T-2448-76
Vernon A. Phillips (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Dubé J.—Ottawa, August 17 and
24, 1976.
Practice—Public Service—Application under Rule 419 to
strike out statement of claim as showing no reasonable cause
of action—Plaintiffs employment terminated for alleged
incompetence—All other avenues of redress available pur-
sued—Failure to appeal under s. 31(3) due to lack of legal
advice—Privilege created by statute must be enforced in way
that statute provides—Breach of natural justice alleged at
hearing—Statement of claim struck out with leave to apply to
file fresh statement of claim—Public Service Employment
Act, R.S.C. 1970, c. P-32, ss. 25 and 31—Federal Court Rule
419.
Union Bank of Canada v. Boulter Waugh Ltd. (1919) 58
S.C.R. 385 and R. v. County Court Judge of Essex and
Clarke (1887) 18 Q.B.D. 704, applied.
APPLICATION to strike out statement of claim.
COUNSEL:
W. R. Hunter for plaintiff.
P. B. Annis for defendant.
SOLICITORS:
Vice and Hunter, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
DUBS J.: This is an application on behalf of
defendant under Rule 419 to strike out plaintiff's
statement of claim on the ground that it discloses
no reasonable cause of action.
In his statement of claim the plaintiff states that
he was employed in the civil service of Canada
from 1953 to June 21, 1974, when his position
classified as CR-5 in the Department of Supply
and Services "was wrongfully terminated pursuant
to section 31 of the Public Service Employment
Act being R.S.C. 1970, chapter P-32 and amend
ments thereto, for alleged incompetence".
Plaintiff further states that he has fully exer
cised all other procedures available to him to
obtain redress "save and except for an appeal of
the deputy head's recommendation for release pur
suant to section 31(3) of the Public Service
Employment Act which has been denied to the
plaintiff because of the plaintiff's failure to com
mence such an appeal within the required time
prescribed by the Public Service Commission". He
claims that his failure was due to the fact that he
was "at that time without legal advice".
In his statement of claim, plaintiff further
alleges that he was "performing his job competent
ly", that his dismissal was "wrongful", that
defendant failed to give him sufficient notice. He
therefore claims $26,258.25 and other damages for
wrongful dismissal.
Defendant claims that plaintiffs only remedy
was the appeal procedure under section 31 of the
Act and that having failed to exercise his right of
appeal he has no further cause of action. The
relevant section reads as follows:
31. (1) Where an employee, in the opinion of the deputy
head, is incompetent in performing the duties of the position he
occupies or is incapable of performing those duties and should
(a) be appointed to a position at a lower maximum rate of
pay, or
(b) be released,
the deputy head may recommend to the Commission that the
employee be so appointed or released, as the case may be.
(2) The deputy head shall give notice in writing to an
employee of a recommendation that the employee be appointed
to a position at a lower maximum rate of pay or be released.
(3) Within such period after receiving the notice in writing
mentioned in subsection (2) as the Commission prescribes, the
employee may appeal against the recommendation of the
deputy head to a board established by the Commission to
conduct an inquiry at which the employee and the deputy head
concerned, or their representatives, are given an opportunity of
being heard, and upon being notified of the board's decision on
the inquiry the Commission shall,
(a) notify the deputy head concerned that his recommenda
tion will not be acted upon, or
(b) appoint the employee to a position at a lower maximum
rate of pay, or release the employee,
accordingly as the decision of the board requires.
(4) If no appeal is made against a recommendation of the
deputy head, the Commission may take such action with regard
to the recommendation as the Commission sees fit.
(5) The Commission may release an employee pursuant to a
recommendation under this section and the employee thereupon
ceases to be an employee.
The Court is naturally reluctant to strike out a
statement of claim and will only do so in plain and
obvious cases, where a statement of claim is pat
ently unsustainable and the action could not poss
ibly succeed. Justice, however, is not better served
when an impossible claim is allowed to proceed
down the path of expensive and futile litigation.
At common law, all public servants held their
appointments at the pleasure of the Crown, and
all, in general, were subject to dismissal at any
time without cause assigned and without any right
of action (Vide 7 Halsbury's Laws of England
(3rd ed.) 340, paragraph 732). So their right of
redress, if any, is conferred by statute and in
accordance with the provisions of that statute. A
privilege of any kind created by statute must be
enforced in the way that statute provides (Vide
Union Bank of Canada v. Boulter Waugh Ltd.
(1919) 58 S.C.R. 385).
Section 24 of the Public Service Employment
Act defines the tenure of office of an employee as
follows:
24. The tenure of office of an employee is during the pleas
ure of Her Majesty, subject to this and any other Act and the
regulations thereunder and, unless some other period of
employment is specified, for an indeterminate period.
When a statute prescribes a specific remedy, the
general rule is that no remedy can be taken but
that particular remedy prescribed by the statute.
As stated by Lord Esher M.R. in R. v. County
Court Judge of Essex and Clarke ((1887) 18
Q.B.D. 704 at p. 707) "The ordinary rule of
construction therefore applies to this case, that
where the legislature has passed a new statute
giving a new remedy, that remedy is the only one
which can be pursued."
The Public Service Employment Act does pro
vide a remedy for aggrieved public servants,
namely the right to appeal. If no appeal is made
against a recommendation of the deputy head,
subsection 31(4) provides that the Commission
may take such action as it sees fit, including the
release of the employee under subsection 31(5).
It seems therefore plain and obvious that the
plaintiff has no further right of action.
Not pleaded in the statement of claim but raised
by counsel for the plaintiff at the hearing was the
argument that there might have been a breach of
natural justice because plaintiff was not properly
informed of the reasons for his dismissal. As the
matter was not pleaded I am unable on the ma
terial before me to determine whether a cause of
action within the jurisdiction of the Trial Division
based on such an allegation could properly be
framed.
In view of this, while the statement of claim will
be struck out, the action will not be dismissed
immediately and plaintiff will have leave to apply
within thirty days to file a statement of claim
setting up such a cause of action.
ORDER
I hereby order that the statement of claim be
struck out with leave to plaintiff to apply within
thirty days to file a fresh statement of claim. Costs
to the defendant if she wishes to claim them.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.