A-60-76
John A. Emms (Appellant) (Plaintiff)
v.
The Queen represented by the Deputy Minister of
Indian Affairs and Northern Development and the
Public Service Commission (Respondents)
(Defendants)
Court of Appeal, Urie and Ryan JJ. and Kerr
D.J.—Ottawa, May 31 and July 15, 1977.
Public Service — Labour Relations — Extension of proba
tionary period — Appellant (employee) fully aware of exten
sion — No written notice given of extension as required by s.
30(3) of Public Service Employment Regulations — Employee
dismissed at expiry of extension — Validity of extension
Whether or not direction in s. 30(3) mandatory or merely
directory — Public Service Employment Act, R.S.C. 1970, c.
P-32, s. 28 — Public Service Employment Regulations, SORI
67-129, ss. 30, 31.
Appellant was dismissed after an extension of his probation
ary period expired. Although he knew of the extension, he was
not advised of it in writing as required by subsection 30(3) of
the Public Service Employment Regulations. At trial the ter
mination was declared null and void, but appellant was dissatis
fied with the compensation awarded for salary and benefits he
would have received had his employment not been terminated,
and appealed. Respondent cross-appealed the - decision. The
issue is whether or not performance of the duty imposed by
subsection 30(3) is an essential element in the exercise of the
power to extend, such that failure to perform would render the
decision a nullity.
Held, the appeal is dismissed and the cross-appeal allowed.
Subsection 30(3) imposes a duty to advise the employee in
writing forthwith after the probation period is extended. It is
not necessary to define "forthwith" precisely. It is enough that
the word contemplates a possible interval between the extension
and the giving of advice of it to the employee. Communication
in the manner specified is not an essential part or condition of
the extension itself. The subsection is not a condition subse
quent to the extension in the sense that failure to perform it
would operate to nullify the extension when the permitted
interval expires.
Brayhead (Ascot) Ltd. v. Berkshire County Council
[1964] 2 Q.B. 303, agreed with.
APPEAL.
COUNSEL:
M. W. Wright, Q.C., and J. L. Shields for
appellant.
I. G. Whitehall and Robert Côté for
respondents.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for appellant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
RYAN J.: Mr. Emms, the appellant, sued in the
Trial Division' for a declaration that his employer
lacked authority to terminate his employment
under subsection 28(3) of the Public Service
Employment Act 2 and for a declaration that the
purported termination was null and void. He also
claimed a sum of money sufficient to compensate
him for the salary and other benefits he would
have received had his employment not been ter
minated. Mr. Emms was successful in obtaining
the declarations he sought and was awarded the
sum of $219.76 and his costs of the action.
Mr. Emms was, however, dissatisfied with the
sum of money he was awarded, and brought 'this
appeal in respect of the amount. There was a
cross-appeal, the cross-appeal before us, seeking
reversal of the judgment of the Trial Division and
dismissal of Mr. Emms's action.
Mr. Emms was employed on April 1, 1970, as a
Field Officer, WP-2, in the Department of Indian
Affairs and Northern Development. He was sta
tioned at Stony Rapids, Saskatchewan. Mr. Emms
was considered to be on probation for a period of
one year. Section 28 of the Public Service
Employment Act deals with probation. It provides:
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
I [1977] 1 F.C. 101.
2 R.S.C. 1970, c. P-32.
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.
Sections 30 and 31 of the Public Service Employ
ment Regulations 3 also relate to probation. They
provide:
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).
(3) Where the probationary period of an employee is extend
ed, the deputy head shall forthwith advise the employee and the
Commission thereof in writing.
31. (1) The notice period referred to in subsection (3) of
section 28 of the Act applicable in the case of an employee who
comes within a class or group mentioned in Column I of
Schedule A is the period set out in respect of that employee
opposite that class or group mentioned in Column III of the
Schedule, calculated from the day on which the deputy head
gives the notice to the employee.
On February 26, 1971, Mr. C. E. McKee, the
departmental District Supervisor, wrote to Mr.
Emms suggesting that he might arrange to visit
the Prince Albert Office during the third week of
March so that they might review the evaluation of
Mr. Emms's performance, the evaluation Mr.
McKee was required to submit before the end of
the probationary period. Mr. McKee referred in
his letter to problems that Mr. Emms had encoun
tered in carrying out his duties as Field Officer.
An employee evaluation report, dated March
26, 1971, was signed both by Mr. Emms and Mr.
McKee. It contained the notation: "I have read &
3 SOR/67-129.
discussed this report." In the report there was this
recommendation:
—Recommend that Mr. Emms be placed on a further six
months probation to attempt to resolve his communication
problem. It is also recommended that Mr. Emms be considered
for transfer to another area and given opportunity to work in
the development field.
The learned Trial Judge referred in his reasons
to a meeting that Mr. Emms had with Mr. McKee
and Mr. Clark, Mr. McKee's superior, in Regina,
on March 26, 1971. The Trial Judge noted that
Mr. Emms had not been performing his duties to
the satisfaction of his superiors. At the meeting in
Regina, the difficulties were discussed. I now
quote from the Trial Judge's reasons [at pages
106-107]:
The plaintiff testified that he left the meeting under the
impression that the difficulties were resolved. The manner in
which those difficulties were resolved was not disclosed with
certainty or exactitude but the impression sought to be con
veyed 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 superiors 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 dismissal 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 orall)
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 tc
him and written statements that was the fact.
I would also quote this passage [at pages 108-109]:
There does not seem to me to have been any doubt that the
plaintiff s superiors were not satisfied with the plaintiff's
performance of his duties during his initial 12-month proba
tionary period and that his rejection on probation was seriously
considered during that period. Naturally the plaintiff both
disputed and sought to explain the reservations 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 plaintiffs probationary period for a further six
months.
The recommendation to that effect was contained 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
plaintiff and his superiors. The plaintiffs version of that discus
sion appears to have been that the difficulties were resolved,
but unfortunately they were not, and there does not appear to
have been a sound foundation for the plaintiffs 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
probationary period had been extended by six months.
The learned Trial Judge also said [at page 109]:
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....
An employee evaluation report, the purpose of
which was indicated as being a probation review,
was prepared under date of August 18, 1971, and
signed on August 19, 1971. Under the heading
"Recommendations" was the entry: "Rejected on
probation effective September 24, 1971." Mr.
Emms signed the report, but indicated in writing,
on the report, that he contested the decision "..
on the grounds stated."
By letter dated August 18, 1971, Mr. McKee
informed Mr. Emms that he was rejected for
further service in the Department of Indian
Affairs and Northern Development effective Sep-
tember 24, 1971.
Mr. Emms then submitted a grievance in which
he protested "... the Employee Evaluation Report
dated August 19, 1971 as an unfair, incomplete
and basically untrue document." He stated:
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 the
dismissal. I do contest the evaluation.
His reference to previous pension service and
promotions appears to relate to a period he had
served in the Public Service some time before his
appointment in April 1970.
His grievance did not succeed.
Shortly after his rejection, which was effective
September 24, 1971, Mr. Emms obtained employ
ment with a department of the Saskatchewan gov
ernment until November 15, 1971. He obtained
employment with another Saskatchewan govern
ment department on a temporary basis from
November 15, 1971 to January 31, 1973. He
secured further employment in the Saskatchewan
government service in February 1973, first as a
temporary, and then as a permanent employee.
It is important to have in mind the issue on
which the case went to trial. I therefore quote from
the amended statement of claim and from the
statement of defence. Paragraphs 2 to 6 of the
statement of claim read:
2. The Plaintiff was employed as a field officer with the
Department of Indian Affairs and Northern Development for
the district of Prince Albert in the Province of Saskatchewan.
The Plaintiff was considered to be on probation from the 1st
day of April, 1970 until the 31st day of March, 1971.
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.
4. The Plaintiff did not receive a notice in writing of the
extension of his probationary period as required by Section
30(3) of the Public Service Employment Regulations.
5. By letter dated the 18th day of August, 1971 addressed to
the Plaintiff, the Plaintiff's employer purported to terminate
the services of the Plaintiff as a probationary employee to be
effective on the 24th day of September, 1971.
6. The Plaintiff says that as a result of the employer's failure to
comply with the provisions of Section 30(3) of the Public
Service Employment Regulations, the employer has no au
thority to terminate his employment as if he were a probation
ary employee.
Paragraphs 2 to 5 of the statement of defence
read:
The Deputy Attorney General of Canada on behalf of the
defendants, in answer to the Statement of Claim herein, says as
follows:
2. With reference to paragraphs 3 and 4 of the Statement of
Claim, he does not admit the allegations contained therein and
says that the plaintiff received notice in writing of the extension
of the probationary period referred to in paragraph 2 of the
Statement of Claim.
3. With reference to paragraph 5 of the Statement of Claim he
admits that by letter dated August 18, 1971 from C. E. McKee,
District Supervisor, Prince Albert District, Department of
Indian Affairs and Northern Development, to the plaintiff, he
was advised that he was rejected for further service in the
Department of Indian Affairs and Northern Development
effective September 24, 1971.
4. He does not admit the allegations contained in paragraph 6
of the Statement of Claim and says that the employer complied
with the provisions of section 30(3) of the Public Service
Employment Regulations, and had the authority to terminate
the plaintiff's employment as a probationary employee.
5. He therefore says that the plaintiff is not entitled to the
relief sought in subparagraphs (a), (b) and (c) of paragraph 6
of the Statement of Claim.
The appellant, the plaintiff below, thus did not
place in issue that a decision to extend the proba
tionary period had been taken. The issue of fact
was whether the plaintiff had received a notice in
writing of the extension of his probationary period
as required by subsection 30(3) of the Public
Service Employment Regulations. The issue of
law was whether, if the facts were found in the
plaintiff's favour, the probationary period had
been extended. If it had been, his rejection was
well founded in law. If it had not, his rejection, it
was submitted, was a nullity.
The learned Trial Judge [at page 108] construed
.. subsection (3) of section 30 of the Public
Service Employment Regulations as being manda
tory. 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."
He stated [at page 1091:
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....
He held that Mr. Emms had not been given the
required notice in writing. He said [at page 109]:
The evaluation report dated March 25, 1971, is not directed
to the plaintiff even though he saw and signed it. The subse
quent correspondence from Mr. McKee to the plaintiff oblique
ly refers to the plaintiff being on probation....
He also said of the evaluation report [at page
1061:
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 exten
sion of the probationary period is a recommendation by C. E.
McKee directed to Mr. McKee's superior who noted the recom
mendations by Mr. McKee.
The critical question before us was stated in
argument as being whether subsection 30(3) of the
Regulations is directory or imperative. This is, I
agree, the question, if the significance of the dis
tinction is what I understand it to be 4 . Subsection
30(3) is, of course, mandatory in the sense that it
imposes an obligation on the deputy head of the
department, an obligation which, if not observed,
may have legal consequences. But that, for present
purposes, is not in my view the significance of the
distinction between "imperative" and "directory".
The question is whether performance of the duty
imposed by the subsection is an essential element
in the exercise of the power to extend. Would
failure to perform the duty render the extension a
nullity? If so, the subsection is imperative in the
sense in which the word has been used for the
purpose of the distinction between "imperative"
and "directory".
That a section in a statute or regulation may be
mandatory, but not such as to render a decision to
which it is related a nullity if a duty imposed by it
is not performed, appears in a passage from the
judgment of Mr. Justice Winn in Brayhead
(Ascot) Ltd. v. Berkshire County Councils at
pages 313 and 314. Mr. Justice Winn was speak
ing with reference to an article in a Town and
Country Planning General Development Order.
He said:
4 See Montreal Street Railway Company v. Normandin
[1917] A.C. 170.
5 [1964] 2 Q.B. 303; see also Howard v. Secretary of State
for the Environment [1975] Q.B. 235.
As a matter of construction it seems clear that article 5(9)(a)
requires (1) that the notice of decision be in writing; (2) the
reasons be stated in writing; (3) that the notice be accompanied
by a notification in the prescribed form; these requirements can
be satisfied by a single document or by three physically sepa
rate documents.
Should requirement (1) not be complied with, disputes might
well arise as to the calculation of the time limit for appeal to
the Minister fixed by section 16(1) of the Act; should require
ment (3) not be satisfied an applicant might be left in igno
rance of his rights. Each of those requirements is therefore
essential to the statutory purposes. The interposition of require
ment (2) militates strongly against any view that it can be
regarded as merely directory; all three requirements appear to
be mandatory. It does not follow necessarily that non-compli
ance with any one of them will render the notice null in law,
still less that the decision of which notice purports to be given is
itself of no legal effect. The court is not concerned in the
instant case with any non-compliance with requirement (1) or
requirement (3): the effect of non-compliance with requirement
(2) must be decided.
No doubt such a non-compliance may be and often will be
inconvenient for an applicant; he may find it necessary to give
notice of appeal to the Minister before he knows the strength or
weakness of the case which he will have to meet. However, he
could undoubtedly demand, as of right, a statement of reasons
and by threat or effect of an order of mandamus secure them,
and it would be strange if the Minister did not adjourn his
appeal until the reasons had been delivered and considered. In
the sense that there is a duty to state the reason in writing
requirement (2) is undoubtedly mandatory. Comparison may
be made of the provisions of section 12 of the Tribunal and
Enquiries Act, 1958, requiring that reasons, if requested, be
stated, in general, for a decision: a non-compliance with those
provisions would certainly found a mandamus.
It is another matter whether the notice of condition in the
present case, or such a tribunal decision is rendered null by a
failure to state reasons in writing: notwithstanding the obiter
dicta of Salmon J. this extreme result is not required for the
effective achievement of the purposes of the statute nor intend
ed, as a matter of construction, by Parliament.
The sequence and the wording of subsections (2)
and (3) of section 30 of the Regulations are sig
nificant. Subsection (2) vests in the deputy head
power to extend the probationary period. That
there was a decision to extend is not in issue in this
case. And I would also refer once again to the
Trial Judge's statement that he was convinced Mr.
Emms knew he was on probation for an extended
period of six months. This statement was made
after the Trial Judge had said that he had no
doubt Mr. Emms knew full well on March 26,
1971, it was intended that his probationary period
was to be extended; and also after he had stated
that, if it were incumbent on him so to find, he
would find that Mr. Emms knew or ought to have
known his probation had been extended for a
period of six months from March 31, 1971. At the
very least then, Mr. Emms knew of the intention to
extend the probationary period and ought to have
known that it had been extended.
As I read subsection (3), it imposes a duty to
advise the employee in writing forthwith after the
probationary period is extended. It is not necessary
to define "forthwith" precisely. It is enough that
the word contemplates a possible interval between
the extension and the giving of advice of it to the
employee. Communication in the manner specified
is not an essential part or condition of the exten
sion itself. Extension precedes the duty to advise.
I have also considered whether the duty to give
written advice forthwith is a condition subsequent
to the extension in the sense that failure to per
form it would operate to nullify the extension when
the permitted interval expires. I do not construe
the subsection as intending to attach so drastic a
consequence to a failure to comply with the man
date of the provision. It is, it seems to me, of some
value to note that an extension of a probationary
period may well be to the mutual advantage of the
employer and the employee. Such an extension
may afford the employer additional time in which
to assess an employee whose performance has not
been altogether satisfactory, and the employee a
further opportunity to prove himself rather than be
rejected. It would be as well not to encumber the
power to extend with the perils of literal compli
ance, and I do not find an intent so to encumber it.
It is, of course, desirable that an employee
should know as soon as possible that his probation
has been extended and that he has not become a
permanent employee. He might, for example, in
the circumstances wish to make other plans for his
future. He is not, however, entirely without protec
tion. The duty imposed on the deputy head to give
advice forthwith in writing is not an empty one,
even if it is not a condition precedent or subse
quent to the extension. The deputy head is under a
legal obligation which he would certainly be
unwise to take lightly. And, although it is not
necessary in this case to decide the point, it may be
that an employee, damaged by breach of the duty,
would have a remedy for his consequent loss.
My conclusion is that the probationary period
was extended and that Mr. Emms was rejected
within the extended period. I would allow the
cross-appeal. I would reverse the judgment of the
Trial Division and substitute judgment dismissing
the action.
As a consequence of this disposition of the cross-
appeal, I would dismiss the appeal.
The respondents are entitled to costs here and
below, if demanded.
* * *
URIE J.: I agree.
* * *
KERR D.J.: I agree.
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.