T-361-81
Raymond Armand Perras (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Cattanach J.—Ottawa, February
22 and March 11, 1982.
Public Service — Postal worker convicted of criminal
offences while on sick leave — Sentenced to incarceration —
Released from employment as incapable of performing duties
— Public Service Commission Appeal Board holding release
unreasonable — Position subsequently declared abandoned for
absence not authorized by statute — Issues being whether
employee absent for reasons over which he had no control or
under authority of an Act of Parliament — Whether general
duty of fairness owed — If so, was duty discharged —
Discussion of the four conditions set out in s. 27, Public
Service Employment Act which justify deputy head in declar
ing position abandoned — Criminal Code authorized impris
onment, not employee's absence from work — Statutes to be
construed so as to avoid absurdity — Meaning of words
"incompetent" and "incapable" — Conduct of deputy head in
proceeding under s. 27 of the Act after avenue of s. 31 blocked
by adverse Board decision not constituting breach of principle
of administrative fairness — Employee denied declaration that
employment relationship not severed or that employment
unlawfully terminated — Public Service Employment Act,
R.S.C. 1970, c. P-32, ss. 27, 31, 32(3).
Action for a declaration that the plaintiffs employment
relationship was not severed and that the plaintiff continued to
be an employee of the defendant; for a declaration that the
defendant acted unlawfully in terminating the plaintiffs posi
tion and for damages. The plaintiff was convicted of criminal
offences and sentenced to 15 months in prison while he was
employed by the Post Office. The plaintiff was subsequently
released from his employment pursuant to section 31 of the
Public Service Employment Act on the ground that he was
incapable of performing his duties. The Public Service Com
mission Appeal Board held that the defendant's decision to
recommend the plaintiffs release from employment was unrea
sonable and the plaintiffs appeal was allowed. Subsequently,
without applying for judicial review of the Board's decision
pursuant to section 28 of the Federal Court Act, the deputy
head declared, pursuant to section 27 of the Public Service
Employment Act, that the plaintiff had abandoned his position.
The plaintiff contends that the deputy head was wrong in
concluding that the reasons for the plaintiffs absence were
within his control. The defendant submitted that the plaintiffs
incarceration, which was the reason for the plaintiffs absence
from work, was the direct consequence of his own wilful and
voluntary acts by which he committed the offences of which he
was convicted. The plaintiff also submits that the deputy head
acted unfairly by not applying to the Federal Court to review
and set aside the decision of the Appeal Board, and by exercis
ing his discretion under section 27 instead. The issues are
whether the requirements set forth in section 27 as conditions
precedent to invoking section 27 are present and whether the
general duty of administrative fairness has been complied with.
Held, the action is dismissed. Section 27 provides that a
public servant loses his position when the conditions specified
therein are present. These conditions are fourfold. First the
employee has been absent from work for a period of one week
or more. This condition existed. Second is that the deputy head
is of the opinion that the reasons for the employee's absence
were under the employee's control. The third condition is that
the employee's absence was not authorized or provided for by
or under the authority of an Act of Parliament. The fourth
condition is that the deputy head may send to the Commission
an instrument in writing stating that the plaintiff has aban
doned the position he occupied. This was done. The second and
third conditions are alternative. If the employee's absence is not
authorized or provided for by or under an Act of Parliament,
then no exemption from an absence from duty is available to
the plaintiff, and it is not necessary to determine whether the
opinion of the deputy head was unsupported by evidence or
whether he erred in reaching the conclusion he did by applying
the wrong legal test. The Criminal Code, under the provisions
of which the plaintiff was imprisoned, does not authorize nor
purport to authorize the absence of the plaintiff from his
employment. The plaintiff falls precisely within the four cor
ners of section 27. The deputy head acted in precise conformity
with the three conditions precedent. Section 27 expresses the
procedural requirements that have been complied with from
which it would follow that so too has been procedural fairness.
The deputy head did not breach the principle of administrative
fairness. The requisite conditions precedent to the operation of
section 27 were present. That being so the deputy head exer
cised the power conferred upon him by section 27 in strict
accordance with the provisions of that section. Therefore it
cannot be said that the administrative authority conferred upon
the deputy head was improperly exercised by him or that he
exercised that authority unreasonably.
Morin v. The Queen [1981] 1 F.C. 3, applied. Emms v.
The Queen [1979] 2 S.C.R. 1148, varying [1977] 1 F.C.
101, applied. Bates v. Lord Hailsham of St. Marylebone
[1972] 1 W.L.R. 1373, agreed with. Grey v. Pearson
[1857] 6 H.L. Cas. 61, agreed with. Cinnamond v. British
Airports Authority [1980] 2 All E.R. 368, agreed with.
Martineau v. Matsqui Institution Disciplinary Board (No.
2) [1980] 1 S.C.R. 602, referred to. Nicholson v. Haldi-
mand-Norfolk Regional Board of Commissioners of
Police [1979] 1 S.C.R. 311, referred to. Inuit Tapirisat of
Canada v. Léger [1979] 1 F.C. 710, referred to. Francis v.
Municipal Councillors of Kuala Lumpur [1962] 3 All
E.R. 633, referred to.
ACTION.
COUNSEL:
John B. West for plaintiff.
E. A. Bowie, Q.C. and D. J. Rennie for
defendant.
SOLICITORS:
Perley-Robertson, Panet, Hill & McDougall,
Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: Prior to trial counsel for the
parties agreed upon a statement of facts and issues
dated December 10, 1981. It is expedient to
reproduce that agreement:
AGREED STATEMENT OF FACTS
For the purpose of facilitating the disposition of this action
the parties have agreed on the following facts. It is agreed that
neither party is precluded by this Agreement from adducing
evidence not inconsistent therewith at the trial of this action.
1. FACTS
1. The Plaintiff was employed as a mail handler in the Post
Office Department of the Government of Canada from Novem-
ber 25th, 1971 to June 9th, 1975 where he worked for various
temporary periods as a mail handler at the Ottawa Post Office.
On June 9th, 1975, he was appointed to a position in the Post
Office as a mail handler and as a regular employee pursuant to
the provisions of the Public Service Employment Act, R.S.C.
1970, Chapter P-32, s. 8.
2. On February 28th, 1980, while in the employment of the
Defendant, the Plaintiff took a period of sick leave without pay
from his position at the Post Office. On March 21, 1980, while
the Plaintiff was on sick leave as aforesaid, he was convicted of
two criminal offences contrary to the Criminal Code of Canada
and sentenced to a 15-month period of incarceration and one
year of probation in respect of each offence, the two sentences
to be concurrent. The convictions were not appealed, and the
Plaintiff began to serve his sentence on March 21, 1980.
3. On March 21, 1980, the Plaintiff's wife requested 15
months' leave of absence without pay, on behalf of the Plaintiff,
but did not disclose the reason for the request. The request was
refused. The Plaintiff did not subsequently attend at his place
of employment.
4. By a letter dated April 3rd, 1980, the Plaintiff was advised
by an officer of the Defendant that pursuant to Section 31 of
the Public Service Employment Act, he was being recommend
ed for release from his employment with the Defendant on the
ground that he was incapable of performing his duties.
5. Pursuant to Section 31 of the Public Service Employment
Act, the Plaintiff appealed the decision of the Defendant to the
Public Service Commission Appeal Board and by a decision
dated May 16th, 1980, it was held that the Defendant's deci
sion to recommend the Plaintiff's release from employment
with the Defendant was unreasonable and the Plaintiffs appeal
was allowed.
Appendix "A", Decision of
Public Service Appeals and
Investigations Branch
6. On August 27th, 1980, the Deputy Head, by his duly
authorized delegatee, was of the opinion that the Plaintiff had
been absent from duty continuously between March 21st and
August 27th, 1980, otherwise than for reasons over which he
had no control, and being of the opinion that his absence was
not authorized or provided for by or under the authority of an
act of Parliament, he by an appropriate instrument in writing
to the Public Service Commission (dated September 8, 1980
and attached as Appendix B) declared the Plaintiff to have
abandoned the position he occupied. The Plaintiff was so
advised on August 27th, 1980 (attached as Appendix C).
7. The Plaintiff at no time advised the Defendant of his
intention to abandon his employment with the Defendant and
at all material times to this action the Defendant knew that it
was the Plaintiffs intention to return to employment with the
Defendant upon his release from incarceration.
II. ISSUES
8. As at March 21st, 1980, the date on which the Plaintiff was
deemed to have abandoned his position with the Post Office
Department, was the Plaintiff absent from employment for
reasons over which he had no control by virtue of his convic
tions and subsequent incarceration under The Criminal Code of
Canada?
9. As at March 21st, 1980, the date on which the Plaintiffs
employment with the Defendant was terminated, was the Plain
tiff absent from duty under the authority of an Act of Parlia
ment, namely, The Criminal Code of Canada, within the
meaning of that expression as it is used in Section 27 of the
Public Service Employment Act which would render the Plain
tiffs absence from employment an authorized one?
10. Before terminating the Plaintiffs position did the Defend
ant have an obligation to afford the Plaintiff a hearing and did
the Defendant owe the Plaintiff a duty of fairness?
11. If the Defendant owed the Plaintiff a hearing and a duty of
fairness were those duties met in the circumstances of this
case?
12. Is the Plaintiff entitled to a declaration that his employ
ment relationship with the Defendant was not severed at any
time and the other relief as set out in the Statement of Claim?
13. Is the Defendant entitled to a declaration that the employ
ment of the Plaintiff was lawfully terminated pursuant to
Section 27 of the Public Service Employment Act as set out in
the Defendant's Counterclaim?
14. In view of the Public Service Commission Appeal Board
decision and in light of the circumstances in which the Plaintiff
found himself, did the Defendant exercise the discretion avail
able to it under Section 27 of the Public Service Employment
Act in an improper, arbitrary or unreasonable manner?
The decision of the Public Service Commission
Appeal Board mentioned in paragraph 5 of the
statement of facts is included as Appendix A.
This decision was not the subject-matter of a
reference to the Appeal Division of this Court
under section 28 of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10.
Why this was not done was not known to coun
sel for Her Majesty and accordingly he could not,
in response to my enquiry, make that reason
known to me. The matter did not become known to
the officers of the Department of Justice until well
after the time to so apply had long since expired
from which the inference might well be drawn that
the advice of the Department of Justice was not
sought before the officials of Canada Post (one of
the few instances of such a name being given to a
Government department, as it then was, by stat
ute) embarked upon the course of action which
they did and with the consequences which follow
when laymen see fit to act on their own initiative
without first seeking competent legal advice.
This failure, as it is logical to assume existed,
does have one practical advantage, unintended and
not likely foreseen by its perpetrators, which is
that the sole issue in this action, expressed in
broad terms, is whether the release of the plaintiff
pursuant to section 27 of the Public Service
Employment Act, R.S.C. 1970, c. P-32, from the
position to which he had been appointed in the
Public Service was lawful.
This is the issue expressed with greater par
ticularity and detail in paragraphs 8 and 9 of the
agreed statement of facts under the heading,
ISSUES.
Paragraphs 10 and 11 of the agreed statement
pose the questions as to whether there was an
obligation upon the defendant to afford the plain
tiff a hearing under section 27 of the Act, and if
so, was that obligation met.
Counsel for the plaintiff conceded that a hearing
was not required by the statute and that issue was
abandoned.
But two further questions were posed in para
graphs 8 and 9 which were not abandoned and
remain extant. Those questions are whether the
defendant owed the plaintiff the duty of fairness
and if so was that duty of fairness discharged.
In Bates v. Lord Hailsham of St. Marylebone
[1972] 1 W.L.R. 1373, Megarry J. set forth the
applicable principles when he said at page 1378:
... that in the sphere of the so-called quasi-judicial the rules of
natural justice run, and that in the administrative or executive
field there is a general duty of fairness.
This statement by Megarry J. has found wide
acceptance and is cited with approval by the
Supreme Court of Canada in Martineau v. Mat-
squi Institution Disciplinary Board (No. 2)
[1980] 1 S.C.R. 602, Nicholson v. Haldimand-
Norfolk Regional Board of Commissioners of
Police [1979] 1 S.C.R. 311 and by the Appeal
Division of this Court in Inuit Tapirisat of
Canada v. Léger [1979] 1 F.C. 710.
Here there is no dispute that the action under
section 27 is administrative to which the general
duty of fairness attaches.
As previously stated the issue to be resolved is
whether the release of the plaintiff under section
27 of the Act was lawful.
That involves the determination of whether all
the requirements set forth in section 27 as condi
tion precedent to the invocation of the section are
present and superimposed thereon is whether the
general duty of fairness in this administrative field
has been complied with.
The plaintiff, in paragraph 11 of his statement
of claim, seeks the following relief:
11. The Plaintiff claims as follows:
a) A declaration that the Plaintiff's employment relationship
with the Defendant was not severed at any time and that the
Plaintiff continued to be at all relevant times an employee of
the Defendant;
b) A Declaration that the Defendant acted unlawfully in
terminating the Plaintiff's position pursuant to Section 27 of
The Public Service Employment Act;
c) Judgment in favour of the Plaintiff of money sufficient to
compensate the Plaintiff for any wages, salary or other
employment benefits or privileges to which the Plaintiff
would have been entitled as of March 21, 1980 if the
Defendant had not unlawfully purported to terminate the
Plaintiff's position as set out herein;
d) The Plaintiff's costs of the within action.
Paragraph 11a) of the statement of claim is
reiterated in paragraph 12 of the agreed statement
of facts under the heading ISSUES.
In Emms v. The Queen [1977] 1 F.C. 101 a
declaration was granted including the following
language [at page 1151:
... the termination of the plaintiff's employment by Her
Majesty is null and void and of no effect whatsoever and that
the plaintiff still continues to be an employee of Her Majesty.
If a declaration in such terms is granted then a
claim for damages is inconsistent therewith.
On appeal to the Supreme Court of Canada
([1979] 2 S.C.R. 1148) the judgment of the Trial
Judge was confirmed but the declaration given was
varied by the deletion of the words, "that the
plaintiff still continues to be an employee of Her
Majesty" the proper remedy being in damages.
Pigeon J. quoted with approval [at pages 1164-
1165] the statement in Francis v. Municipal
Councillors of Kuala Lumpur [1962] 3 All E.R.
633 to the effect that where there has been a
purported termination of a contract of service a
declaration to the effect that the contract of ser
vice still subsists will rarely be made unless special
circumstances exist which will require making
such a declaration and its making will normally be
in the discretion of the court.
In my view there are no special circumstances
present in this case which warrant the exercise of
the discretion to make the declaration requested in
paragraph 11a) of the statement of claim and
accordingly no such declaration will be granted.
Wholly different considerations apply to para
graphs 11b) and c) of the statement of claim. In
my view it would have been more appropriate
pleading if paragraphs 11b) and c) had been
expressed as in the alternative to paragraph 11a).
I do not think that there can be any doubt that
there was a de facto dismissal of the plaintiff by
Her Majesty.
Paragraph 11b) seeks a declaration that Her
Majesty acted unlawfully in terminating the plain
tiff's position pursuant to section 27 of the statute.
If the declaration by the deputy head under that
section that the plaintiff had abandoned the posi
tion he occupied should be found to have been
unlawfully made then there would be no impedi
ment to making such a declaration.
If such declaration is made that would be tan
tamount, in my view, to a finding that the plaintiff
had been wrongfully dismissed from which it
would follow that his remedy lies in damages
which are being sought in paragraph 11c) of the
statement of claim which is the logical culmination
following upon paragraph 11b).
Thus, as previously stated, this action would be
resolved on the determination of the question
whether or not the declaration by the deputy head
under section 27 that he had abandoned his posi
tion with the consequence that the plaintiff ceased
to be an employee was lawful.
Section 27 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.
The section provides that a public servant loses
his position when the conditions specified therein
are present.
These conditions are fourfold.
First the employee has been absent from work
for a period of one week or more. This condition
existed.
Second is that the deputy head is of the opinion
that the reasons for the employee's absence were
under the employee's control.
That the deputy head held that opinion is not
disputed. What is contended on behalf of the
plaintiff is that the deputy head, in forming the
opinion that the reasons for the plaintiff's absence
were within his control, was wrong in doing so.
In many instances administrative tribunals have
been given legislative power to determine the
limits of their own jurisdiction, that is to say, in a
matter collateral to be proven. The usual language
employed in the statute is to the effect where the
competent authority, "is satisfied", "is of the opin
ion" or "whenever it shall appear" that such or
such is so. If the decision on the collateral issue is
not reviewable by the courts then that is tan
tamount to saying the question is not collateral but
is the essence of the issue. Put yet another way if
the jurisdiction is conferred upon a body in subjec
tive terms the courts are reluctant to review these
subjective findings.
However the Court will usually be willing to
interfere if the administrative tribunal:
(1) erred by applying a wrong legal test in
determining the question, i.e., whether a fisher
man is an employee or an independent contrac
tor, or whether clay is a mineral, or
(2) has arrived at a conclusion wholly unsup
ported by evidence.
What the deputy head, or his delegate, said in
part to the plaintiff in a letter dated August 27,
1980 (Appendix C to agreed statement) addressed
to him in prison, was: "You were incarcerated on
March 21, 1980. You have been deemed to have
abandoned the service as of that date .... This
action is being taken under the authority of Sec
tion 27 of the Public Service Employment Act."
It is open to the plaintiff to demonstrate that the
opinion formed by the deputy head was manifestly
against sound and fundamental principles.
That was the contention on behalf of the
plaintiff.
On the other hand it was contended on behalf of
Her Majesty that the plaintiff's incarceration
(which was the reason for the plaintiff's absence
from work) was the direct consequence of his own
wilful and voluntary acts by which he committed
the offences of which he was convicted and sen
tenced to prison for 15 months and one year's
probation. From that the contention is made that
the plaintiff by his own voluntary act set in motion
a chain of events which could foreseeably result in
his detection, arrest, charges being laid, conviction
and confinement in prison culminating in his ina
bility to attend at his place of work.
The third condition specified in section 27 is
that the employee's absence was not authorized or
provided for by or under the authority of an Act of
Parliament.
The fourth condition provided in section 27 is
that the deputy head may send to the Commission
an instrument in writing stating that the plaintiff
has abandoned the position he occupied.
This was done.
The first and fourth conditions have been com
plied with.
The second and third conditions are alternative
as is implicit from the pertinent language of sec
tion 27 reading:
... 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 ....
The word "or" immediately following the words
"the employee has no control" and immediately
preceding the words "otherwise than as authorized
or provided for", in this context, is disjunctive.
I know of no authority whereby "or" may be
turned into "and" unless the context dictates that
the meaning of "or" is "and", as in some instances
it does, but not in this instance.
Therefore there are two distinct, separate and
interchangeable conditions which provide for an
exemption to an employee from an absence from
duty when one or other is present.
I turn first to the third condition, that the
employee's absence is authorized or provided for
by or under an Act of Parliament. If this is not so
then no exemption is available to the plaintiff and
I am absolved from the necessity of considering
the second condition, that is, whether the opinion
of the deputy head was wholly unsupported by
evidence or the deputy head erred in reaching the
conclusion he did by applying the wrong legal test.
The plaintiff was convicted of an offence under
the Criminal Code of Canada, R.S.C. 1970, c.
C-34, which is an Act of Parliament. Having been
convicted he was sentenced and being sentenced he
must be confined in a penitentiary, prison or other
place of confinement.
It is as a consequence of the provisions of the
Code that the plaintiff was imprisoned and
because he was imprisoned he cannot be elsewhere,
to wit at his place of work, during the term of his
imprisonment.
It was by virtue of the implementation of the
Criminal Code that the plaintiff's imprisonment
was authorized as provided.
But that is a far different thing than saying that
the Criminal Code, which authorizes and provides
for the imprisonment in the circumstances in
which the plaintiff placed himself, "authorizes or
provides for" the plaintiff's absence from his
employment within the meaning of those words as
used, in a different tense, in section 27.
Nowhere in the Criminal Code are there words
which authorize or provide for the absence of a
person convicted of a criminal offence and sen
tenced to imprisonment from his usual work place
although it is the inevitable consequence of impris
onment that the prisoner cannot be at his work
place.
The operation of the provision of the Criminal
Code is the causa causans of the imprisonment of
the plaintiff. The plaintiff's absence from his duty
is but the causa sine qua non of the plaintiffs
conviction and imprisonment under the Criminal
Code.
Counsel for Her Majesty contended that to con
clude otherwise would lead to an absurdity.
This is a cardinal rule in the interpretation of a
statute expressed in Lord Wensleydale's Golden
Rule in Grey v. Pearson [1857] 6 H.L. Cas. 61 at
page 106. He said:
. in construing wills and indeed statutes, and all written
instruments, the grammatical and ordinary sense of the words
is to be adhered to, unless that would lead to some absurdity, or
some repugnance or inconsistency with the rest of the instru
ment, in which case the grammatical and ordinary sense of the
words may be modified, so as to avoid that absurdity and
inconsistency, but no farther.
There is no doubt about the universal accept
ance of the general principle enunciated in the
Golden Rule.
In my view this principle is of little help in this
instance. There cannot be any controversy as to
what the grammatical and ordinary sense of the
words used in section 27 is.
It is as expressed above, that the absence of the
plaintiff from duty is excusable if that absence has
been "authorized" by or provided for under the
authority of an Act of Parliament. The Criminal
Code, under the provisions of which the plaintiff
was imprisoned, does not authorize nor purport to
authorize the absence of the plaintiff from his
employment.
Counsel for Fier Majesty pointed to several
statutory provisions illustrative of the authoriza
tion or provision for leave of absence such as
subsection 32(3) of the Public Service Employ
ment Act itself in the instance of an employee of
the Public Service being a candidate for election to
the House of Commons, to the legislature of a
province or the Council of the Yukon and North
west Territories; to attend specified meetings of a
union of which the public servant is a delegate and
like circumstances all of which activities are far
removed from the serving of a sentence of
imprisonment.
The principle to which counsel for Her Majesty
had resort was not that expressed in the Golden
Rule but rather the method, in logic, of disproving
an argument by showing that it leads to an absurd
consequence. This is expressed in the Latin
maxim, reductio ad absurdum.
This counsel did by citing the instance where an
employee is sentenced to life imprisonment. If the
Criminal Code should be construed as "authoriz-
ing or providing" for the absence of that employee
then section 27 could not be invoked to deem that
the employee had abandoned his position. Simply
to state the proposition is to demonstrate its
absurdity. To countenance such an absurdity could
not have been the intention of Parliament in enact
ing section 27 of the Act in the terms that it did.
The same would apply to lesser sentences of
imprisonment in excess of one week.
For the foregoing reasons I have concluded that
the plaintiff falls precisely within the four corners
of section 27 of the Act but that does not end the
matter.
The Appeal Division had recent occasion to
consider section 27 of the Act in Morin v. The
Queen [1981] 1 F.C. 3.
A public servant's employment was ended pur
suant to section 27 of the Public Service Employ
ment Act as the deputy head had declared that he
had abandoned his position.
The Trial Judge [ [ 1979] 2 F.C. 642] concluded
that the deputy head had not properly exercised
the power under section 27 in formulating the
opinion that the employee had been absent from
work for reasons within his control.
The fundamental question on appeal was wheth
er the Trial Judge was correct in deciding that the
deputy head had improperly exercised the power
conferred upon him by section 27.
Pratte J., in expressing the unanimous decision
of the Court, said at pages 9-10:
The Trial Judge appears to have considered that the Deputy
Minister exercises a discretionary power by formulating an
opinion on the employee's reasons for absence. This is incorrect:
section 27 confers on the Deputy Minister the power to declare
that an employee has abandoned his position. The Deputy
Minister's opinion on the causes for his subordinate's absence is
only one pre-condition necessary for the exercise of this power.
The Trial Judge apparently based his decision primarily on
the principle that a discretionary power must be exercised fairly
and equitably. To the extent that it exists, this principle means
only that administrative powers must be exercised in a manner,
that is to say in accordance with a procedure, which is in
conformity with the law and with justice; it does not mean that
an administrative power is improperly exercised solely because
the result of its exercise is to create a situation which the Judge
finds to be unfair. The only question for determination by the
Trial Judge was, therefore, as to whether the Deputy Minister
had exercised his power in accordance with the requirements of
section 27 and the general principles of administrative law.
For the reasons I have expressed I have conclud
ed the deputy head in the present case acted in
precise conformity with the three conditions prece
dent which I have enumerated and which are the
conditions precedent prescribed to his ultimate
declaration and transmission thereof in writing to
the Commission.
In the present instance section 27 expresses the
procedural requirements that have been complied
with from which it would follow that so too has
been procedural fairness.
Thus there remains for determination whether
the deputy head had exercised his power in accord
ance with "the general principles of administrative
law".
Implicit in the words, "the general principles of
administrative law" used by Pratte J. is "that in
the administrative or executive field there is a
general duty of fairness" not necessarily coincident
with the rules of natural justice in the sphere of
the quasi-judicial but there may be some overlap.
The requirement of fairness must be balanced by
the needs of the administrative process in question
bearing in mind the nature of the authority, the
nature of the power exercised by him and the
consequences to the individual affected by the
exercise of the power.
Paragraphs, 10 and 14 of the agreed statement
under the heading, ISSUES, pose the questions for
determination in this respect and for convenience I
again reproduce these sections at this juncture.
Paragraph 10 reads:
10. Before terminating the Plaintiffs position did the Defend
ant have an obligation to afford the Plaintiff a hearing and did
the Defendant owe the Plaintiff a duty of fairness?
As previously intimated counsel for the plaintiff
conceded there was no obligation upon the deputy
head to afford the plaintiff a hearing, and that, in
my view, includes an oral hearing or hearing in
writing.
I am in agreement that, in the circumstances of
the present matter, this concession was properly
made.
In some instances where dismissal of an
employee is involved, which is the exercise of a
discretionary administrative decision, a hearing
might be granted to hear the employee's explana
tions which, if meritorious, might lessen the pun-
ishment although it was clear from the outset that
punitive action was justified.
Lord Denning M.R. in Cinnamond v. British
Airports Authority [1980] 2 All E.R. 368 said
with respect to the possibility mentioned immedi
ately above, at page 374:
1 can see the force of that argument. But it only applies when
there is a legitimate expectation of being heard. In cases where
there is no legitimate expectation, there is no call for a hearing.
In the present instance the reason for the plain
tiff's absence from work was well known as was
the duration thereof and accordingly no useful
purpose would have been served by a hearing.
The remaining question posed in paragraph 10,
"did the Defendant owe the Plaintiff a duty of
fairness?" I have answered in the affirmative.
The circumstances put forward as constituting a
breach of fairness are as outlined in paragraph 14
which I repeat:
14. In view of the Public Service Commission Appeal Board
decision and in light of the circumstances in which the Plaintiff
found himself, did the Defendant exercise the discretion avail
able to it under Section 27 of the Public Service Employment
Act in an improper, arbitrary or unreasonable manner?
It is expedient at this point to set forth in
chronological order the events which took place.
February 28, 1980. The plaintiff was on sick
leave without pay from the Post Office.
March 21, 1980. The plaintiff was convicted of
two offences for which he was sentenced to 15
months' imprisonment and one year's probation.
There is one-third off the moment he is confined
leaving 10 months to serve.
March 21, 1980. The plaintiff's wife requests 15
months' leave of absence without pay for her
husband without giving reasons. Refers enquirer to
the plaintiff's lawyer. Such leave was refused as
contrary to the terms of the trade union
agreement.
March 25, 1980. The lawyer was reached who
informed the enquirer that the plaintiff was sen
tenced to 15 months' imprisonment but declined to
give the reason for the sentence. The Post Office
Security and Investigation Services Branch was
asked to investigate.
April 1, 1980. The Post Office Security and
Investigation Services Branch reports. The plain
tiff's release is recommended.
April 3, 1980. The deputy head notifies the
plaintiff of the recommendation for his release in
accordance with subsection 31(2) of the Act.
April 14, 1980. The deputy head, pursuant to
section 31 of the Act, recommends to Commission
that the plaintiff be released.
May 14, 1980. The plaintiff's appeal to the
Public Service Commission Appeal Board heard.
May 16, 1980. Appeal Board finds the deputy
head's decision to recommend the plaintiffs
release was unreasonable. The Board allows the
plaintiff's appeal. Section 28 of Federal Court Act
not invoked to review the decision of the Appeal
Board.
August 27, 1980. The deputy head by instru
ment in writing declares to the Commission that
the plaintiff had abandoned his position and the
plaintiff was thereupon released.
August 27, 1980. The plaintiff was advised by
letter he had been deemed to have abandoned the
service as of that date by action taken under the
authority of section 27 of the Public Service
Employment Act. The plaintiff did not reply to
that letter.
January 21, 1981. The plaintiff was released
from custody. He had served 10 months.
December 1, 1981. The plaintiff worked one
day. He found the work uncongenial.
The plaintiff's income from his employment on
the last day he worked there, i.e., February 28,
1980 was $6.30 per hour for a 40-hour week or
$252 per week. February 15, 1981 to January 27,
1982 the plaintiff received unemployment insur
ance benefits at the rate of $294 every two weeks
to the total amount of $7,350.
February 1982. The plaintiff received welfare
benefits in the amount of $266.
This latter evidence is relative to the quantum of
damages if the defendant is found liable therefor.
The contention advanced on behalf of the plain
tiff as constituting unfairness was that upon the
deputy head being frustrated by the decision of the
Appeal Board to abort his recommendation to
release the plaintiff, without applying to the
Appeal Division of the Federal Court to review
and set aside the decision of the Public Service
Commission Appeal Board, bided his time from
May 17, 1980 until August 27, 1980 (slightly over
three months) when he then declared the plaintiff
to have abandoned his position.
The question raised in paragraph 14 of the
agreed statement is whether, in view of the deci
sion of the Appeal Board, the deputy head exer
cised the "discretion" available to him under sec
tion 27 of the Act "in an improper, arbitrary or
unreasonable manner".
There were two apparent options available to
the deputy head under the Public Service
Employment Act to rid the Post Office of this
employee.
The first option was section 31 of the Act
ranged under the heading of Incompetence and
Incapacity. Under that section when the deputy
head is of the opinion that an employee is
incompetent or incapable of performing the duties
of his position he may recommend to the Commis
sion that the employee be appointed to a lower
position or released.
The deputy head recommended to the Commis
sion the plaintiff's release under this section.
In accordance with the section the deputy head
notified the plaintiff in writing of the recommen
dation made.
The employee has a right to appeal against the
recommendation to a board established by the
Commission and upon being notified of the board's
decision the Commission shall act upon or not act
upon the recommendation accordingly as the
board's decision requires.
The reason given to the plaintiff for the recom
mendation for his release in the letter of notifica
tion was, "your inability to report for work due to
your conviction of a criminal offence and subse
quent incarceration for up to 15 months".
The plaintiff appealed. The Board concluded
that the deputy head had acted hastily and unrea
sonably. The Board reached that conclusion
"because of the temporary and non-recurring
nature of the incapacity" and that it was unreason
able not to wait until an appeal against the sen
tence had been rejected. The view was expressed
that the plaintiff might well be able to be back on
the job much before the expiry of the 15-month
sentence.
I understand that no appeal was presented but if
such an appeal had been launched and pursued it
may well have resulted in an increase in sentence
rather than a reduction.
There is an automatic statutory remission of
one-third of a fixed term. Therefore the plaintiff at
the most would serve 10 months.
That is the time the plaintiff actually served
that is from March 21, 1980 to January 21, 1981.
The possibility that the plaintiff would serve a
lesser time was remote.
I entertain reservations whether in the circum
stances of the plaintiff in this action that resort to
section 31 by the deputy head was proper.
The heading, Incompetence and Incapacity,
serves the same purpose in the interpretation of the
section as does a preamble to a statute. The func
tion of the heading in interpretation is to explain
what is ambiguous in the sections and it may
either restrain or extend as best suits the intention.
There is no incompatibility between the words of
the heading with the language of subsection 31(1)
where the words "incompetent" and "incapable"
are used in the context.
None of those words have any technical mean
ing nor are they related to an art or science in the
context in which they are used. Accordingly being
words of popular meaning they must be taken in
their popular sense.
There is no suggestion that the plaintiff was
incompetent in performing his duties but rather
that he was incapable of performing these duties,
the reason for such conclusion by the deputy head
was that he was "incapable" because he was in
jail.
In its ordinary sense "incapable" means lacking
in the power, ability, fitness or faculty for a par
ticular task.
In the heading the words, Incompetence and
Incapacity are used. Lord Hale's maxim, noscitur
a sociis, is to the effect that where words are used
in association the meanings are limited by the
association in which they are used.
The words "incompetence" and "incapacity" are
sometimes used synonymously and each implies a
mental connotation.
Thus the plaintiff was not unable to perform his
duties due to any mental incapacity but rather by
reason of his physical absence imposed by con
straint upon him.
It is for these reasons that I entertain reserva
tions as to the propriety of adopting the procedure
provided for in section 31 of the Act but it is not
incumbent upon me to decide if section 31 is not
applicable to the circumstances of the plaintiff and
I do not do so.
After a thorough examination of the circum
stances the Security and Investigation Services
Branch recommended, on April 1, 1980, the plain
tiff's release. The departmental hierarchy then
moved with alacrity through the process. The
plaintiff was sentenced to imprisonment for 15
months on March 21, 1980. On April 3, 1980 the
plaintiff was given notice in writing that a recom
mendation was being made to the Commission for
his release and a recommendation was made on
April 14, 1980. Hopefully Canada Post will exhibit
a like promptitude in the delivery of mail.
As was his right the plaintiff appealed under
subsection 31(3). By its decision given on May 16,
1980 the plaintiff's appeal was allowed by the
Appeal Board obviously to the dissatisfaction of
the employer as subsequent events have shown.
There was a remedy available to the employer
and that was to move to set aside the decision of
the Public Service Commission Appeal Board
under section 28 of the Federal Court Act.
Resort was not had to this remedy.
Rather the remedy taken by the deputy head on
August 27, 1980 when by an appropriate instru
ment in writing he declared the plaintiff to have
abandoned his position was by resort to section 27
of the Act.
This action, some three months after the deci
sion of the Board, is susceptible of the interpreta
tion that the Post Office had exhibited a complete
disdain of the Board and its process and such
interpretation, not without apparent justification,
was placed on the action of the Post Office by
counsel for the plaintiff who described it as arro
gant, high-handed but more pertinently as unfair.
The deputy head had taken two kicks at the can.
Of course the deputy head did just that. He
started down the avenue of section 31 of the Act.
There he met with the block of an adverse Board
decision. He did not attempt to remove that ob
stacle by the obvious means available to him.
He abandoned that avenue, reversed his course
and took the avenue offered by section 27 of the
Act. Perhaps the first route selected by him was
the wrong one and he later chose the correct route
to his destination.
The crux of the matter is whether the deputy
head in taking this course of action did so in
breach of the principle of administrative fairness
or, as put in paragraph 14 of the agreed statement,
was resort to section 27 of the Act done in such an
improper, arbitrary or unreasonable manner as to
be a breach of the duty of administrative fairness.
I do not think that the action of the deputy head
constitutes such a breach.
For the reasons previously expressed the requi
site conditions precedent to the operation of
section 27 of the Act were present. The factual
conditions were beyond dispute, and, in my view,
the plaintiff's absence from work was not author
ized by or provided for under the authority of any
Act of Parliament.
That being so the deputy head exercised the
power conferred upon him by section 27 of the
Public Service Employment Act in strict accord
ance with the provisions of that section.
Therefore it cannot be said that the administra
tive authority conferred upon the deputy head was
improperly exercised by him or that he exercised
that authority unreasonably. Neither can the
deputy head be said to have acted arbitrarily. He
was constrained by the provisions of section 27 of
the Act within which bounds he acted. It was
conceded that a hearing was not required. In any
event all relevant facts were known and the plain
tiff could not entertain a legitimate expectation of
a hearing. An oral hearing would have been
impractical and a hearing need not be oral. The
plaintiff was advised of the action taken by the
deputy head by letter dated August 27, 1980. That
letter was in the terms of an announcement and
not an invitation to the plaintiff to make represen
tations. But it did serve to alert the plaintiff to the
action taken by the deputy head and did not elicit
any representations contrary to that action being
taken at that time.
The plaintiff is not entitled to the declaration
sought by him in paragraph 11a) of the statement
of claim to the effect that the plaintiff's employ
ment relationship with Her Majesty has not been
severed and that the plaintiff continues to be an
employee of Her Majesty for reasons expressed
orally at the conclusion of the hearing and which
have been repeated herein.
Also for the reasons expressed herein the plain
tiff is not entitled to the declaration sought in
paragraph 11b) of the statement of claim that the
plaintiffs employment was unlawfully terminated
under section 27 of the Public Service Employ
ment Act.
Because the plaintiff is not entitled to the decla
ration under paragraph 11b) of the statement of
claim it follows that he was not wrongfully dis
missed and is therefore not entitled to the damages
sought in paragraph 11c) of the statement of
claim.
The action is therefore dismissed and the plain
tiff is not entitled to any of the relief sought
thereby.
Her Majesty shall be entitled to her taxable
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.