A-859-77
The Queen (Appellant) (Defendant)
v.
Michel Ouimet (Respondent) (Plaintiff)
Court of Appeal, Jackett C.J., Urie J. and Kerr
D.J.—Ottawa, June 13 and 14, 1978.
Jurisdiction — Public Service — Probationary period of
employee extended, under s. 30(2) of the Public Service
Employment Regulations, beyond period required in the
Regulations — Employee rejected during this extension of
probationary period — Trial Division declaring (1) s. 30(2) of
the Regulations ultra vires, (2) termination of employment to
be under purported authority of s. 28(3) of Public Service
Employment Act and (3) the termination was null and void
and employee's status retained as if employment not terminat
ed — Whether or not purported extension of probationary
period an exercise of power delegated by Public Service Com
mission under s. 6(1) of the Public Service Employment Act —
Whether or not dismissal an exercise of Crown prerogative to
dismiss servant at pleasure — Public Service Employment
Act, R.S.C. 1970, c. P-32, ss. 6, 24, 28 — Public Service
Employment Regulations, SOR/67- 129, s. 30.
This is an appeal from a judgment of the Trial Division
granting the respondent relief by way of declaration. Respond
ent was employed in the Penitentiary Service as a member of
the federal Public Service. His probationary period of employ
ment was extended beyond the period stipulated in the Public
Service Employment Regulations, on the authority of section
30(2) of the Regulations; during this extension, he was
informed of his rejection on probation. The Trial Division
declared that section 30(2) of the Public Service Employment
Regulations was ultra vires; that the defendant had no au
thority to terminate the plaintiff's employment under the pur
ported authority of section 28(3) of the Public Service
Employment Act; and that the purported termination of plain
tiffs employment was null and void and that the employee still
retained his status as employee as if his employment had not
been terminated. Appellant maintains that the purported exten
sion of the probationary period was an exercise of a power
delegated by the Public Service Commission under section 6(1)
of the Public Service Employment Act, and alternatively con
tends that the purported rejection should be treated as a
dismissal, based to some extent on the prerogative right of the
Crown to dismiss a servant at pleasure.
Held, the appeal is dismissed in so far as the principal point
is concerned. Assuming, without deciding, that the Commission
could have made a delegation, under section 6(1), of its au
thority under section 28(1) to establish a probationary period in
the manner and on the condition that such periods be no less
than six months and no greater than one year, this is not what
Regulation 30(1) and (2) purports to do. Regulation 30(1)
exercises the Commission's authority to establish "The proba
tionary period referred to in subsection (1) of section 28" and
Regulation 30(2) authorizes the deputy head to extend that
period. Appellant's alternative position—that the purported
rejection should be treated as a dismissal and is based to some
extent on the prerogative right of the Crown to dismiss a
servant at pleasure—cannot be accepted. A prerogative right of
the Crown is subject to statute. Tenure at pleasure is subject to
the Public Service Employment Act and any other Act or
regulations thereunder. There is nothing either in the pleadings
or the facts agreed upon on which to base the declaration that
Ouimet "still retains his status as an employee as if this
employment had not been terminated". The Court may declare
that the rejection action in 1976 was not effective to terminate
employment, but it does not follow that nothing has happened
since to terminate it.
APPEAL.
COUNSEL:
G. W. Ainslie, Q.C., and L. S. Holland for
appellant (defendant).
M. W. Wright, Q.C., and A. Raven for
respondent (plaintiff).
SOLICITORS:
Deputy Attorney General of Canada for
appellant (defendant).
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for respondent
(plaintiff).
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is an appeal from a judg
ment of the Trial Division [ [ 1978] 1 F.C. 672]
granting the respondent relief by way of
declaration.
The respondent was employed in the Penitentia
ry Service as a member of the federal Public
Service on June 9, 1975. On December 8, 1975, a
letter was written to the respondent purporting "to
extend" his "probationary period" for six months
expiring on the 9th day of June, 1976. On March
11, 1976, the respondent was notified, in effect,
that it had been decided to reject him for cause
effective March 20, 1976.
The period during which an employee in the
Public Service is on probation and the right to
reject such an employee during that period depend
on section 28 of the Public Service Employment
Act, R.S.C. 1970, c. P-32, which reads in part:
28. (1) An employee shall be considered to be on probation
from the date of his appointment until the end of such period as
the Commission may establish for any employee or class of
employees.
(2) Where an appointment is made from within the Public
Service, the deputy head may, if he considers it appropriate in
any case, reduce or waive the probationary period.
(3) The deputy head may, at any time during the probation
ary period, give notice to the employee and to the Commission
that he intends to reject the employee for cause at the end of
such notice period as the Commission may establish for any
employee or class of employees and, unless the Commission
appoints the employee to another position in the Public Service
before the end of the notice period applicable in the case of the
employee, he ceases to be an employee at the end of that
period.
and section 30 of the Public Service Employment
Regulations, SOR/67-129,' as made by the Public
Service Commission on March 13, 1967, which
reads, in part:
30. (1) The probationary period referred to in subsection
(1) of section 28 of the Act for an employee who comes within
a class or group mentioned in Column I of Schedule A is the
period set out opposite that class or group in Column II of the
said Schedule.
(2) The deputy head may extend the probationary period of
an employee but the period of extension shall not exceed the
period for that employee determined pursuant to subsection
(1).
It is common ground that the period prescribed by
Regulation 30(1), in the case of the respondent,
was a period of six months ending December 8,
1975.
On February 25, 1977, an action was launched
in the Trial Division by a statement of claim
alleging, inter alia, the above facts and claiming
(a) A declaration that Section 30(2) of the Public Service
Employment Regulations is ultra vires;
(b) A declaration that the Defendant had no au
thority to terminate the employment of the Plaintiff under
the purported authority of Section 30(2) of the Public Ser
vice Employment Regulations; 2
I The Commission's regulation-making powers are found in
section 33 of the statute, which reads:
33. Subject to this Act, the Commission may make such
regulations as it considers necessary to carry out and give
effect to this Act.
2 We were advised by counsel that this latter reference was
changed, by amendment at Trial, to a reference to section
28(3) of the statute.
(c) A declaration that the purported termination of the
Plaintiff's employment by his Employer is null and void and
of no effect whatsoever and that the Plaintiff still retains his
status as an employee as if his employment had not been
terminated;
(d) His costs of this action; and
(e) Such further and other relief as the nature of this case
may require and as this Honourable Court may deem just.
On October 25, 1977, judgment was rendered in
that action, the operative part of which reads:
IT IS DECLARED THAT:
(a) Section 30(2) of the Public Service Employment Regu
lations is ultra vires;
(b) the defendant had no authority to terminate the employ
ment of the plaintiff under the purported author
ity of section 28(3) of the Public Service Employment Act;
(c) the purported termination of the plaintiff's employment
by his employer is null and void and of no effect whatsoever
and that the plaintiff still retains his status as an employee as
if his employment had not been terminated;
(d) the plaintiff is entitled to his taxable costs of this action.
This appeal is from that judgment.
No question has been raised on this appeal as to
whether the matter raised by the action was appro
priate for declaratory relief and I express no opin
ion on that question. 3
The point of substance that the action was
apparently intended to raise is whether the respon
dent had been given his rejection notice "during
the probationary period" so as to fall within the
authority conferred by section 28(3). 4
It is common ground that the rejection notice
was not given within the probationary period as
fixed by Regulation 30(1). 5 Furthermore, in my
view, a probationary period that has been estab
lished for the purpose of section 28(1) of the
statute cannot be extended in the absence of
express authority. 6
3 Compare Vine v. National Dock Labour Board [1957] A.C.
488, and Francis v. Municipal Councillors of Kuala Lumpur
[1962] 3 All E.R. 633.
4 No question was raised as to whether the notice given was
otherwise a notice of intention such as is contemplated by
section 28(3).
5 No question was raised as to whether a regulation fixing a
probationary period was an appropriate way for the Commis
sion to establish such a period for the purpose of section 28(1)
of the statute.
6 Compare Philco Corporation v. R.C.A. Victor Corporation
[ 1967] 1 Ex.C.R. 450, and Texaco Development Corporation v.
Schlumberger Ltd. (1968) 37 Fox Pat. C. 92.
The appellant's position is that the purported
extension of the probationary period was an exer
cise of a power delegated by the Public Service
Commission under section 6(1) of the Public Ser
vice Employment Act, which reads:
6. (1) The Commission may authorize a deputy head to
exercise and perform, in such manner and subject to such terms
and conditions as the Commission directs, any of the powers,
functions and duties of the Commission under this Act, other
than the powers, functions and duties of the Commission in
relation to appeals under sections 21 and 31 and inquiries under
section 32.
During the course of the argument before us,
counsel put this position in various ways. None of
them was, in my view, more persuasive, if indeed
different in substance, from the way the matter
was put in the appellant's memorandum, viz:
5. It is submitted that when subsections 30(1) and (2) of the
Public Service Employment Regulations are construed to
gether, it becomes apparent that the Commission has simply
exercised its power under subsection 6(1) of the Public Service
Employment Act and has delegated to the Deputy Head the
power under Section 28 of the Act to prescribe probationary
periods on the condition that such periods in this instance be no
less than six months and no greater than one year.
In my view assuming, without deciding, that the
Commission could have made a delegation, under
section 6(1), of its authority under section 28 (1) to
establish a probationary period in the manner and
on the condition suggested by the appellant, this is
not what Regulation 30(1) and (2) purports to do.
In my view, Regulation 30(1) exercises the Com
mission's authority to establish "The probationary
period referred to in subsection (1) of section 28"
and Regulation 30(2) authorizes the deputy head
to "extend" that period. For that reason, I am of
the view that the appeal should be dismissed in so
far as the principal point involved is concerned.'
Having regard to that conclusion, it is not necessary to do
more than advert to other difficulties that I see in accepting the
appellant's argument. In particular, I question whether the
probationary system adopted by section 28 of the statute, when
section 28 is read as a whole—due account being taken of the
express statutory authority given to the deputy head to reduce
the probationary period fixed by the Commissioner under
section 28(1)—and when it is compared with the earlier system
that it replaces, contemplates a probationary period that has
(Continued on next page)
While it was not really relied on during argu
ment, I deem it advisable to refer to an alternative
position taken in the appellant's memorandum,
which would seem to be that the purported rejec
tion action should be treated as a dismissal and is
based to some extent on the prerogative right of
the Crown to dismiss a servant at pleasure.' A
prerogative right of the Crown is, of course, sub
ject to statute 9 and the relevant provision here is
section 24 of the Public Service Employment Act,
which reads:
24. The tenure of office of an employee is during the pleas
ure of Her Majesty, subject to this and any other Act and the
regulations thereunder and, unless some other period of
employment is specified, for an indeterminate period.
Under this provision, tenure at pleasure is "subject
to this (the Public Service Employment Act) and
any other Act and the regulations thereunder".
Various methods are provided by statute for termi
nation of a public servant's employment. 10
In my view, the alternative position, which was
not really relied on, cannot be accepted. At least
for the purpose of the statutes that govern the
Public Service, an ineffective attempt to reject
under section 28 is not the equivalent of a
dismissal. " Rejection is a part of a probationary
(Continued front previous page)
not been established before the employee is engaged or a period
that is subject to change after he is engaged. Compare section
24(1) of the Civil Service Act, R.S.C. 1927, c. 22, which reads:
24. The deputy head may, at any time before the expira
tion of six months, reject any person assigned or appointed to
any position under his control or direction, or he may extend
the period of probation within which such person may be
rejected for another six months; ....
See also sections 48 and 49 of the Civil Service Act, S.C.
1960-61, c. 57.
e Compare Zamulinski v. The Queen [1956-60] Ex.C.R. 175.
9 See Attorney General v. De Keyser's Royal Hotel, Limited
[1920] A.C. 508, per Lord Dunedin, at page 526:
Inasmuch as the Crown is a party to every Act of Parliament
it is logical enough to consider that when the Act deals with
something which before the Act could be effected by the
prerogative, and specially empowers the Crown to do the
same thing, but subject to conditions, the Crown assents to
that, and by the Act, to the prerogative being curtailed.
10 Compare Wright v. Public Service Staff Relations Board
[1973] F.C. 765, at pages 775 et seq. (See ANNEX.)
" Compare Bell Canada v. Office and Professional
Employees' International Union [1974] S.C.R. 335 at page
340, and Jacmain v. Attorney General of Canada [1978] 2
S.C.R. 15.
system designed to choose permanent employees
from those who are employed on a trial basis, and
any "cause" based on a view as to the probability
of the person developing into an effective member
of the "team" would be an acceptable basis for it.
Dismissal is quite a different action. It is ordinar
ily the action whereby a permanent employee's
employment status is terminated otherwise than on
retirement; and what would be sufficient "cause"
for dismissal would be the result of the application
of principles quite different from those applicable
in connection with rejection. Indeed, there is no
presumption that the officer who can act on behalf
of Her Majesty in rejecting an employee is one
who would have authority to dismiss. In any event,
as I read the pleadings, there was no issue raised
by the appellant as to whether the respondent had
been dismissed.
I have difficulty, however, with upholding the
latter part of paragraph (c) of the declaration in
the judgment appealed against, whereby it is
declared that the respondent "still retains his
status as an employee as if his employment had
not been terminated". As I see it, there is nothing
either in the pleadings or the facts agreed upon on
which to base this declaration. It is one thing to
declare that the rejection action in 1976 was not
effective to terminate the employment. It does not
follow that nothing has happened since to termi
nate it. There is an infinite variety of possibilities
as to what has happened in the interim; and each
possible set of facts might raise different questions
as to whether the respondent still retains his status
in the Penitentiary Service and as to whether he
has any right to salary or damages in respect of
the interim period. There is simply no basis in the
pleadings or in the facts established for a declara
tion with regard thereto. 12 In my view, the judg
ment of this Court should be that the words "and
that the Plaintiff still retains his status as an
employee as if his employment had not been ter
minated" should be deleted from paragraph (c) of
the judgment of the Trial Division and that, sub
ject thereto, the appeal should be dismissed with
costs.
12 As I read the Vine case supra, on which the respondent
relied in this connection, the declaration there was as to the
validity of the dismissal and not as to the subsequent status of
the person dismissed. In that case, it is to be noted, the
declaration was accompanied by a judgment for substantive
relief. See also Wright v. The Queen [1975] F.C. 506, where
substantive relief was granted in a case not unlike the present
one.
ANNEX
Quotation from Wright v. Public Service Staff
Relations Board [1973] F.C. 765, at pages 775 et
seq.
Apart from retirement on superannuation, the statutory law
governing the Public Service as changed by the 1966-67 legisla
tion would seem to envisage various means by which a person
may become separated from employment in the Public Service.
The following are expressly dealt with:
1. Resignation
See section 26 of the Public Service Employment Act which
reads as follows:
26. An employee may resign from the Public Service by
giving to the deputy head notice in writing of his intention to
resign and the employee ceases to be an employee on the day
as of which the deputy head accepts in writing his
resignation.
2. Rejection
See section 28 of the Public Service Employment Act which
reads as follows:
28. (1) An employee shall be considered to be on proba
tion from the date of his appointment until the end of such
period as the Commission may establish for any employee or
class of employees.
(2) Where an appointment is made from within the Public
Service, the deputy head may, if he considers it appropriate
in any case, reduce or waive the probationary period.
(3) The deputy head may, at any time during the proba
tionary period, give notice to the employee and to the Com
mission that he intends to reject the employee for cause at
the end of such notice period as the Commission may estab
lish for any employee or class of employees and, unless the
Commission appoints the employee to another position in the
Public Service before the end of the notice period applicable
in the case of the employee, he ceases to be an employee at
the end of that period.
(4) Where a deputy head gives notice that he intends to
reject an employee for cause pursuant to subsection (3) he
shall furnish to the Commission his reasons therefor.
(5) Notwithstanding anything in this Act, a person who
ceases to be an employee pursuant to subsection (3)
(a) shall, if the appointment held by him was made from
within the Public Service, and
(b) may, in any other case,
be placed by the Commission on such eligible list and in such
place thereon as in the opinion of the Commission is com
mensurate with his qualifications.
3. Expiration of term employment
See section 25 of the Public Service Employment Act, which
reads as follows:
25. An employee who is appointed for a specified period
ceases to be an employee at the expiration of that period.
4. Abandonment
See section 27 of the Public Service Employment Act, which
reads as follows:
27. An employee who is absent from duty for a period of
one week or more, otherwise than for reasons over which, in
the opinion of the deputy head, the employee has no control
or otherwise than as authorized or provided for by or under
the authority of an Act of Parliament, may by an appropriate
instrument in writing to the Commission be declared by the
deputy head to have abandoned the position he occupied, and
thereupon the employee ceases to be an employee.
5. Lay-off'
See section 29 of the Public Service Employment Act, which
reads as follows:
29. (1) Where the services of an employee are no longer
required because of lack of work or because of the discon
tinuance of a function, the deputy head, in accordance with
regulations of the Commission, may lay off the employee.
(2) An employee ceases to be an employee when he is laid
off pursuant to subsection (1).
(3) Notwithstanding anything in this Act, the Commis
sion shall, within such period and in such order as it may
determine, consider a lay-off for appointment, without com
petition and, subject to sections 30 and 37, in priority to all
other persons, to any position in the Public Service for which
in the opinion of the Commission he is qualified.
6. Discharge or Release
There are three possible classes of discharge or release,
namely,
(a) Release for incompetency or incapacity
See section 31 of the Public Service Employment Act,
which reads as follows:
31. (1) Where an 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 recom
mendation 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 repre
sentatives, 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 recom
mendation 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.
(b) Discharge as a penalty for breach of discipline or
misconduct
See section 7(1)(/) of the Financial Administration Act:
7. (1) Subject to the provisions of any enactment
respecting the powers and functions of a separate employer
but notwithstanding 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 limit
ing the generality of sections 5 and 6,
(f) establish standards of discipline in the public service
and prescribe the financial and other penalties, includ
ing suspension and discharge, that may be applied for
breaches of discipline or misconduct, and the circum
stances and manner in which and the author
ity by which or whom those penalties may be applied or
may be varied or rescinded in whole or in part;
(c) Others
See section 24 of the Public Service Employment Act,
which reads as follows:
24. The tenure of office of an employee is during the
pleasure of Her Majesty, subject to this and any other Act
and the regulations thereunder and, unless some other
period of employment is specified, for an indeterminate
period.
"During the pleasure of Her Majesty" is the traditional
language to describe employment by the Crown that is
subject to termination without notice and without cause.
* * *
URIE J. concurred.
* * *
KERR D.J. concurred.
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.