T-3768-72
John A. Emms (Plaintiff)
v.
The Queen represented by the Deputy Minister of
Indian Affairs and Northern Development and the
Public Service Commission (Defendants)
Trial Division, Cattanach J.—Ottawa, December
8 and 9, 1975; January 7, 1976.
Crown—Public Service—Plaintiff rejected from position
after extension of probation—Whether probationary
employee—Whether termination a nullity—Whether claim
barred by statute or laches—Public Service Employment Act,
R.S.C. 1970, c. P-32, ss. 27, 28, 31 and Regulations s. 30—
Financial Administration Act, R.S.C. 1970, c. F-10, s.
7(1)(f)—Public Service Terms and Conditions of Employment
Regulations, s. 106—Public Service Staff Relations Act,
R.S.C. 1970, c. P-35, s. 90—The Public Officers' Protection
Act, R.S.S. 1965, c. 21, s. 2.
Plaintiff, a field officer with the Department of Indian
Affairs and Northern Development, was verbally informed that
his one-year probation was to be extended a further six months,
during which time he was rejected for cause. He seeks a
declaration that his employer lacked authority to do so under
section 28(3) of the Public Service Employment Act, a declara
tion that the termination is null and void and that he continues
to be employed, and damages.
Held, granting the relief claimed, section 30(3) of the Public
Service Employment Regulations provides that where proba
tion is extended "the deputy head shall forthwith advise the
employee ... in writing." The provision is mandatory, and,
while plaintiff may have known that his probation had been
extended, the Regulations contemplate clear and unequivocal
notice in writing specifically directed to plaintiff. This was not
done, and the purported extension is a nullity. Anticipating
such conclusion, defendants claim that plaintiff's action is
barred by The Public Officers' Protection Act (Sask.) which
sets out a twelve month limitation period. However, a limitation
Act does not bar the obligation, only the right to enforce it, and
must be expressly pleaded. Defendants have not done so. A
special ground of defence must be specifically pleaded under
Rule 409. This defence is unavailable. Nor can the equitable
defence of laches be applied, for the Crown has not been
adversely affected by plaintiff's delay in asserting his proper
remedy or been induced by plaintiff's apparent acceptance of
his dismissal to irretrievably alter its position to its detriment.
There can be no abandonment of plaintiff's right without his
full knowledge of that right, and his ignorance, in that he was
not initially aware that the extension might not be effective, is a
satisfactory explanation of his delay in enforcing his right. His
delay has not changed the position of the parties.
Lindsay Petroleum Company v. Hurd (1873-74) 5
L.R.P.C. 221; Erlanger v. New Sombrero Phosphate
Company (1877-78) App. Cas. 1218 and Rees v. De
Bernardy [ 1896] 2 Ch. D. 437, applied.
ACTION.
COUNSEL:
M. W. Wright, Q.C., and J. L. Shields for
plaintiff.
I. G. Whitehall for defendants.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: In the prayer for relief in his
statement of claim, the plaintiff who had been
employed as a field officer in the Department of
Indian Affairs and Northern Development (here-
inafter referred to as "the Department") but who
was "rejected on probation" seeks, inter alia:
(1) a declaration that his employer had no au
thority to terminate his employment under sec
tion 28(3) of the Public Service Employment
Act, R.S.C. 1970, c. P-32;
(2) a declaration that the termination of his
employment by his employer is null and void
and of no effect and that he still continues to be
an employee of the employer; and
(3) damages.
The plaintiff was the successful applicant for a
position in the Department. He began his employ
ment on April 1, 1970, on probation for a period of
12 months. The initial probationary period ended
on March 31, 1971.
During this probationary period it is evident
that the responsible officers of the Department and
who were the plaintiff's superiors became dissatis
fied with the plaintiff's performance of his duties.
The manner of the plaintiff's discharge of his
duties was the subject of comment in an evaluation
report dated March 25, 1971, which the plaintiff
read and signed and in antecedent and subsequent
correspondence as well as interviews with the
plaintiff with the result that the plaintiff was
verbally informed by C. E. McKee, the District
Supervisor, that the probationary period would be
extended for a further 6 months. I compute that
the extended probationary period would run from
April 1, 1971, to September 30, 1971.
By letter dated August 18, 1971, signed by C. E.
McKee, District Supervisor, the plaintiff was
advised, in part, as follows:
It is, therefore, my responsibility to inform you that you are
rejected for further service in the Department of Indian Affairs
and Northern Development effective 24 September 1971.
In short, the plaintiff was discharged effective
September 24, 1971.
At this point it is appropriate to set forth the
relevant statutory provisions and pertinent regula
tions thereunder. Section 28 of the Public Service
Employment Act reads:
28. (1) An employee shall be considered to be on probation
from the date of his appointment until the end of such period as
the Commission may establish for any employee or class of
employees.
(2) Where an appointment is made from within the Public
Service, the deputy head may, if he considers it appropriate in
any case, reduce or waive the probationary period.
(3) The deputy head may, at any time during the probation
ary period, give notice to the employee and to the Commission
that he intends to reject the employee for cause at the end of
such notice period as the Commission may establish for any
employee or class of employees and, unless the Commission
appoints the employee to another position in the Public Service
before the end of the notice period applicable in the case of the
employee, he ceases to be an employee at the end of that
period.
(4) Where a deputy head gives notice that he intends to
reject an employee for cause pursuant to subsection (3) he shall
furnish to the Commission his reasons therefor.
(5) Notwithstanding anything in this Act, a person who
ceases to be an employee pursuant to subsection (3)
(a) shall, if the appointment held by him was made from
within the Public Service, and
(b) may, in any other case,
be placed by the Commission on such eligible list, and in such
place thereon as in the opinion of the Commission is commen
surate with his qualifications.
Subsections (1) and (2) of section 30 of the Public
Service Employment Regulations SOR/67-129
dated March 13, 1967, as amended, read:
30. (1) The probationary period referred to in subsection
(1) of section 28 of the Act for an employee who comes within
a class or group mentioned in Column I of Schedule A is the
period set out opposite that class or group in Column II of the
said Schedule.
(2) The deputy head may extend the probationary period of
an employee but the period of extension shall not exceed the
period for that employee determined pursuant to subsection
(1).
It was agreed by the parties that the plaintiff's
initial employment on probation was for a period
of 12 months, that is from April 1, 1970, to March
31, 1971. It was also agreed by the parties that the
authority vested in the deputy head under section
28 of the Public Service Employment Act and the
regulations thereunder has been properly delegat
ed to C. E. McKee, the district supervisor at
Prince Albert, Saskatchewan.
It is common ground that if th plaintiff was not
a probationary employee when he received the
notice dated August 18, 1971, dismissing him as of
September 24, 1971, then the termination of his
employment was a nullity.
An employee to whom the deputy head gives
notice that he intends to reject' the employee for
cause at the end of the probationary period in
accordance with section 28(3) quoted above has no
recourse. It is possible that the employee might be
appointed to another position in the Public Service
or be placed on an eligible list, but that did not
happen in the case of the plaintiff herein. On the
other hand, an employee who has survived the
probationary period and has become, what for
want of a better word I shall call a regular
employee, has remedies available to him in the
event of his dismissal.
Pursuant to section 7(1) (f) of the Financial
Administration Act, R.S.C. 1970, c. F-10, the
Treasury Board may establish standards of disci
pline in the Public Service and prescribe the finan
cial and other penalties, including suspension and
discharge, that may be applied for breaches of
discipline or misconduct. This has been done by
the Public Service Terms and Conditions of
Employment Regulations, passed under the au
thority conferred by the Financial Administration
Act. By section 106 of these Regulations the au
thority vested in the Treasury Board in those
respects is delegated to the deputy head.
This may be categorized as discharge for mis
conduct. In this event the employee who feels
himself aggrieved has the right to present a griev
ance under section 90 of the Public Service Staff
Relations Act, R.S.C. 1970, c. P-35, and where
the grievance lodged has been considered on all
levels and has not been dealt with to his satisfac
tion the employee may then refer the grievance to
adjudication. Under section 31 of the Public Ser
vice Employment Act the deputy head may set in
motion the procedure for the release of an
employee for incompetence or incapacity. Subsec
tion (3) of section 31 provides for an appeal by the
employee against the recommendation of the
deputy head to a board established by the Public
Service Commission which board shall conduct an
inquiry.
As I have indicated those avenues of redress are
not available to an employee on probation who has
been rejected for cause by the deputy head during
the probationary period in accordance with section
28(3) of the Public Service Employment Act.
The crucial question first arising is whether the
plaintiff was a probationary employee. If he was
then his rejection for cause during the probation
ary period is effective. If he was not a probation
ary employee at the time he was so rejected, it is,
as I have previously indicated, common ground
that termination of his employment by this means
was a nullity. Accordingly it becomes critical to
determine if the plaintiff's first probationary
period of employment running from April 1, 1970,
to March 31, 1971, was extended for a further 6
months.
There is no question that the plaintiff was not
performing his duties to the satisfaction of his
superiors. Neither is there any doubt that the
plaintiff's superiors sought to resolve the matter by
extending the plaintiff's probationary employment
for a further period of 6 months. This is evident
from an evaluation report dated March 25, 1971,
(Exhibit P-3), which fell just within the initial
12-month probationary period. The plaintiff read
and acknowledged reading this report by append
ing his signature on March 26, 1971. This evalua
tion report prepared and signed by C. E. McKee
recommended that the plaintiff "... be placed on a
further six-month's probation to attempt to resolve
his communication problem. It is also recommend-
ed that Mr. Emms (the plaintiff) be considered for
transfer to another area and be given the opportu
nity to work in the development field".
It is significant that this evaluation report is
prepared for internal departmental administration,
and is indicated to be an annual review rather than
a probation review, that the extension of the pro
bationary period is a recommendation by C. E.
McKee directed to Mr. McKee's superior who
noted the recommendations by Mr. McKee.
The plaintiff had a meeting with Mr. McKee
and Mr. Clark, Mr. McKee's superior, in Regina
on March 26, 1971, at which the difficulties were
discussed. The plaintiff testified that he left the
meeting under the impression that the difficulties
were resolved. The manner in which those difficul
ties were resolved was not disclosed with certainty
or exactitude but the impression sought to be
conveyed by the plaintiff in his testimony was to
the effect that the extended probationary period of
6 months within which he was to satisfy his supe
riors of his ability to satisfactorily discharge his
duties was waived. I have grave doubt if that
impression was justified.
By letter dated July 8, 1971, (Exhibit P-4),
which is beyond the initial probationary period but
within the further six-month period, C. E. McKee
again referred to the manner in which the plaintiff
performed his duties and as were discussed at the
meeting between them on March 26, 1971, and
concluded by stating:
In the circumstance, I intend to recommend to the Regional
Director your rejection on probation; however, before doing so,
I invite your explanation for difficulties which have developed
and your inability to perform satisfactorily.
The plaintiff replied by letter dated July 19,
1971, (Exhibit P-5), and explained the difficulties
which he had encountered. He concluded his reply
by requesting to be advised of the steps to be taken
to review, through the staff union, his federal
government service that is covered by pension. The
tenor of that letter, after pointing out that he had
exceptional ability to communicate with Indian
people, is a tacit acceptance of his inevitable dis
missal and in this letter the plaintiff does not
dispute the statement in Mr. McKee's letter of
July 8, that he was "on probation" at that time.
In paragraph 3 of the statement of claim it is
alleged:
3. On or about the 31st day of March, 1971, the Plaintiff was
advised verbally by his employer that the probationary period
referred to in paragraph 2 was extended for a period of six
months.
(The probationary period referred to in paragraph
2 is that from April 1, 1970, until March 31,
1971.) This allegation in the statement of claim
the plaintiff denied in his testimony.
Because of the view I have reached it is not
necessary for me to come to a conclusion that the
plaintiff was advised orally that his probation had
been extended for a period of six months from
March 31, 1971, until September 30, 1971, but if
it were incumbent upon me to do so I would find
that the plaintiff knew or ought to have known by
the oral communications to him and written state
ments that was the fact.
Section 28(3) of the Public Service Employ
ment Act provides that "the deputy head may, at
any time during the probationary period, give
notice to the employee and to the Commission that
he intends to reject the employee for cause...".
The use of the word "may" in this context imports
a discretion in the deputy head. He may reject an
employee on probation or he may not.
Section 15 of the Interpretation Act, R.S.C.
1970, c. I-23, provides that where an enactment
confers power to make regulations, expressions
used in the regulations shall have the same respec
tive meaning as in the enactment conferring the
power. For all purposes of interpretation, obliga
tions or otherwise, regulations, if validly made
under a statute, are to be treated exactly as if they
were in the statute itself. (See Institute of Patent
Agents v. Lockwood [1894] A.C. 347).
It is not disputed that the Public Service
Employment Regulations are validly made pursu
ant to the authority conferred by the Public Ser
vice Employment Act.
In section 30 of those Regulations, quoted at the
outset, subsection (2) provides that the deputy
head "may" extend the probationary period of an
employee but subject to the limitation, in this
instance, that the period of extension "shall" not
exceed 12 months. Here again, as in section 28(3)
of the Act itself, the use of the word "may"
imports a discretion but the use of the word
"shall" in section 30(2) of the Regulations is
imperative in that it declares that the limitation
imposed shall not be exceeded.
In subsection (3) of section 30 of the Regula
tions, which is the crucial subsection in the present
matter, it is provided that "where the probationary
period of an employee is extended, the deputy head
shall forthwith advise the employee and the Com
mission thereof in writing". Here the regulation
declares what "shall" be done. The deputy head
must "forthwith" advise the employee of the
extension of the probationary period in writing.
This language is clearly imperative and well
should it be since the employee's means of liveli
hood and future employment may well be at stake.
He is subject to dismissal for cause during the
probationary period and such dismissal is final
without recourse to the remedies available to a
regular employee who is dismissed for misconduct
or for incompetence or incapacity, the latter of
which appears to have been the cause for the
plaintiff's dismissal.
On its very face the language of subsection (3)
of section 30 of the Regulations is obligatory and
in construing a statute or a regulation thereunder
provisions which are obligatory on their face
cannot, without strong reasons being given, be
construed as only directory. In my opinion in
construing this particular regulation no such
strong reasons exist. Accordingly, I construe sub
section (3) of section 30 of the Public Service
Employment Regulations as being mandatory.
That being so any action thereunder which does
not strictly comply with the express provisions of
the regulation results in the purported action being
a nullity.
The position of the Crown, succinctly put, is
that when the plaintiff was dismissed by the notice
dated August 18, 1971, he was a probationary
employee and so was properly dismissed.
There does not seem to me to have been any
doubt that the plaintiff's superiors were not satis
fied with the plaintiff's performance of his duties
during his initial 12-month probationary period
and that his rejection on probation was seriously
considered during that period. Naturally the plain-
tiff both disputed and sought to explain the reser
vations entertained by his superiors as to his
capacity and competence. It is equally clear that
the solution to the difficulties encountered was to
extend the plaintiff's probationary period for a
further six months.
The recommendation to that effect was con
tained in the evaluation report concerning the
plaintiff dated March 25, 1971. That report was
signed by the plaintiff on March 26, 1971, and was
the subject matter of discussion between the plain
tiff and his superiors. The plaintiff's version of that
discussion appears to have been that the difficul
ties were resolved, but unfortunately they were
not, and there does not appear to have been a
sound foundation for the plaintiff's assumption to
the contrary. There is no doubt in my mind that
the plaintiff knew full well on March 26, 1971, it
was intended that his probationary period was to
be extended for an additional period of six months.
However, there is equally no doubt in my mind
that the plaintiff was not so advised in writing
forthwith by the deputy head or a responsible
officer of the Department to whom that authority
was delegated by the deputy head that his proba
tionary period had been extended by six months.
The evaluation report dated March 25, 1971, is
not directed to the plaintiff even though he saw
and signed it. The subsequent correspondence
from Mr. McKee to the plaintiff obliquely refers
to the plaintiff being on probation. The plaintiff in
the statement of claim alleges that he was verbally
so advised but in giving testimony the plaintiff
denied that he was verbally advised.
As I have said, I am convinced that the plaintiff
knew he was on probation for an extended period
of 6 months from March 31, 1971, but that does
not alter the fact that he was not so advised in
accordance with subsection (3) of section 30 of the
Regulations which for the reasons I have expressed
above I have concluded to be obligatory and if not
followed result in a nullity. What is contemplated
by the Regulations is a clear and unequivocal
notice in writing specifically directed to the plain
tiff stating that his probationary period has been
extended for the appropriate time also to be stated.
It is obligatory on the deputy head or his desig
nated representative to do this and if that officer is
not aware of his responsibility in this respect it is
incumbent upon him to find out before embarking
upon an action which may have detrimental conse
quences to the employee.
This was not done. Accordingly, in my opinion,
the purported extension of the plaintiffs proba
tionary period was a nullity.
In anticipation of the conclusion I have reached
the position of the Crown was that the action by
the plaintiff is barred by The Public Officers'
Protection Act, R.S.S. 1965, c. 21.
The plaintiffs employment was purported to be
terminated effective September 24, 1971. The
statement of claim, the style of cause of which was
subsequently amended twice, is dated December
18, 1972, and was filed in the Registry office of
this Court on December 19, 1972. The time which
elapsed from the cause of action arising on Sep-
tember 24, 1971, to the filing of the statement of
claim is 14 months and 25 days. During the argu
ment, counsel for the parties admitted that the
contract of employment was entered into in Sas-
katchewan and the breach, if any, also occurred in
that Province.
Section 2 of The Public Officers' Protection Act
provides that no action shall lie or be instituted
against any person for an act done in pursuance or
execution or intended execution of a statute, or in
respect of an alleged neglect or default in the
execution of a statute unless the action is com
menced within twelve months next after the act,
neglect or default complained of. This action was
commenced after the expiry of the limitation so
prescribed assuming that the limitation is appli
cable to the present action by virtue of section 38
of the Federal Court Act, which question it is not
incumbent upon me to decide for the reasons I
shall now give.
A statute of limitation does not bar the obliga
tion or debt but it does bar the right of action to
enforce that obligation or debt. It is a procedural
point of law and must be raised by an express
pleading. The statement of defence does not
expressly plead the Saskatchewan statute nor ma
terial facts to invoke the limitation imposed there
by. If the defendant has a special ground of
defence, that defence must be specifically pleaded
in accordance with Rule 409. That Rule enforces
the cardinal rule of pleading that every defence
must plead specifically the matter which makes
the claim not maintainable or which might take
the opposite party by surprise.
As I have said the statement of defence does not
so plead nor was there any motion to amend the
statement of defence to do so. Accordingly that
defence raised in argument by counsel for the
defendant is not available to him. However, the
period of limitation so prescribed may well be an
indication of the lapse of time within which the
plaintiff should have taken effective steps to
enforce what rights he might have had without
giving rise to the equitable defence of laches as a
bar to his action.
Counsel for Her Majesty did raise the doctrine
of laches as a defence in paragraph 7 of the
statement of defence and has relied on that doc
trine and more specifically relies on the grievance
presentation made by the plaintiff dated Septem-
ber 2, 1971 (Exhibit P-8) in which he protested the
evaluation report dated August 18, 1971, as "an
unfair, incomplete and basically untrue docu
ment". The corrective action the plaintiff sought
thereby reads as follows:
I request an impartial investigation of the matter with a view
to having the situation corrected and the true reasons for my
dismissal stated. I also request a review of my previous valid
pension service time with Indian Affairs and an explanation of
how so many supervisors granted salary increments and promo
tions if the above mentioned report is true. I do not contest
dismissal. I do contest the evaluation.
The plaintiff's grievance was rejected but he did
accept his dismissal although he did not accept the
evaluation of his ability and he also expressed
specific concern about his eligibility for pension
based on his past service in the Department and
his actual war service.
The most lucid exposition of the maxim Vigi-
lantibus non dormientibus jura subveniunt, which
very freely translated means that a court of equity
has always refused its aid to stale demands where
a party has slept on his right and acquiesced for a
great length of time, is that expressed by Lord
Selborne L.C. in Lindsay Petroleum Company v.
Hurd' and quoted by Lord Blackburn in Erlanger
v. New Sombrero Phosphate Company ((1877-78)
3 App. Cas. 1218) at page 1279 where it is said:
The doctrine of laches in Courts of Equity is not an arbitrary or
a technical doctrine. Where it would be practically unjust to
give a remedy, either because the party has, by his conduct
done that which might fairly be regarded as equivalent to a
waiver of it, or where, by his conduct and neglect he has,
though perhaps not waiving that remedy, yet put the other
party in a situation in which it would not be reasonable to place
him if the remedy were afterwards to be asserted, in either of
these cases lapse of time and delay are most material. But in
every case if an argument against relief, which otherwise would
be just, is founded upon mere delay, that delay of course not
amounting to a bar by any statute of limitations, the validity of
that defence must be tried upon principles substantially equita
ble. Two circumstances always important in such cases are the
length of the delay and the nature of the acts done during the
interval, which might affect either party and cause a balance of
justice or injustice in taking the one course or the other, so far
as relates to the remedy.
When the plaintiff read the evaluation report
dated August 18, 1971, containing the recommen
dation by C. E. McKee that the plaintiff be
"rejected on probation effective September 24,
1971" he wrote thereon "I reject and contest this
decision on the grounds stated" and signed his
name. The "grounds stated" are not identified and
I can only conjecture that they may be those stated
in the plaintiff's letter dated July 19, 1971,
(Exhibit P-5), written in response to C. E.
McKee's letter dated July 8, 1971, (Exhibit P-4),
in which McKee stated that he intended to recom
mend to the Regional Director the plaintiff's
"rejection on probation". The plaintiff's letter in
reply thereto did not dispute the allegation that he
was on probation at that time but he did dispute
the allegation that he was unable to communicate
with the Indian people. He stated in that letter
that "there is a wealth of historical documentation
that proves I have exceptional ability to communi
cate with the Indian people". He is protesting his
' (1873-74) 5 L.R.P.C. 221 at page 239.
impending dismissal by disputing the ground on
which it was based.
What the correspondence indicated as inevitable
happened when Mr. McKee wrote and despatched
his letter dated August 18, 1971, to the plaintiff
informing him that he was "rejected for further
service in the Department effective 24 September
1971".
It was upon receipt of this letter that the plain
tiff spoke to minor officials of the association of
employees of which he was a member, obtained a
grievance presentation form which he completed
and despatched (Exhibit P-8) on his own initiative
but no doubt after consultation with the union
officials who signed the form indicating their
approval of its presentation. The material content
of this grievance presentation has been reproduced
above and the crucial language is "I do not contest
dismissal".
At the same time the plaintiff also obtained
legal advice. The solicitors consulted by the plain
tiff wrote a letter dated August 24, 1971, to the
Assistant Deputy Minister of the Department,
which letter is Exhibit F to a notice to admit facts
(Exhibit D-1). The purport of that letter is that
the plaintiff intends to follow the grievance proce
dure recommended by the union of employees to
which he belonged particularly with respect to the
evaluation report. The letter stated that the plain
tiff was "not terribly disturbed about the fact of
his dismissal" but that he strongly felt that he had
been "wronged" by the evaluation report to the
extent that he reluctantly contemplated legal pro
ceedings. The letter concluded by a request that
the evaluation report be corrected in accordance
with the plaintiff's wishes.
It is obvious from the grievance presentation
and the tenor of the solicitor's letter that the
plaintiff was not aware that the extension of his
probationary period from March 31, 1971, to Sep-
tember 30, 1971, might not have been effective
and accordingly he was no longer "on probation".
Therefore he did not present these facts to the
solicitor he consulted and the solicitors did not
direct their attention to that question.
It was not until the grievance reached the higher
echelons of the union and the union in turn con
sulted their counsel that this particular question
was raised and considered. In the meantime the
plaintiff blindly accepted the fact of his dismissal
and that blind acceptance deprived him of ade
quate advice. However, when the plaintiff became
aware of his possible rights, his attitude took an
about face. He launched this action.
While it is possible that the plaintiff's statement
that he does not grieve his dismissal, expressed as
it was in unequivocal terms, can be construed as a
waiver the question is whether that waiver places
Her Majesty in a position in which it is not
reasonable to place Her if the remedy is not
asserted. I do not think that Her Majesty has been
adversely affected by the plaintiff's delay in assert
ing his proper remedy. Even assuming that the
plaintiff was replaced by another employee at one
stage, it had been recommended by Mr. McKee in
his evaluation report dated March 25, 1971, that
the plaintiff be transferred to another area (by
which I assume was meant another geographical
area) and that he be given the opportunity to work
in the development field. From this I conclude that
there were other fields of work where it was con
sidered that the plaintiff's abilities could be better
utilized.
In my view Her Majesty has not been induced
by the plaintiff's apparent acceptance of his dis
missal to irretrievably alter Her position, predicat
ed upon that fact, to Her detriment.
Furthermore, the letter dated June 5, 1972,
from the Public Service Commission addressed to
the president of the association of workers of
which the plaintiff was a member the Commission
advised that it had asked the Department to rein
state the plaintiff in his position. This the Depart
ment did not do but there was no evidence as to
why it did not do so. Still further, the plaintiff at
all times made it abundantly clear that he most
vehemently protested the evaluation of his abilities
and accordingly the Department was alerted to the
fact that it must retain all evidence to rebut that
claim by the plaintiff.
While these are all elements indicative of the
fact that Her Majesty has not been prejudiced by
the plaintiff's delay, the clinching element is that
there can be no abandonment of the plaintiff's
right without the plaintiff's full knowledge of that
right and the plaintiff's ignorance of that right is a
satisfactory explanation of his delay in taking
action to enforce that right.
In Rees v. De Bernardy 2 , Romer J. said at page
445:
Now, I take it to be a rule of the Court in cases of this kind,
that where a person has once a right to rescind a contract he
does not lose that right merely by acting upon it or by delay in
impeaching it, so long as he remains in ignorance of his right
and the position of parties remains substantially the same.
In my opinion, the plaintiff was in ignorance of
his right and the position of the parties has not
been changed by the plaintiff's delay.
For the reasons expressed the defence predicat
ed upon the plaintiff's laches must fail. That being
so it follows that the plaintiff is entitled to the
declaration sought in paragraphs (a) and (b) of his
prayer for relief and accordingly there shall be
declarations:
(1) that Her Majesty has no authority to termi
nate the employment of the plaintiff under the
authority of section 28(3) of the Public Service
Employment Act; and
(2) that the termination of the plaintiff's
employment by Her Majesty is null and void
and of no effect whatsoever and that the plain
tiff still continues to be an employee of Her
Majesty.
Section 27 of the Public Service Employment
Act expressly deals with the situation where an
employee ceases to be an employee by reason of
the abandonment of his position. The section
reads:
27. An employee who is absent from duty for a period of one
week or more, otherwise than for reasons over which, in the
opinion of the deputy head, the employee has no control or
otherwise than as authorized or provided for by or under the
authority of an Act of Parliament, may by an appropriate
instrument in writing to the Commission be declared by the
deputy head to have abandoned the position he occupied, and
thereupon the employee ceases to be an employee.
There was no evidence before me that "by an
appropriate instrument in writing to the Commis
sion" the deputy head declared the plaintiff "to
have abandoned the position he occupied" and it is
for that reason I have included in the second
declaration that "the plaintiff still continues to be
2 [1896] 2 Ch. D. 437.
an employee of the employer" as was requested in
the prayer for relief.
Having granted the declaration requested in the
prayer for relief, I turn to paragraph (c) of the
prayer for relief requesting:
(c) judgment in favour of the Plaintiff of money sufficient to
compensate the Plaintiff for the wages or salary or any other
benefits or privileges which he would have received if the
employer had not unlawfully terminated the Plaintiffs
employment;
The relief sought in paragraph (c) is mutually
inconsistent with the relief sought in paragraphs
(a) and (b) which I have granted. Since I have
found that the plaintiff's employment was not
terminated, it follows that the plaintiff is entitled
to continue in his employment and to receive his
salary therefor. But to be entitled to receive his
salary the plaintiff must perform the duties of his
office or indicate his willingness to do so.
Immediately upon his abortive dismissal on Sep-
tember 24, 1971, the plaintiff forthwith sought and
obtained employment under contract with the
Department of Co-Operation and Co-Operative
Development of the Governmént of Saskatchewan.
Exhibit P-12 indicates that he began that engage
ment on October 1, 1971, that is a period of seven
days before he accepted other employment (for
which the plaintiff is to be commended), but by
the acceptance of which he precluded himself from
performing the duties of the office from which he
was not effectively dismissed. I note that in Exhib
it P-13 that the plaintiff computed his salary to be
$35.68 on a daily basis, which for 7 days totals
$219.76.
The plaintiff had been employed with the
Department of Indian Affairs previously from
1949 to 1962, roughly a period of 14 years. At the
conclusion of that employment the plaintiff was
refunded the contributions that he had made
toward superannuation or pension. In addition, he
saw active service with the Royal Canadian Navy
Volunteer Reserve from 1940 to 1945, a period of
five years which, I understand, is considered as
pensionable service. That makes a period of
approximately 19 years for which the plaintiff may
have been eligible to count toward pensionable
service provided, of course, that he made up the
contributions thereto.
Since I have found that his employment was not
terminated on September 24, 1971, it follows that
the plaintiff is not precluded from pursuing his
rights to a pension if he otherwise meets the
qualifications therefor. The question of the plain
tiff's eligibility for pension was not argued before
me and therefore I do not decide that question.
Accordingly, in addition to the declaratory relief
granted, the plaintiff shall have judgment in the
amount of $219.76 and the taxable costs of this
action.
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.