T-4603-73
Norman L. Wright (Plaintiff)
v.
Her Majesty the Queen, as represented by the
Deputy Minister of Indian Affairs and Northern
Development (Defendant)
Trial Division, Heald J.—Vancouver, March
18-21; Ottawa, April 4, 1975.
Public Service—Court of Appeal finding plaintiff never
separated from employment—Defendant refusing to reinstate
plaintiff—Plaintiff seeking declaration that defendant had no
authority to terminate employment and that he still retains
status as employee—Claim for compensation for wages, salary
or other benefits—Public Service Employment Act, R.S.C.
1970, c. P-32, ss. 28(3), 31 and 39—Public Service Staff
Relations Act, R.S.C. 1970, c. P-35, ss. 23, 90 and 91 Indian
School Residence Administrators and Child Care Workers
Employment Regulations, P.C. 1969-613, ss. 3, 4 and 5—
Public Service Terms and Conditions of Employment Regula
tions, SOR/67-118, ss. 63(1), 106(d)—Federal Court Act, s.
28—Financial Administration Act, R.S.C. 1970, c. F-10, s.
27—Interpretation Act, R.S.C. 1970, c. I-23, ss. 22 and 23—
Civil Service Regulations s. 118.
Plaintiff, a child care worker at the Alberni Indian student
residence, was employed in the Public Service when the resi
dence became part of the Department of Indian Affairs. Over
12 months after plaintiff was employed in the Public Service he
was rejected for cause under section 28(3) of the Public Service
Employment Act, and in July 1970, filed a grievance which was
adjudicated and rejected. On appeal to the Public Service Staff
Relations Board, the decision of the Chief Adjudicator was
upheld. In 1973, the Federal Court of Appeal set aside the
decision. Plaintiff, having sought reinstatement, now seeks: (1)
a declaration that the employer had no authority to terminate
his employment under section 28(3); (2) a declaration that the
termination is null and void, and that plaintiff still retains
status as employee; and (3) compensation for the period of
unlawful termination. Defendant denies having employed plain
tiff, but maintains that if plaintiff was so employed, it was at
pleasure and he was subject to termination for cause; that
plaintiff accepted the termination and has not reported for duty
since July 31, 1970, and that even if plaintiff's employment still
continues, he is not entitled to payment in respect of any period
he ceased work.
Held, awarding plaintiff damages of $20,000, there will be
(1) a declaration that defendant had no authority to terminate
plaintiff's employment under the purported authority of section
28(3); (2) a declaration that the termination is null and void. It
is not necessary to consider whether plaintiff was properly
dismissed for cause, or whether his employment was at pleasure
and subject to termination without cause or notice because he
was never separated from his employment. Save for plaintiff's
attaining mandatory retirement age in 1973, nothing has hap
pened to alter the decision of the Court of Appeal which held
that plaintiff had "never been separated from his employment".
The facts do not support defendant's submission that plaintiff
accepted the termination and has not reported for duty. As to
defendant's claim that if plaintiff's employment still continued
he is not entitled to payment for any period since he ceased to
work, plaintiff is not claiming for work not performed, but
claiming damages as compensation for, defendant's unlawful
act. Defendant prevented plaintiff from continuing in his
employment, causing plaintiff to suffer substantial damages.
Plaintiff had a legal right to continue in his employment until
December 29, 1973, the date of his compulsory retirement.
Loss of wages is a major part of the damages suffered. The
general principle to be followed is to place plaintiff "in the
same position as he would have been in if the contract had been
performed".
Zamulinski v. The Queen [1956-60] Ex.C.R. 175 and
Hopson v. The Queen [1966] Ex.C.R. 608, distinguished.
Queen v. Jennings [1966] S.C.R. 532, Wertheim v.
Chicoutimi Pulp Co. [1911] A.C. 301, Cotter v. General
Petroleums Limited [1951] S.C.R. 154, Sunshine
Exploration Ltd. v. Dolly Varden Mines Ltd. [1970]
S.C.R. 2, followed.
ACTION.
COUNSEL:
M. W. Wright, Q.C., and J. L. Shields for
plaintiff.
I. G. Whitehall for defendant.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady and Morin, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
HEALD J.: The plaintiff was employed as a
"child care worker" by the United Church of
Canada at the Alberni Indian Student residence in
September of 1967, and was still so employed
when said residence became a part of the Depart
ment of Indian Affairs and Northern Development
on April 1, 1969.
Pursuant to section 39 of the Public Service
Employment Act', plaintiff's position had been
R.S.C. 1970, c. P-32.
"excluded" from the operation of the provisions of
that Act and was subject to Regulations 2 reading
in part as follows:
3. Where the Department of Indian Affairs and Northern
Development requires the services of a residence administrator
or child care worker, the deputy head of that department
(a) shall recruit and select a person to provide those services
having regard for the language requirements of the position
as specified in section 20 of the Public Service Employment
Act; and
(b) upon selecting the person to provide those services, may
appoint that person to the position he is to occupy.
4. Where a person has been appointed to the position of
residence administrator or child care worker, he shall be subject
to sections 21, 26, 27, 31 and 32 of the Public Service Employ
ment Act and to any provisions of the Public Service Employ
ment Regulations relating thereto.
5. (1) A person who has been appointed to the position of
residence administrator or child care worker is on probation for
a period of twelve months from the date of his appointment.
(2) The deputy head may, at any time during the probation
period, give notice to a person that he intends to reject that
person for cause on the day stated in the notice, which day shall
not be less than thirty days from the date of the giving of the
notice and, that person ceases to be an employee on that day.
More than twelve months after his being
employed in the Public Service, namely, on June
25, 1970, the Department addressed a letter to the
plaintiff giving him notice of intention "to reject"
him "for cause" pursuant to section 28(3) of the
Public Service Employment Acta and advised him
that his services with the Department were to be
terminated on July 31, 1970, said letter being
delivered personally to the plaintiff on June 30,
1970.
In July of 1970, the plaintiff filed a grievance,
which, in accordance with the provisions of the
Public Service Staff Relations Act, was referred
2 Indian School Residence Administrators and Child Care
Workers Employment Regulations, P.C. 1969-613, March 25,
1969 [SOR/69-137] (hereinafter referred to as the Indian
School Regulations).
R.S.C. 1970, c. P-32.
28. (3) The deputy head may, at any time during the
probationary period, give notice to the employee and to the
Commission that he intends to reject the employee for cause
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 appli
cable in the case of the employee, he ceases to be an
employee at the end of that period.
to adjudication under section 91(1)(b) thereof'.
Plaintiff's "Details of Grievance" reads as follows:
On June 30, 1970, I was given a letter dated June 25, 1970,
advising me that I was to be rejected under section 28(3) of the
Public Service Employment Act and told my employment with
the Department would terminate on July 31, 1970.
In accordance with Schedule "A" of the Public Service Staff
Relations Act regulations, my probationary period expired on
October 1, 1969 and my service cannot be terminated under
Section 28(3) of the Public Service Employment Act.
The Chief Adjudicator, while holding that the
purported "rejection" was invalid and a nullity
under section 28(3) because it occurred after the
expiration of the twelve month probationary period
contemplated by said subsection, and by section 5
of the Indian School Regulations, held, after a
hearing on the merits, that the plaintiff had been
"discharged" and that said "discharge" was "justi-
fied and was necessary for the welfare of the
institution at which he had been employed."
The plaintiff then referred to the Public Service
Staff Relations Board under section 23 of the
Public Service Staff Relations Acts, the following
questions for determination:
° R.S.C. 1970, c. P-35.
91. (1) Where an employee has presented a grievance up
to and including the final level in the grievance process with
respect to
(a) the interpretation or application in respect of him of a
provision of a collective agreement or an arbitral award, or
(b) disciplinary action resulting in discharge, suspension
or a financial penalty,
and his grievance has not been dealt with to his satisfaction,
he may refer the grievance to adjudication.
5 R.S.C. 1970, c. P-35.
23. Where any question of law or jurisdiction arises in
connection with a matter that has been referred to the
Arbitration Tribunal or to an adjudicator pursuant to this
Act, the Arbitration Tribunal or adjudicator, as the case may
be, or either of the parties may refer the question to the
Board for hearing or determination in accordance with any
regulations made by the Board in respect thereof, but the
referral of any such question to the Board shall not operate
to suspend any proceedings in connection with that matter
unless the Arbitration Tribunal or adjudicator, as the case
may be, determines that the nature of the question warrants
a suspension of the proceedings or unless the Board directs
the suspension thereof.
(a) Has the Chief Adjudicator erred in law by not accepting
Mr. Wright's contention that his discharge was unlawful in
that Treasury Board approval had not been requested or
obtained by the Department of Indian Affairs and Northern
Development as required by section 106(d) of the Public
Service Terms and Conditions of Employment Regulations
as amended?
(b) Has the Chief Adjudicator exceeded his jurisdiction by
directing the Treasury Board to give said approval to Mr.
Wright's discharge?
In a written decision rendered on January 29,
1973, said Board held that "the Chief Adjudicator
did not err in law in respect of the issues" raised
by the first question. The Board expressed no
opinion concerning the Chief Adjudicator's direc
tion to Treasury Board. The plaintiff then made an
application under section 28 of the Federal Court
Act to the Federal Court of Appeal to review and
set aside said "decision" of the Public Service
Staff Relations Board.
The Federal Court of Appeal, by decision dated
June 8, 1973', set the said decision aside and
referred the matter back to the Public Service
Staff Relations Board on the basis:
(a) that what it was required to determine on the reference
under section 23 was what decision the Chief Adjudicator
should have given on the facts as found by him, and
(b) that the Chief Adjudicator had no jurisdiction to deal
with the applicant's reference of his grievance to
adjudication.
In paragraph 11 of the statement of claim, the
plaintiff pleads the section 28 application referred
to (supra) and then goes on to state:
In its written Reasons for Judgment delivered on June 8, 1973,
the said Court held unanimously inter alia that the purported
rejection on probation was a nullity and that there was no legal
basis for the Decision of the said Chief Adjudicator and that
the Plaintiff had been unlawfully rejected from his
employment.
The plaintiff further alleges that he has sought
reinstatement of his employment, but the defend
ant has either refused or neglected to reinstate the
plaintiff.
6 Reported [1973] F.C. 765 at 780.
In his prayer for relief, the plaintiff claims:
(a) A declaration that his employer had no authority to termi
nate the employment of the Plaintiff under the purported
authority of Section 28(3) of the Public Service Employment
Act.
(b) A declaration that the purported termination of the Plain
tiff's employment by his employer is null and void and of no
effect whatsoever and that the Plaintiff still retains his status of
an employee as if his employment had not been terminated.
(c) Judgment in favour of the Plaintiff of monies sufficient to
compensate the Plaintiff for wages or salary or any other
benefits or privileges which he would have received if the
employer had not unlawfully terminated the Plaintiff's
employment.
In her statement of defence, the defendant
pleads, inter alia, that: "The Statement of Claim
herein discloses no cause of action for which Her
Majesty may be adjudged liable." The statement
of defence goes on to plead in paragraphs 9 to 12
thereof:
9. In answer to the Statement of Claim as a whole, he says that
if the Plaintiff was employed by Her Majesty or by the
Department, which is not admitted but denied, then the Plain
tiff being a servant of Her Majesty was employed at pleasure
and subject to be terminated without cause or notice.
10. The Plaintiff's alleged employment was terminated by
letter dated June 25, 1970, a copy of which is attached as
Schedule "A", which said termination was for cause.
11. In further answer to the Statement of Claim as a whole
and in the alternative, he says that the Plaintiff accepted the
termination of his alleged employment and has not reported for
duty since July 31, 1970.
12. In further answer to the Statement of Claim as a whole, he
says that if the Plaintiff was employed by Her Majesty or by
the Department, which is not admitted but denied, and his
employment still continues then having regard to the provisions
of the Financial Administration Act, R.S.C. 1970 chapter F-10
and Regulations thereunder the Plaintiff is not entitled to
payment in respect of any period since he ceased to work.
After the decision of the Federal Court of
Appeal dated June 8, 1973, referred to (supra), no
further action was taken by the Public Service
Staff Relations Board nor by any of the depart
ments or branches of Government concerned with
this matter. The plaintiff was, in effect, not
allowed to return to work. He testified at the trial
before me that, immediately thereafter, he did
attempt to find suitable employment, but to no
avail. The plaintiff was born on December 29,
1908 and was thus approaching 62 years of age at
the time. He said that he scanned the newspapers
on a daily basis, registered at the offices of the
Unemployment Insurance Commission, called at
said offices on many occasions, and answered
many newspaper advertisements. He testified that
the Commission finally told him not to bother
coming personally to their offices, that there were
very large numbers of unemployed persons at the
time and that it would be practically impossible, at
his age, to obtain employment. He said further
that from that time until the present, his health
has been good at all times and that he has been at
all times and is now willing to work.
One of the main thrusts of the defendant's
submissions to me was to the effect that the letter
of June 25, 1970, delivered to the plaintiff on June
30, 1970 operated as a termination of the plain
tiff's employment and that said termination was
for cause. In support of this position the defendant
called in evidence some five witnesses, all of whom
were employed at the Alberni Indian Student resi
dence during some of the time the plaintiff was
there employed. One of these witnesses was John
Arthur Andrews, the principal of said school and
the plaintiff's superior. All of these same witnesses
gave evidence at the hearing before the Chief
Adjudicator referred to earlier and in cross-exami
nation at the trial, conceded and agreed that their
evidence before the Chief Adjudicator was to the
same effect as the evidence they gave at trial. (Mr.
Andrews said that his evidence was to some extent
different at trial than before the Chief Adjudicator
but I found nothing in his evidence at trial that
would serve to enhance the defendant's position on
the question of termination for cause). Additional
ly, a number of other employees of the school gave
evidence at the hearing before the Chief Adjudica
tor but did not give evidence at the trial.
In view of the conclusions which I have reached
with respect to the letter of June 25, 1970, it
becomes unnecessary to consider the question as to
whether or not the plaintiff, on the facts here
present, was properly dismissed for cause. How
ever, were it necessary for me to determine this
question, I have no hesitation in finding, on the
evidence adduced at the trial, that the defendant
has fallen far short of proving a dismissal for
cause. I do not propose to detail the defendant's
evidence in this regard. Suffice it to say that, in
my view, all it established was differences of opin
ion and general philosophy between some of the
other employees and Mr. Andrews on the one hand
and the plaintiff on the other hand. Most of the
witnesses called by the defendant at trial were
youthful persons, in their late twenties and thirties.
The plaintiff was in his sixties. In my view, all that
the defendant's evidence really established was the
presence of a "generation gap" between the plain
tiff and a number of the younger employees.
The plaintiff gave detailed evidence at the trial
and was extensively cross-examined by defendant's
counsel. He impressed me as being a very dedicat
ed and hard working employee. I judge him to be a
man of high personal moral standards and found
him to be a completely credible witness. His job
was a difficult one, dealing as he was, with boys
and young men ranging in age from 15 years to 20
years, many of whom were admittedly very dif
ficult to discipline and to deal with.
On the evidence before me, were it necessary for
me to do so, I would have no hesitation in holding
that the purported dismissal for cause was com
pletely without justification.
Defendant's counsel's second main submission
was that since the plaintiff was a servant of Her
Majesty, he was employed at pleasure and subject
to be terminated without cause or notice. In sup
port of this submission, counsel relied on the provi
sions of sections 22 and 23 of the Interpretation
Act 7 . Similarly, in respect of this submission,
because of the conclusions I have reached, it is not
necessary to consider whether plaintiff's employ
ment was at pleasure, and, accordingly, subject to
termination without cause or notice.
I have reached the conclusion, on the evidence
before me, that the plaintiff was never separated
from his employment with the Department of
Indian Affairs and Northern Development. Noth
ing has happened to change the situation since the
judgment of the Federal Court of Appeal except
ing that the plaintiff reached the mandatory retire
ment age of 65 on December 29, 1973. The rele
vant and determining material before me is exactly
the same as it was before the Federal Court of
R.S.C. 1970, c. I-23.
Appeal. At page 779 of his judgment therein, the
learned Chief Justice said:
As I view the matter, there is no evidence on any of the
material that was before any of the tribunals involved, includ
ing this Court, that the applicant was ever separated from his
employment. The rejection was admittedly a nullity as a rejec
tion. It did not purport to be a discharge and it certainly did not
purport to be a discharge for misconduct. In my view, having
attempted to separate an employee from his employment by
rejection after expiration of the probationary period, the
employer could not, in this case, after the event, rely on the
rejection document as having effected a separation of the
employee from his employment by way of dismissal for miscon
duct. Not only does the rejection document not, in terms, come
within the statutory authority for dismissal but an employee
cannot, as a matter of substance, be dismissed for disciplinary
reasons or misconduct without being informed of what is
alleged against him in such terms that he can make his answer
thereto, not only before he is discharged but also at each stage
of the grievance procedure. I repeat that, on the material
available, the applicant has, in my view, never been separated
from his employment. Furthermore, it is difficult to see how, on
the findings of fact of the Chief Adjudicator, there could be
any question of discharge for disciplinary reasons. On the
finding that the applicant was "unsuited to the special require
ments of child care work", it would seem that the most
appropriate provision to consider in his case is section 31, which
provides a special procedure and optional treatment for an
employee who is "incompetent in performing the duties of the
position he occupies".
Mr. Justice Thurlow said at pages 780-81:
The purported rejection of Wright was a nullity. Wright's
grievance was not referable to the adjudicator. There was no
jurisdiction in the adjudicator to adjudge the rejection null as a
rejection and no basis upon which he could adjudge it to be a
discharge. It was by no means a disciplinary discharge. There is
no factual basis for regarding it as a disciplinary action of any
kind. It could not be regarded as a discharge and a fortiori it
could not be regarded as a valid discharge.
I consider that said judgments are binding upon
me, but even if they were not, I would have no
difficulty whatsoever in coming to the same con
clusion as did the three Judges of the Federal
Court of Appeal who heard the section 28
application.
The defendant also pleaded that the plaintiff
accepted the termination of his employment and
has not reported for duty since July 31, 1970. The
facts do not support this submission. The evidence
is to the effect that there was a de facto, if not a de
jure dismissal. The plaintiff was asked to leave the
premises, taking all his belongings with him and
his superannuation contributions were refunded to
him. Plaintiff was paid to July 31, 1970 and
thereafter, effectively prevented by the school offi
cials from continuing in his employment.
The defendant also pleaded that if plaintiff's
employment still continued, then under the provi
sions of the Financial Administration Act' and
Regulations thereunder, the plaintiff is not entitled
to payment in respect of any period since he ceased
to work. In particular, the defendant pleads the
provisions of section 27 of said Act which read as
follows:
27. No payment shall be made for the performance of work,
the supply of goods or the rendering of services, whether under
contract or not, in connection with any part of the public
service of Canada, unless, in addition to any other voucher or
certificate that is required, the deputy of the appropriate
Minister, or another person authorized by such Minister
certifies
(a) that the work has been performed, the goods supplied or
the service rendered, as the case may be, and that the price
charged is according to contract, or if not specified by
contract, is reasonable; or
(b) where a payment is to be made before the completion of
the work, delivery of the goods or rendering of the service, as
the case may be, that the payment is in accordance with the
contract.
and the provisions of regulation 63(1) passed
thereunder which read as follows:
63. (1) Subject to these Regulations and any other enact
ment of the Treasury Board, an employee is entitled to be paid
for services rendered the remuneration applicable to the posi
tion held by him.
In my opinion, these legislative provisions do not
apply to the circumstances here present because
the plaintiff is not asking the Court to direct
payment for the performance of work which was
not in fact performed. Plaintiff's claim is rather
for damages as compensation for the defendant's
unlawful conduct. His submission is that the mea
sure of said damages are the salary plus other
benefits plus privileges which would have accrued
to him but for defendant's said unlawful conduct. I
therefore reject this submission made by the
defendant.
I come now to a consideration of the relief to
which, in my view, the plaintiff has established
entitlement. For the reasons set out herein, it is my
8 R.S.C. 1970, c. F-10.
view that the plaintiff is entitled to the declaration
asked for in paragraph 13(a) of the statement of
claim. He is also, in my view, entitled to a declara
tion that the purported termination of the plain
tiff's employment by his employer was null and
void and of no effect whatsoever. By the effluxion
of time however and because he reached the man
datory retirement age on December 29, 1973, the
plaintiff is not entitled to the further declaration
that he still retains his employee status as if his
employment had not been terminated.
The plaintiff is also entitled, in my view, to
damages. The establishment of the quantum there
of, in the rather unusual circumstances of this
case, is not without considerable difficulty. To
establish damages, the plaintiff called as a witness
Mr. Wendell Hewitt-White, the Director of the
Appeals and Grievances Branch of the Public Ser
vice Alliance of Canada, a union of Federal public
employees and the plaintiff's bargaining agent at
all relevant times. Mr. Hewitt-White produced a
series of calculations as to the amount of salary the
plaintiff would have received for the period August
1, 1970 to December 29, 1973, the date on which
the plaintiff reached retirement age. Based on the
rates of pay contained in the relevant collective
bargaining agreements for this period, the witness
estimated that the plaintiff would have earned the
sum of $23,244.96 for this period. Additionally, he
estimated that the plaintiff would have earned
$5,676.32 in overtime and sleeping-in allowance.
To arrive at this figure, the witness made the
assumption that the plaintiff would work approxi
mately the same amount of overtime as he did
during his last year of employment which figures
were established by the plaintiff's time sheets for
his last year of employment (Exhibit 5). The total
of the above two figures amounts to $28,921.19
from which figure the witness deducted the sum of
$798 received by the plaintiff in unemployment
insurance. The resulting figure amounts to
$28,123.19 and this is the figure at which the
plaintiff seeks to quantify his damages.
The evidence is clear that the defendant effec
tively prevented the plaintiff from continuing in
his employment and by such action, the plaintiff
has suffered substantial damages.
Defendant's counsel submitted that if the plain
tiff was entitled to damages, the proper basis for
establishing the quantum thereof is set out in the
judgment of President Thorson in the case of
Zamulinski v. The Queen 9 and followed by Thur-
low J. in the case of Hopson v. The Queen'''.
In the Zamulinski case (supra), the court held
that the suppliant was entitled to be compensated
in damages for a breach of a statutory right. In
that case, the suppliant had a right under section
118 of the Civil Service Regulations to be given
the opportunity, prior to his dismissal, to present
his side of the case to a senior officer of the
Department nominated by the deputy head. This
right was not given to him. In arriving at the
quantum of damages, the learned President said at
pages 189 and 190:
It is difficult in a case such as this to determine the quantum
of damages, but the difficulty of assessing damages is not a
reason for not assessing them. I do not think that this is a case
for nominal damages. The damages were real but they are
difficult to determine. While I think it is obvious from the
evidence of Mr. Duggleby that he was determined to get rid of
the suppliant out of his Post Office and that if the reason
assigned for his dismissal had been found to be unsound
another reason would have been given or the suppliant would
have been dismissed in any event, the suppliant had a right to
the opportunity given to him by section 118 of the Regulations
and compliance with that right would, in all likelihood, have
given him longer employment in the Post Office than that
which he had and the wages for such continued employment. It
is difficult to say how long that might have been. If the delay
between Mr. Duggleby's recommendation of July 7, 1954 that
he could not recommend the suppliant's retention in the service
and Mr. MacNabb's instruction of September 7, 1954, that he
should be dismissed with two weeks' notice is any criterion, the
time of continued employment of the suppliant while the ma
chinery was being set up for giving him the opportunity pre
scribed by section 118 of the Regulations might have been
substantial. And while it is not likely, in view of Mr. Duggle-
by's determination to get rid of the suppliant, that even if he
had been able to satisfy the senior officer of the department
appointed by the deputy head that the reason assigned for his
dismissal was not substantiated, he would not have been dis
missed on other grounds, or even without grounds, the possibili
ty that his ultimate dismissal might have been delayed is a
factor to be considered.
In view of these contingencies, all of them of an imponder
able character, I think it would not be unfair to assess the
suppliant's damages at $500 and I award this amount.
Using a similar rationale in the Hopson case
(supra), Thurlow J. quantified the damages there
at $400.
9 [1956-60] Ex.C.R. 175.
1° [1966] Ex.C.R. 608.
Defendant's counsel submits in this case that the
evidence establishes clearly that the Department
intended, beyond doubt, to discharge the plaintiff,
that had they adopted the proper procedure as set
out under the relevant statutes and regulations, the
final result would have been the same, that is, the
plaintiff would have been, dismissed and that,
accordingly, the measure of his damages is
restricted to the length of time it would have taken
for the employer to follow the proper procedures to
accomplish the same result. Counsel's submission
is that the proper procedures would have taken a
few weeks or at the most a few months and that,
therefore, the measure of the plaintiff's damages
should be restricted to the amount of a few
months' wages at the very most.
Even on this view of the proper basis for quanti
fying the plaintiff's damages, I cannot agree that,
following the proper procedures, the plaintiff
would have been legally and properly dismissed in
a matter of a few weeks or months.
As stated by Chief Justice Jackett on page 777
of the Court of Appeal judgment (supra), the
plaintiff could have been released for incompeten-
cy or incapacity under section 31 of the Public
Service Employment Act which reads as follows:
31. (1) Where en employee, in the opinion of the deputy
head, is incompetent in performing the duties of the position he
occupies or is incapable of performing those duties and should
(a) be appointed to a position at a lower maximum rate of
pay, or
(b) be released,
the deputy head may recommend to the Commission that the
employee be so appointed or released, as the case may be.
(2) The deputy head shall give notice in writing to an
employee of a recommendation that the employee be appointed
to a position at a lower maximum rate of pay or be released.
(3) Within such period after receiving the notice in writing
mentioned in subsection (2) as the Commission prescribes, the
employee may appeal against the recommendation of the
deputy head to a board established by the Commission to
conduct an inquiry at which the employee and the deputy head
concerned, or their representatives, are given an opportunity of
being heard, and upon being notified of the board's decision on
the inquiry the Commission shall,
(a) notify the deputy head concerned that his recommenda
tion will not be acted upon, or
(b) appoint the employee to a position at a lower maximum
rate of pay, or release the employee,
accordingly as the decision of the board requires.
(4) If no appeal is made against a recommendation of the
deputy head, the Commission may take such action with regard
to the recommendation as the Commission sees fit.
(5) The Commission may release an employee pursuant to a
recommendation under this section and the employee thereupon
ceases to be an employee.
However, if such procedure were followed, the
employee would have the right under subsection
(3) of section 31 to appeal and the appeal proce
dures set out therein would have to be followed. It
is extremely speculative as to the length of time
such appeal procedures would take in a normal
case but I think it fair to say that the time frame
involved would be considerable.
The only alternative procedure which could have
possibly been adopted here would be a discharge as
a penalty for breach of discipline or misconduct.
Section 7(l)(f) of the Financial Administration
Act (supra) reads as follows:
7. (1) Subject to the provisions of any enactment respecting
the powers and functions of a separate employer but notwith
standing any other provision contained in any enactment, the
Treasury Board may, in the exercise of its responsibilities in
relation to personnel management including its responsibilities
in relation to employer and employee relations in the public
service, and without limiting the generality of sections 5 and 6,
(J) establish standards of discipline in the public service and
prescribe the financial and other penalties, including suspen
sion and discharge, that may be applied for breaches of
discipline or misconduct, and the circumstances and manner
in which and the authority by which or whom those penalties
may be applied or may be varied or rescinded in whole or in
part;
Pursuant thereto, regulations entitled "Public
Service Terms and Conditions of Employment
Regulations" were passed by the Treasury Board
effective March 13, 1967" and regulation 106
thereof reads as follows:
106. Subject to any enactment of the Treasury Board, a
deputy head may,
(a) establish standards of discipline for employees;
(b) prescribe the financial and other penalties, including
suspension and discharge, that may be applied for breaches
of discipline or misconduct;
(c) impose and vary or rescind, in whole or in part, the
penalties other than discharge prescribed under paragraph
(b); and
11 SOR/67-118 The Canada Gazette, Part II, Vol. 101.
(d) with the approval of the Treasury Board, discharge or
rescind the discharge of an employee.
Under said regulation, the plaintiff could be
discharged by the deputy head with the consent of
the Treasury Board. However, if that procedure
were to be adopted, the plaintiff would be entitled
to invoke the grievance procedure provided in sec
tions 90 and 91 of the Public Service Staff Rela
tions Act culminating in a decision by the
Adjudicator.
It is clear that such a procedure normally takes
considerable time. The abortive proceedings which
culminated in the Federal Court of Appeal deci
sion referred to earlier were grievance proceedings
under said sections 90 and 91. The plaintiff's
grievance was presented on July 31, 1970, the
decision of the Chief Adjudicator was made on
January 12, 1971, the decision of the Public Ser
vice Staff Relations Board was not made until
January 29, 1973. Thus, said abortive proceedings
commenced on July 31, 1970 and continued for
some 30 months.
It would be pure speculation to say that if the
defendant had acted properly and taken the proper
steps, that a final decision would be reached in any
shorter period of time. Since section 23 of the
Public Service Staff Relations Act provides for a
reference to the Board on "any question of law or
jurisdiction" arising in connection with an adjudi
cation, it is entirely possible that a valid adjudica
tion might follow a similar course entailing a
reference to the Board, thus enlarging consider
ably the time frame and taking some 2 1 / 2 years to
finalize.
If proper procedures had been followed and if
the plaintiff had been accorded the remedies and
rights to which he was entitled by statute and
regulation, he would have continued in his employ
ment during this entire period.
The Department of Indian Affairs and Northern
Development, has, by its actions, swept away the
rights given to this plaintiff by Parliament and, in
my view, the defendant cannot now be heard to say
that the plaintiff's damages are minimal.
While I would likely not have arrived at a much
different figure in quantifying the plaintiff's dam
ages by using the approach used in the Zamulinski
and Hopson cases (supra), it is my opinion that
because in the case at bar, there was no dismissal
of the plaintiff by the defendant, neither of those
cases which both deal with damages for the breach
of a statutory right nor the multitude of cases
dealing with damages for wrongful dismissal can
apply to the factual situation here present.
In the case at bar, the plaintiff was never dis
missed from his employment. The Federal Court
of Appeal held that his purported dismissal was a
nullity. That decision was rendered on June 8,
1973. Thereafter, no steps were taken either to
reinstate the plaintiff or to dismiss him legally in
accordance with the statutes and regulations ear
lier discussed.
The plaintiff had a legal right to continue in his
employment from the time of the abortive dismis
sal on July 31, 1970 until December 29, 1973, the
date of his compulsory retirement. The defendant
in effect wrongfully and unlawfully refused to
allow him to continue in said employment. Hence,
his loss of wages is a substantial component of the
damages which he has suffered. As detailed earlier
herein, the plaintiff made every possible effort to
obtain other employment without success. His
health has been good at all relevant times and he
was able and willing to work throughout the entire
period. The plaintiff has been deprived of his right
to superannuation benefits since the defendant, at
the time of the purported dismissal, refunded his
contributions, thereby terminating any right he
may have had to pension benefits.
Defendant's counsel submitted that any award
in damages should be reduced by having regard to
the fact that whilst an award of damages would
not be taxable, the monthly wages of the plaintiff
would have been taxable. I do not accept this
submission and rely on the reasoning of Mr. Jus
tice Judson in the case of The Queen v. Jennings'
in rejecting said argument.
On the other hand, I am not satisfied that the
plaintiff, had he been allowed to continue in his
employment, would have earned the amount in
excess of $5,000 which is claimed for overtime and
12 [1966] S.C.R. 532 at pages 545 and 546.
sleeping-in allowance. There was evidence that the
amount of overtime being worked by child care
workers after 1970 had been reduced. I do think,
however, that in the normal course of events, he
would have worked some overtime. Likewise, the
estimates of salary for the period August 1, 1970
to December 29, 1973 are based on the assumption
that the plaintiff would work as long hours during
those years as he did during his last year of
employment. This makes the estimates of salary
lost in those years speculative to a minor extent.
The general principle to be followed in awarding
damages was expressed by Lord Atkinson in Wer-
theim v. Chicoutimi Pulp Co. ([1911] A.C. 301 at
307) as follows:
And it is the general intention of the law that, in giving
damages for breach of contract, the party complaining should,
so far as it can be done by money, be placed in the same
position as he would have bccn in if the contract had been
performed . .. That is a ruling principle. It is a just principle.
This statement of the law was quoted with approv
al by the Supreme Court of Canada in Cotter v.
General Petroleums Limited ([1951] S.C.R. 154)
and in Sunshine Exploration Ltd. v. Dolly Varden
Mines Ltd. ([1970] S.C.R. 2).
Applying those principles to the facts of this
case and having regard to the various contingen
cies and imponderable factors here present, I have
concluded that the sum of $20,000 is a proper
figure to compensate the plaintiff for all of the
damages he has suffered.
There will therefore be judgment as follows:
1. A declaration that the defendant had no
authority to terminate the employment of the
plaintiff under the purported authority of sec
tion 28(3) of the Public Service Employment
Act.
2. A declaration that the purported termination
of the plaintiff's employment by the defendant is
null and void and of no effect whatsoever.
3. The plaintiff will have judgment in damages
against the defendant in the sum of $20,000.
4. The plaintiff will have his costs of the action
against the defendant.
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.