions of the Supreme Court of Canada [[1932] 2 S.C.R. 597] and of the Exchequer Court of Canada [[1932] Ex. C.R. 14]. The facts were quite similar to the present situation. The plaintiff had been a member of the Federal Appeal Board since 1923. This was a body established under an Act of Parliament which, apparently, dealt with appeals concerning pensions. Reilly was reappointed in 1928 for a further term of five years. (Although that appointment was subject to termination in the event of a reduction in the Board’s work, this event never arose.) On May 30, 1930 the Parliament of Canada adopted legislation abolishing the Federal Appeal Tribunal and replacing it with a Pensions Tribunal. Reilly’s office was thus abolished and he was not appointed to the new Tribunal. Nor was any compensation paid to him. He sued in contract in respect of the three years remaining in his original term. He lost in both the Exchequer Court and in the Supreme Court of Canada. In the Privy Council Lord Atkin stated as follows:

In this particular case their Lordships do not find it necessary to express a final opinion on the theory accepted in the Exchequer Court that the relations between the Crown and the holder of a public office are in no degree constituted by contract. They content themselves with remarking that in some offices at least it is difficult to negative some contractual relations, whether it be as to salary or terms of employment, on the one hand, and duty to serve faithfully and with reasonable care and skill on the other. And in this connection it will be important to bear in mind that a power to determine a contract at will is not inconsistent with the existence of a contract until so determined.

But the present case appears to their Lordships to be determined by the elementary proposition that if further performance of a contract becomes impossible by legislation having that effect the contract is discharged. In the present case the office held by the appellant was abolished by statute: thenceforward it was illegal for the executive to continue him in that office or pay him any salary: and impossible for him to exercise his office. The jurisdiction of the Federal Appeal Board was gone. The position, therefore, seems to be this. So far as the rights and obligation of the Crown and the holder of the office rested on statute, the office was abolished and there was no statutory provision made for holders of the office so abolished. So far as the rights and obligations rested on contract, further performance of the contract had been made by statute impossible, and the contract was discharged. It is perhaps unnecessary to add that discharged means put an end to and does not mean broken. In the result, therefore, the appellant has failed to show a breach of contract on which to found damages.

It was, however, contended that this result is avoided by the provisions of the Interpretation Act, R.S.C. 1927, c. 1, s. 19:—

“Where any Act or enactment is repealed … then, unless the contrary intention appears, such repeal or revocation shall not …

“(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the Act, enactment or regulation so repealed or revoked.”

The answer is obvious. There was no right acquired under the appointment to the office except a right which from the inception was subject to be determined by the office being abolished by statute. The propositions which establish that there was no breach of contract negative any protection under this section.[13]

I understand the Judicial Committee to be saying that to the extent that there was any claim in contract the contract has been rendered impossible of performance by the abolition of the office. Therefore the contract would be terminated and no money could be claimed under it from that point onward. To the extent that the claim was based on the grant of an office under statute, the appropriation of funds for paying the office holder would no longer exist. It will be noted that in that case another canon of statutory interpretation, as codified by the Interpretation Act[14] was invoked: that unless Parliament clearly says so, the repeal of a statute does not affect any right accrued under that statute. But the Judicial Committee held that this rule of statutory interpretation had to be considered in the particular context of the abolition of an office and that the right to a statutory office is from its inception, by definition, subject to termination by repeal of the statute and is not a normal “acquired right”.

The Reilly case has since been followed expressly in Canada[15] and no authority has been cited to me to suggest that it has been since departed from in Canadian jurisprudence.

Even though I have concluded that the plaintiffs have not been treated fairly in this case I am unable to distinguish the Reilly decision which is binding on me. To the extent that the plaintiffs’ claim is based on contract any implied contract they had with the defendant became impossible of performance as of December 31, 1988. As they performed no duties thereafter for which they have not already been paid there is no basis upon which they can claim either under the contract that was terminated at the end of 1988 or for unjust enrichment, in respect of any period after 1988. To the extent that their claim is based on the deprivation of a grant of office, the office was always implicitly terminable by statute, having been created by a sovereign Parliament. The Interpretation Act[16] subsection 42(1) provides as follows:

42. (1) Every Act shall be so construed as to reserve to Parliament the power of repealing or amending it, and of revoking, restricting or modifying any power, privilege or advantage thereby vested in or granted to any person. [Emphasis added.]

This, as recently pointed out by the Supreme Court of Canada,[17] is really only a statutory statement of the principle of parliamentary sovereignty which would, even in the absence of that statement, produce the same result. But since the plaintiffs’ case is put on the basis of statutory interpretation, I am obliged to interpret the statute under which the plaintiffs were originally appointed as granting “advantages” to the plaintiffs which were always subject to cancellation by a subsequent statute abolishing their offices. Their offices having been abolished, no benefits or emoluments can be claimed in respect thereof after this abolition.

While I of course accept the general principle relied upon in the Manitoba Fisheries case, I do not think it applies to the present situation. The Manitoba Fisheries case involved property—namely, the goodwill pertaining to the plaintiff’s business—which existed independently of statute and which in the normal course of events would have continued indefinitely. The Act of Parliament deprived that property of any value. I doubt however that it is now appropriate to speak of the “property” in an office. It is true that in medieval common law many offices, including those of certain court officials, were considered to be property. They were sold or granted by the sovereign or other feudal lord and could be resold or transmitted by inheritance. This concept depended on feudal institutions and probably reflected the paucity of doctrines of contract or administrative law. The evils of this system of sale of offices included a rigidity caused by those with vested rights opposing the introduction of any administrative reform that might interfere with their monopoly of fee-earning services to the public. It was not until the 19th century that the sale of most offices was abolished.[18] There is nothing in the modern history of Canada to support the concept of public offices as property and, notwithstanding the treatment of the plaintiffs in the present case, there appears to be no legal justification for doing so now. It is true that in the passage from the Beauregard case quoted above[19] Thurlow C.J. said [at page 1024] that the grant of an office entitled the appointee to the accompanying salary

… in much the same way as a grant of money or land vests title to the money or the land in the grantee. [Emphasis added.]

But in saying this he appears to be stating that an office is not property although much the same. Further, this passage must be seen as obiter dicta as he had already decided the matter on other grounds and at this point was considering the basis upon which the Trial Judge had disposed of the case.

An appointment by order in council to a position created by statute carries with it the implied condition that the appointment and the salary it carries will continue only as long as the statute so authorizes. Thus when Parliament abolishes a statutory office there can, I think, be no reasonable interpretation of what Parliament has intended other than the repeal of the authorization of compensation for anyone filling that position. Whatever the general rules of statutory interpretation may be with respect to normal property (and it must be remembered always that rules of interpretation are designed to clarify ambiguities in what Parliament has said and not to override Parliament’s intention), when Parliament abolishes an office it must be taken to have sanctioned the normal consequences of such abolition, namely to terminate any salary connected with that office. Nor can I ascertain any contrary intention of Parliament from the fact that, as noted above, subclause 38(7) of the original Bill C-55, expressly denying compensation, was later dropped from the bill. In the circumstances several explanations might be given for deleting that subclause, the most probable being that the government dropped it in order to get the bill through the Senate believing that in any case subclause 38(7) only stated the legal position which would in any event apply. Nor did those opposed to subclause 38(7) hold out for an express provision for compensation which, given the state of the jurisprudence, would have been the only way to be sure compensation was paid. Therefore I cannot infer from the legislative history any common intention of the majority in both Houses of Parliament that voted for the bill as finally worded, and must rely on the ordinary meaning of the words they finally adopted.

I must therefore conclude, reluctantly, that the plaintiffs are not entitled to payment of the salaries and benefits which they would have received had their offices not been abolished. Nor can I see any other legal basis for them obtaining compensation. Because I think it may be relevant to the question of costs, however, I am obliged to say that I think these plaintiffs have been unfairly treated. No one disputes the power of Parliament to abolish boards and tribunals or to reorganize them. No one questions the good faith here of the Minister or advisers in offering new positions to members of the old Board for terms and at locations which seemed to be the most appropriate for meeting the needs of the new Board. It is clear that this was the focus of Mr. Fairweather’s recommendations and he quite properly did not concern himself with the separate question of compensation for members of the old Board who were in the process of losing several years of paid work to which they quite reasonably felt entitled. However when the matter was turned over to the Privy Council Office for the formalities of appointment, that agency intermixed the two issues and made the offer of any new appointment conditional upon a settlement of any claim the plaintiffs might have against the Government or its representatives. This approach was not only unfair and coercive from the standpoint of the plaintiffs; it was also in my view an abuse of power, in effect amounting to the attempted sale of public offices. It is important to note the form of the release which the plaintiffs were asked to sign as a condition of receiving a further two-year appointment to the new Board.[20] This release states in part:

In consideration of my appointment by Order in Council as full time temporary member, Immigration and Refugee Board, for a period of two years during good behaviour, I,                                , hereby agree to release and forever discharge Her Majesty, her agents, representatives and employees from all actions, causes of action, claims or demands of whatever kind or nature that I or any of my representatives may have had, has or could have against Her Majesty, her agents, representatives and employees by reason or in respect of any matter whatsoever relating to the termination of my appointment as Member, Immigration Appeal Board upon the coming into force of Bill C-55.

In effect these plaintiffs were being asked to pay for their new order in council appointment by surrendering any claim they might have against the government or its officials. It is obvious both the plaintiffs and the Privy Council Office considered such a claim to have potential value: otherwise the latter would not have demanded and the former would not have refused, the execution of a release. Therefore the plaintiffs were being asked to pay something thought to be of value in order to get an appointment. I cannot think that this is a proper condition for the Governor in Council to impose in making appointments to quasi-judicial bodies: it is indeed surprising that the Governor in Council would be advised to proceed in this manner.

The net result has been that these plaintiffs who according to the evidence accepted in good faith appointments for fixed periods of time relying on Acts of Parliament, who planned their lives and in certain cases their retirements accordingly and who have performed their jobs diligently and competently, have been deprived of a livelihood to which they quite reasonably felt themselves to be entitled and without any compensation.[21]

David Anderson’s Travel and Living Expenses

I have concluded that Mr. Anderson is entitled to be paid reasonable travel and living expenses incurred by him during the period from his appointment to early 1986 when his home was in Victoria and he was travelling to Vancouver to carry out his work.

I have little doubt that in the common understanding of those who review and approve expense accounts Mr. Anderson should be treated as having his ordinary place of residence in the city where he was expected to work. But that is not what section 62 of the Immigration Act, 1976, on which he bases his claim, says. Unlike the Judges Act,[22] for example, which provides specifically or by implication for where the judge must be considered to be based for purposes of travelling expenses, section 62 simply uses the test of “ordinary place of residence”. As such, it is a simple factual test. In response to my request of counsel for the defendant, he could point to no provision in the statutes or regulations which specified where a member of the Immigration Appeal Board must reside. Nor am I convinced that one must draw the inference that a member was obliged to reside in the city where he was assigned to serve. It is quite conceivable with a board that had appointments for varying periods, and where members were expected to serve at times in various centres across the country, that there would be no rigid rule that every member must live in the city of his principal place of work. Counsel has therefore not demonstrated to me any basis in law to support the statement by the Chief of Financial Services in his memorandum of April 10, 1984, to Mr. Anderson[23] that “the Immigration Appeal Board expects all employees to present themselves at their work places on their own time and at their own expense”. It is perhaps not insignificant that at one point officers of the Board undertook to request the Privy Council Office to provide a legal opinion on the meaning of section 62, but later declined to do so.

Once Mr. Anderson moved to Vancouver, at the expense of the Board, he could not and does not claim for any such expenses while his home was in Vancouver. Nor do I think it a reasonable interpretation of the phrase “ordinary place of residence” that, having established it in Vancouver at the expense of the Board, a member could unilaterally establish another ordinary place of residence and then expect to be paid for commuting from it to work. In my view the phrase “ordinary place of residence” involves essentially a question of fact as to where one is found at the time of appointment. If one is induced to move to the city where the relevant board office is situated and is compensated therefore by the payment of relocation expenses, then that becomes his ordinary place of residence and he ceases to receive travel and living expenses because he has accepted relocation costs. It is then appropriate to regard his place of relocation at the expense of the board as his ordinary place of residence.

Disposition

For the above reasons the claims of the plaintiffs for loss of income and benefits in respect of their abolished offices must be dismissed.

Mr. Anderson will be awarded his reasonable travel and living expenses incurred by him while absent from Victoria during the period April 1, 1984 to February, 1986 up to the time of his relocation to Vancouver. From this amount should be deducted the commuting allowance actually received by him. As requested by counsel I will not formulate a judgment but hereby request counsel to seek to agree on the correct amount to be awarded to Mr. Anderson in this respect. If no agreement is possible counsel can readdress me on this matter and I can make a determination or if necessary order a reference.

With respect to costs, counsel requested a further opportunity to address the Court on this matter after reasons were issued.

If agreement can be reached on all these matters counsel can move for judgment pursuant to Rule 324 [Federal Court Rules, C.R.C., c. 663]. Otherwise if so requested the Court will arrange another hearing.

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