T-4619-73
Rodier Jean (Plaintiff)
v.
The Queen in right of Canada, as represented by
the President of the Treasury Board and the
Minister of Supply and Services (Defendants)
Trial Division, Cattanach J.—Ottawa, Novem-
ber 13; December 10, 1974.
Public servant—Absent on lawful strike—No pensionable
service for period of strike—Public Service Staff Relations
Act, R.S.C. 1970, c. P-35, s. 2—Public Service Superannua-
tion Act, R.S.C. 1970, c. P-36, ss. 4, 5, 10 and S.C. 1870, c.
4, preamble—Labour Relations Act, R.S.O. 1960, c. 202, ss.
1(2), 3, 50, 69.
The plaintiff was employed in the Public Service of
Canada from 1943 until his retirement in 1973 and made
contributions under the Superannuation Act from 1948. He
was a member of the union certified as bargaining agent for
the unit in which he was employed. The union was governed
by a collective agreement with the Treasury Board, which
agreement expired in 1971. By reason of a strike called by
the union, the plaintiff was absent from his duties from
February 7 to 28, 1972. On settlement of the strike, a new
agreement was entered into by the same parties in March
1972. The plaintiff remitted his superannuation payments by
personal cheque to the Pension Branch of the Department of
Supply and Services for the period of the strike, but the
cheque was returned to him. The plaintiff sued for a declara
tion that he was entitled to contribute to the Superannuation
Account, in respect of, and to receive pension for, the
period of absence on strike.
Held, dismissing the action, the plaintiff was disentitled,
for the period in question, to benefits under the Public
Service Superannuation Act. The strike was permissible
under the Public Service Staff Relations Act under which
definition of "employee" in section 2 he maintained the
status of an employee during a lawful strike. The latter
status lacked two features of the normal relationship in
employment: the employee was not bound to work and the
employer was not bound to pay salary. The Public Service
Superannuation Act intended that the contributor's pension
was to be based upon the annual salary received by him
during his employment. The plaintiff's pension was to be
calculated upon the annual salary he would normally have
received less the salary he did not receive while on strike.
C.P.R. v. Zambri [1962] S.C.R. 609, applied.
ACTION.
COUNSEL:
M. W. Wright, Q.C., for plaintiff.
R. G. Vincent for defendant.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
delivered in English by
CATTANACH J.: By his statement of claim the
plaintiff seeks a declaration that, during the
period from February 7, 1972 to February 28,
1972 during which period the plaintiff legally
participated in a strike which the association of
workers of which the plaintiff is a member was
lawfully entitled to call and did call,
(a) the plaintiff was an employee in the
Public Service of Canada;
(b) such period should be regarded as pen-
sionable service for the purposes of the
Public Service Superannuation Act; and
(c) the plaintiff was entitled to contribute to
the Superannuation Account in respect of that
period and to receive benefits under the
Public Service Superannuation Act for such
period.
The parties agreed upon the following state
ment of facts:
1. The Plaintiff has been a Public .Servant since 1943 and
was continuously employed in the Public Service of Canada
until he retired on superannuation on the 26th day off
September, 1973. He commenced making contributions to
the Superannuation Account in 1948 and with the exception
of the period from the 7th day off February, 1972 until the
28th day of February, 1972, maintained such contributions.
2. On or about the 7th of March, 1969 the Public Service
Staff Relations Board certified the International Brother
hood of Electrical Workers, Local 2228, as the bargaining
agent for a bargaining unit consisting of all employees of
Her Majesty the Queen in right of Canada, as represented
by the Treasury Board, Electronic Group Category. The
Plaintiff was at the time of the said certification, a member
of the said bargaining unit and continued as such until his
retirement on superannuation as aforesaid.
3. On or about the 22nd day of December, 1969 a Collec
tive Agreement was entered into between the Treasury
Board of Canada and the International Brotherhood of
Electrical Workers, Local 2228. The said Collective Agree
ment covered the employees in the bargaining unit described
in the preceding paragraph hereof.
4. The said Collective Agreement between the Treasury
Board, as employer, and the said International Brotherhood
of Electrical Workers expired on the 30th day of June,
1971. Subsequently a strike, permissible under the provi
sions of the Public Service Staff Relations Act, occurred.
5. On the 6th day of February, 1972 the International
Brotherhood of Electrical Workers, Local 2228, called a
strike of its members employed in the bargaining unit
described in paragraph 2 above. As a result, the Plaintiff
went out on strike and remained on strike from the 7th of
February, 1972 until the 28th of February, 1972.
6. The said Local 2228 was entitled under the Public Ser
vice Staff Relations Act, to declare and authorize the said
strike and the Plaintiff was legally entitled to participate in
such strike. The Plaintiff had not been designated by his
employer under s. 79 of the Public Service Staff Relations
Act and his participation in the said strike was permissible
and within the contemplation of the Public Service Staff
Relations Act.
7. Coincidental with the settlement of the said strike, a new
Collective Agreement dated the 17th day of March, 1972,
was entered into between the Treasury Board of Canada and
the said Local 2228.
8. The Plaintiff remitted a cheque in the amount of $88.50
to the Pension Division of the Ministry of Supply and
Services, representing his superannuation payment for the
period of the 7th day of February to the 28th day of
February, 1972.
9. On or about the 19th of February, 1973 the Superannua-
tion Division of the Department of Supply and Services
notified the Plaintiff that the period between the 7th day of
February and the 28th day of February, 1972 was not
considered as a pensionable period of service. Subsequently,
by cheque dated the 21st of August, 1973, the Plaintiff
received from the Defendants a cheque for $74.51, the stub
attached to the said cheque indicating that the Defendants
had deducted therefrom the following monies, namely:—
$4.43 for Federal Income Tax
.71 for Quebec Provincial Hospital Tax
8.85 for Quebec Income Tax
10. During the said period of the 7th of February and the
28th of February, 1972, the Plaintiff was an employee of
Her Majesty the Queen.
11. The only dispute between the parties hereto is the
question of law whether the period from the 7th of Febru-
ary, 1972 to the 28th of February, 1972 qualifies as a
pensionable period of service under the Public Service
Superannuation Act.
12. The parties hereto agree that if this Honourable Court
declares in favour of the Plaintiff as requested in paragraph
14(a) of the Statement of Claim, then the accounting
referred to in paragraph 14(b) of the said Statement of
Claim will be agreed upon between the parties hereto,
thereby obviating the necessity of having this Court take an
accounting.
13. The Defendants agree that the documents referred to in
the List of Documents filed by the Plaintiff pursuant to Rule
447 may be filed as exhibits herein.
In paragraph 12 of the statement of claim the
plaintiff alleges that, during the period of the
duration of the strike in question, he was an
employee of Her Majesty the Queen.
By paragraph 4 of the statement of defence
this allegation is admitted.
In paragraph 10 of the agreed statement of
facts it is again agreed that during the period
from February 7 to February 28, 1972 the plain
tiff was an employee of Her Majesty.
In view of the express provisions in section 2
of the Public Service Staff Relations Act, R.S.C.
1970, c. P-35 in which "employee" is defined as
meaning a person employed in the Public Ser
vice and that for the purpose of that definition
"a person does not cease to be employed in the
Public Service by reason only of his ceasing to
work as a result of a strike", and in view of the
decision of the Supreme Court of Canada in
C.P.R. v. Zambri' in which the Court interpret
ed a similar provision in the Labour Relations
Act 2 , I fail to follow how the defendants could
do otherwise than admit, as they have done, that
the relationship of employer and employee con
tinued to subsist between Her Majesty and the
plaintiff during the period of the strike.
However the fact that this relation so subsists
during the strike of itself does not resolve the
question whether the period of the strike in
which the plaintiff participated must be regard
ed as pensionable service for which the plaintiff
was entitled to contribute and to receive super-
annuation benefits therefor.
' [1962] S.C.R. 609.
2 R.S.O. (1960) c. 202.
By reason of the agreement between the par
ties this remains the sole issue that I am called
upon to determine.
That issue is succinctly and aptly expressed in
paragraph 11 which for convenience and
emphasis I here repeat:
The only dispute between the parties hereto is the ques
tion of law whether the period from the 7th of February,
1972 to the 28th of February, 1972 qualifies as a pension-
able period of service under the Public Service Superannua-
tion Act.
Despite the fact that the relationship of
employer and employee is preserved by the
Public Service Staff Relations Act the plaintiff
withdrew his services from his employer during
the period of the strike. A logical corollary is
that the employer is not obliged to pay salary
for services not received nor did Her Majesty
do so.
The exact nature of the relationship of
employer and employee which is preserved or
created by the Public Service Staff Relations
Act during the continuance of a lawful strike
lacks two of the principal features of the normal
relationship of employer and employee in that
the employee is not bound to work and the
employer is not bound to pay salary.
As I appreciate the submission of counsel on
behalf of the plaintiff it is based on section 4(1)
of the Public Service Superannuation Act which
reads:
4. (1) Every person employed in the Public Service, .. .
is required to contribute to the Superannuation Account, by
reservation from salary or otherwise, ... .
Because the relationship of employer and
employee is preserved by the Act it is contend
ed that the plaintiff is obligated to contribute to
the Superannuation Account by section 4(1).
Because he is not in receipt of salary that con
tribution could not be made "by reservation
from salary" and accordingly the plaintiff must
make his contribution by other means, which he
sought to do by his personal cheque in the
appropriate amount. It is contended that this he
was entitled and obligated to do since that is
what is contemplated by the words "or other
wise" in section 4(1).
The forerunner of the present Public Service
Superannuation Act was passed by the first
Parliament of Canada S. C. 1870-71, c. 4 being
an "Act for better ensuring the efficiency of the
Civil Service of Canada, by providing for the
superannuation of persons employed therein."
That statute contained a preamble which
read:
Whereas, for better ensuring efficiency and economy in
the Civil Service of Canada, it is expedient to provide for
the retirement therefrom, on equitable terms, of persons,
who from age or infirmity cannot properly perform the
duties assigned to them.
A preamble may be usefully looked at to
ascertain the object of a statute.
The preamble of the first superannuation Act
is as valid today as the day upon which it was
enacted.
The purpose of that Act and all succeeding
Acts has been to provide for the retirement of
public servants on equitable terms.
The right of a public servant to a pension
upon retirement is a statutory right and there
fore that right is dependant upon the provisions
of the Public Service Superannuation Act.
This statute contains detailed provisions as to
the rights and obligations of contributors and
their dependants and the rights and obligations
of the employer all designed to provide a retire
ment pension to an employee on equitable
terms.
By section 4(1)(j) a male contributor to the
Superannuation Account is obliged to pay:
(1) ... six and one-half per cent of his salary minus an
amount equal to the amount he would be required to con
tribute under the Canada Pension Plan in respect of that
salary if that salary, expressed in terms of an annual rate,
were the total amount of his income for the year from
pensionable employment as defined in that Act and that Act
applied to his employment, ... .
Salary is defined in section 2(1) in part as
meaning,
... the compensation received by the person in respect of
whom the expression is being applied for the performance
of the regular duties of a position or office, ... .
From the two foregoing provisions quoted the
calculation of an employee's contribution is
based upon the compensation received by him
for the performance of the "regular duties of his
position."
The computation of the annuity which a con
tributor is entitled to receive is outlined in sec
tion 10(1)(a) and (b) which reads:
10. (1) The amount of any annuity to which a contributor
may become entitled under this Part is an amount equal to
(a) the number of years of pensionable service to the
credit of the contributor, not exceeding thirty-five, divid
ed by fifty,
multiplied by
(b) the average annual salary received by the contributor
during any six-year period of pensionable service selected
by or on behalf of the contributor, or during any periods
so selected consisting of consecutive periods of pension-
able service totalling six years, or
It is significant to note that the multiplier in
the formula outlined in section 10(1) is "the
average annual salary received by the
contributor".
Obviously the intent of the Act is that the
pension of a contributor on his retirement is
calculated upon the annual salary received by
him during his employment for services ren
dered in the performance of his regular duties.
The statute provides for specific exceptions
to that basic overall principle. In section
5(1)(a)(iii)(B) a contributor may count as pen-
sionable service any period he was absent from
the Public Service on active service in the
forces in World War I or in World War II,
having been granted leave of absence to enlist.
In that event the contributor, not performing
duties in the Public Service nor in receipt of pay
from which a deduction cannot be made, may
pay for that service. By virtue of section 10(6)
he is deemed to have been in receipt of an
annual salary. Similarly another exception is
made for a contributor who is absent from the
Public Service on leave of absence without pay.
By virtue of section 10(6)(d that person is
deemed to be in receipt of a salary during that
period at an annual rate and may contribute
with respect to a pension annuity for that
period. Contributions by means other than
deduction of salary is contemplated by the
words "or otherwise" in section 4(1) with
respect to those employees.
It is conceded by counsel for both parties that
the plaintiff was not on leave of absence with
out pay and I think correctly so. Absence with
leave necessarily implies approval of that
absence by the absentee's superior officer. This
the plaintiff did not have. Therefore he was
absent from his regular duties without leave. He
was on strike. It would be naive to expect that if
the plaintiff had applied to his deputy head for
leave of absence to go on strike, the approval
would be forthcoming. The plaintiff did not ask
for such leave.
I have examined the Public Service Superan-
nuation Act with care and have not been able to
find an exception therein where a contributor
who is absent on strike is deemed to be in
receipt of annual salary for that period of
absence and that he may contribute to the
Superannuation Account for that period, nor
were counsel for the parties able to direct my
attention to such an exempting provision in the
statute comparable to the provisions respecting
absence with leave and absence on active ser
vice simply because there is no such provision.
The collective agreement between Her Majes
ty as employer and the association of workers
of which the plaintiff was a member provides in
broad terms that the rights and obligations of
the parties are preserved but it does not specifi
cally provide for the detailed rights the plaintiff
is to enjoy while on strike.
In the absence of a specific exception being
made in the statute for the circumstance in
which the plaintiff finds himself or a specific
provision in the collective agreement between
the parties the matter falls to be determined
upon the examination of the applicable provi
sions of the Public Service Superannuation Act
to which I have referred.
In my view the amount of the plaintiff's
superannuation annuity must be computed upon
the formula outlined in the statute. That compu
tation is based upon the average annual salary
received by the contributor over his six best
years. In a particular year the annual salary
means the compensation actually received by
him in that fiscal period for the duties actually
performed by him in the execution of his
position.
The plaintiff, because he was on strike, volun
tarily withdrew his services and accordingly did
not perform the regular duties of his position.
Her Majesty is not bound to pay compensation
for services not received. Therefore the annual
salary of the plaintiff is the compensation paid
to him in the year for services performed by
him in that year. In short it is the annual salary
he normally would have received less the salary
he did not receive while he was on strike.
This conclusion is supported by the specific
provisions of the statute to which I have
referred and by the general purpose of the stat
ute and its antecedents which is to provide for a
public servant's retirement on equitable terms.
It is incongruous that an employee should be
rewarded by a pension which takes into account
a period during which the employee voluntarily
withdrew his services and for which period the
employer is not bound to pay salary unless the
situation is , expressly covered by a specific
exempting provision in the Public Service Super-
annuation Act or the collective agreement be
tween Her Majesty and the union on behalf of
the plaintiff but which neither the statute nor
the agreement contains. Bearing in mind that
Her Majesty would be obligated to contribute to
the Superannuation Account an amount equal to
the plaintiff's contribution thereto, that is not an
"equitable term" within the purpose of the stat
ute when services were not received by Her
Majesty.
It follows logically from this conclusion that
the period the plaintiff was on strike does not
qualify as pensionable service and the plaintiff
is not entitled to contribute to the Superannua-
tion Account for that period and he is not en
titled to receive benefits under the statute for
that period.
The plaintiff sought to contribute to the
Superannuation Account by tendering his
cheque in the amount of $88.50. The amount so
tendered was not accepted and was returned to
the plaintiff less an amount of $13.28 which
was retained for Federal and Quebec income
tax and a further amount of .71 for provincial
hospital tax. I fail to follow why the entire
amount of the plaintiff's cheque was not
returned to him because for that period he
received no income and accordingly income tax
would not be exigible.
However the parties have agreed that this
matter will be settled between themselves and
accordingly I am not obligated to make an
accounting in this respect.
For the reasons expressed above it follows
that the plaintiff's action is dismissed and Her
Majesty is entitled to 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.