T-3159-75
Albin Achorner (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Walsh J.—Montreal, January 31;
Ottawa, February 9, 1977.
Public Service — Practice Action for wrongful dismissal
— Motion to strike out statement of claim — Onus of proof
Dismissal pursuant to s. 27 of Public Service Employment
Act — Whether grievance procedure provided for by Public
Service Staff Relations Act could or should have been fol
lowed Public Service Employment Act, R.S.C. 1970, c.
P-32, ss. 24 and 27 — Public Service Staff Relations Act,
R.S.C. 1970, c. P-35, s. 90(1)(a)(i)— Federal Court Rule 419.
Plaintiff was dismissed from Post Office employment pursu
ant to section 27 of the Public Service Employment Act for
alleged abandonment of position. Plaintiff alleges that he failed
to return to work because he was awaiting a reply to a letter he
sent to his superiors expressing fear for his safety and asking to
be advised as to when he could resume his duties. Defendant,
on bringing a motion to strike out the statement of claim,
claims that she was entitled to dismiss the plaintiff by virtue of
section 24 of the Act and that in any event the plaintiff should
have availed himself of the grievance procedures provided for
by section 90(1)(a)(i) of the Public Service Staff Relations
Act.
Held, the motion is dismissed. In deciding whether or not a
statement of claim discloses a reasonable cause of action, it
must be assumed that the facts it alleges are true; any doubt as
to these facts should be resolved by the Trial Judge. The
defendant cannot invoke section 24 because it was not by virtue
of this section that the plaintiff's employment was terminated.
And there is some doubt as to whether the grievance procedure
provided for by the Public Service Staff Relations Act was
available to the plaintiff, since he was not being dismissed as a
disciplinary measure but because he had allegedly abandoned
his position, which he denies.
Wright v. Public Service Staff Relations Board [1973]
F.C. 765, applied. Hopson v. The Queen [1966] Ex.C.R.
608; Zamulinski v. The Queen [1956-60] Ex.C.R. 175 and
Peck v. The Queen [1964] Ex.C.R. 966, distinguished.
MOTION to strike out statement of claim.
COUNSEL:
Cyril E. Schwisberg, Q. C., for plaintiff.
R. Cousineau for defendant.
SOLICITORS:
Schwisberg, Golt & Benson, Montreal, for
plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is a motion made pursuant to
Rule 419 by defendant for an order striking out
plaintiff's pleadings on the ground that the said
pleadings do not disclose a reasonable cause of
action. Plaintiff filed an original statement of
claim on September 9, 1975, alleging that after
having been a regular employee of the Canada
Post Office since 1961 he was released from his
employment by letter dated August 15, 1972, writ
ten by H. Vallée, acting Director of the Montreal
Metropolitan District, pursuant to section 27 of
the Public Service Employment Act' because of
the alleged abandonment of his position. As a
result of failing to join the union and refusing to
participate in an illegal strike in 1965, he alleges
that he was attacked on June 4 or 5, 1966, by
about 200 men who beat him up breaking his nose
and his teeth so that he required hospital treat
ment. As a result of this he was transferred to the
Registration Unit at the Montreal Central Post
Office in July 1966 and worked there for five
years. In 1971 his hours were suddenly changed
and he was allegedly subjected to other harass-
ments and threats on the new night shift to which
he had been posted which came to a head on May
26, 1972, when he was ordered by Mr. R. Dage-
nais to close the mail for certain flights before the
time at which they were supposed to be closed—in
other words to deliberately slow down his work so
that it would be possible to accuse him of not
accomplishing it properly. He was subjected to
further threats when leaving work so in conse
quence did not report on May 27, 1972, but wrote
a letter explaining his fear for his safety and
asking his superintendent to advise him of the date
on which he could resume work. He wrote a
further letter on May 29, 1972, to Mr. L. Duro-
cher, the Director of the Montreal Metropolitan
District, enclosing a copy of the letter which he
had written to his superintendent, Mr. St. Cyr, but
received no acknowledgment to either letter, the
first communication being August 15, 1972, when
' R.S.C. 1970, c. P-32.
Mr. Vallée notified him of his release from
employment under section 27 of the Public Service
Employment Act which reads as follows:
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.
It is not necessary for the purpose of the present
motion to go in further detail into his very lengthy
statement of claim or his attempts to secure
redress by communication with members of Parlia
ment and the Postmaster General, nor his claim
for loss of all the salary which he could have
anticipated earning to pensionable age, and loss of
pension.
Defendant first made a motion for the determi
nation of a question of law seeking an answer to
the question of whether plaintiffs action was
barred by prescription. This motion was dismissed
in the Trial Division and the judgment was
appealed to the Court of Appeal 2 . After reviewing
the statement of claim Chief Justice Jackett con
cluded that two options were opened to defendant,
the first being to seek a determination as to wheth
er it disclosed any cause of action during the
course of which the question of prescription would
be raised, or second to allow the matter to proceed
to discovery to clarify the facts in which event the
statement of claim might be varied. He then stated
[at page 646]:
... the first thing that strikes me is that a reading of the
statement of claim (which the appellant has chosen as the
subject matter for the decision of the single question of law
proposed) leaves me in substantial doubt as to what the
respondent's cause of action, if any, is; and I am conscious of
the fact that, if the matter is otherwise left to run its course, a
cause of action may ultimately emerge that is not apparent
from a mere reading of the statement of claim and that may be
reflected in an amended statement of claim. This being so, it
does not seem ,to me that it is "expedient" to set down the
proposed question of law at this stage.
In due course plaintiff submitted an amended
declaration and statement of claim giving more
detail considering his alleged cause of action and
2 [1977] 1 F.C. 641.
the present motion is now made to strike it out in
its entirety.
In deciding such a motion the Court must pro
ceed on the basis that all the allegations in the
statement of claim must be presumed to be true
and then decide whether, conceding this, this gives
a cause of action. The jurisprudence is clear that if
there is any doubt the decision should be left to the
Trial Judge who should be given an opportunity to
hear the evidence. Applying this principle to the
facts of the present case it would appear that
plaintiff was very badly treated and in fact lost his
employment because he refused to go along with
the union and participate in an illegal strike and
the inability or unwillingness of his superiors to
guarantee his protection against the threats and
violence he had suffered and had good reason to
anticipate would continue without such protection.
As his counsel argued, he was released as a matter
of expedience and because of a desire of his supe
riors not to provoke the union in any way which
might cause further trouble in what was already a
highly inflammatory situation existing in the
Montreal Post Office; in other words, he was an
innocent party sacrificed in order to purchase
labour peace.
If this is the case, as plaintiff alleges, he might
well have been justified in contending that his
absence from duty for a period of one week or
more was as a result of reasons over which he had
no control and that his employers were not justi
fied in availing themselves of section 27 of the Act
to declare that he had abandoned the position he
occupied and therefore ceased to be an employee.
The question which causes most concern at this
stage of the proceedings however is not whether he
may have a valid action on the merits when all the
facts are made known, which certainly cannot be
determined without the action proceeding to trial,
but whether the present proceedings constitute an
appropriate method by virtue of which he is en
titled to seek redress.
Defendant refers to section 24 of the Act which
reads 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.
I do not believe that this section can properly be
invoked however since it was not by virtue of this
section of the Act that his employment was ter
minated. No Order in Council was passed provid
ing for his dismissal as in the case of Hopson v.
The Queen 3 .
The case of Zamulinski v. The Queen'', while
holding that no right of damages accrued to an
employee dismissed since he held his employment
only at the pleasure of the Crown, nevertheless
directed attention to a section of the Regulations
giving him a right to present his case to a senior
officer of the department nominated by a deputy
head and be heard before he is dismissed, and
since he had been deprived of this right he was
awarded nominal damages of $500.
A similar finding was made by my brother
Cattanach J. in the case of Peck v. The Queens
but in that case no damages were allowed because
the plaintiff had been given an adequate opportu
nity to present her side of the case prior to
dismissal.
In the case of Rao v. Secretary of State for
India 6 a somewhat similar section to section 24
provided that the employee held office during Her
Majesty's pleasure. The headnote of the report
states:
The terms of s. 96B assure that the tenure of office, though at
pleasure, will not be subject to capricious or arbitrary action,
but will be regulated by the rules, which are manifold in
number, most minute in particularity and all capable of change,
but there was no right in the appellant, enforceable by action,
to hold his office in accordance with those rules, and he could
therefore be dismissed notwithstanding the failure to observe
the procedure prescribed by them.
Sect. 96B and the rules make provision for the redress of
grievances by administrative process.
There seems to be some question in the present
case, however, as to whether in the circumstances
in which he was held to have abandoned his
employment by the application of section 27 of the
Act he could have secured any redress by adminis
trative process. Defendant states he should have
proceeded by way of the grievance procedure pro
vided in sections 90 and following of the Public
3 [1966] Ex.C.R. 608.
[1956-60] Ex.C.R. 175.
5 [1964] Ex.C.R. 966.
6 [1937] A.C. 248.
Service Staff Relations Act 7 . Section 90(1)(a)(i)
reads as follows:
90. (1) Where any employee feels himself to be aggrieved
(a) by the interpretation or application in respect of him of
(i) a provision of a statute, or of a regulation, by-law,
direction or other instrument made or issued by the
employer, dealing with terms and conditions of
employment
in respect of which no administrative procedure for redress is
provided in or under an Act of Parliament, he is entitled.
subject to subsection (2), to present the grievance at each of the
levels, up to and including the final level, in the grievance
process provided for by this Act.
Defendant contends that the application of section
27 implies the application to plaintiff of the provi
sions of section 90 of the Public Service Staff
Relations Act and that the plaintiff, if he was not
satisfied, should have presented a grievance rather
than communicating with various officials in the
Post Office Department including the Postmaster
General, with his member of Parliament, and with
others in his attempts to secure redress, and that
having failed to avail himself of this he is not
entitled to bring the present proceedings.
There would seem to be some doubt, however, as
to whether the grievance procedure was open to
plaintiff in the present circumstances. He was not
being dismissed for any disciplinary measure and
in fact quite to the contrary he wished to be able to
carry on his work in accordance with the regula
tions and to resist orders of his superiors to partici
pate in illegal slow-downs with a view to delaying
the delivery of the mails. He asked his supervisor
to provide protection for him and said he could not
resume his work until he had some such assurance.
Instead of this, section 27 was applied in his case
and he was held to have abandoned his employ
ment because, in the absence of such assurances,
he had not resumed his work. There was no ques
tion of his having been dismissed for disciplinary
reasons which. would clearly give rise to grievance
procedures. This question was gone into in some
detail by the Court of Appeal in the case of Wright
v. Public Service Staff Relations Board'. In that
case Chief Justice Jackett carefully analyzed the
provisions of the sections of the Public Service
' R.S.C. 1970, c. P-35.
e [1973] F.C. 765.
Staff Relations Act relating to grievances and of
the Public Service Employment Act. While in that
case he was dealing with the right to final adjudi
cation by an adjudicator and not with the right to
present a grievance, he listed the various sections
of the Public Service Employment Act by virtue of
which a person may become separated from
employment in the Public Service, including
among them of course section 27 which was
applied in the present case. At page 778 he states:
It is worthy of note that each of these ways of terminating
employment may give rise to possible disputes as to whether the
necessary things have in fact been done and may give rise to
possible disputes as to the effect of the law. It is only, however,
in the case of "disciplinary action resulting in discharge" that
the appropriate method of determining the dispute is reference
to adjudication.
While I am of the view that it might have been
more prudent for plaintiff to have sought redress
by grievance procedure, it is at least arguable that
it might have been held that such procedure was
not available to him in connection with a decision
made under section 27 of the Act that he had
abandoned his employment, which contention he
strongly denies. I can find nothing in either Act
nor have I been referred to any jurisprudence with
the possible exception of the Rao case (supra) to
the effect that recourse to the Courts is denied to a
party who has alternative procedure by way of
grievance open to him. Under the circumstances
there is at least sufficient indication in plaintiff's
amended statement of claim that he may well have
a valid and enforceable cause of action against
defendant to justify allowing the action to proceed
on the merits so that defendant will have an
opportunity to plead thereto and the Trial Judge
can decide after full presentation of the facts by
both parties.
The motion to strike the statement of claim is
therefore dismissed with costs.
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.