T-3159-75
Albin Achorner (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Walsh J.—Montreal, October 19
and 20; Ottawa, October 31, 1978.
Crown — Labour relations — Contract of employment —
Wrongful dismissal — Plaintiff absent from work for pro
longed period, due to harassment from other employees, and
while seeking assurances of safety from employer — Position
declared abandoned — Grievance procedure of Public Service
Staff Relations Act not followed — Action for cancellation of
any contract between plaintiff and defendant and for damages
— Whether or not plaintiff barred from Court proceedings
because grievance procedure not followed — Whether or not,
having reached the decision that abandonment provision of
Public Service Employment Act improperly applied, the Court
has the right to intervene — Public Service Employment Act,
R.S.C. 1970, c. P-32, s. 27 — Quebec Civil Code, articles 2258
and 2261.
This action arises out of plaintiff's allegations of illegal
dismissal from the Post Office. Plaintiff claims that it was
impossible for him to report for duty because of illegal acts by
defendant's servants. He contends that his release for "aban-
donment of his position" was false, that his dismissal was
illegal, and that he had always been ready and willing to work.
Rather than avail himself of the grievance procedures in the
Public Service Staff Relations Act because of the futility of
such action in the circumstances, plaintiff sought assistance
through other channels. In this action, plaintiff seeks the
cancellation of any contract that might exist between himself
and the Post Office, and damages. The legal issues include
whether the fact that plaintiff did not avail himself of grievance
procedures has the effect of barring the Court proceedings, and
whether, having reached the decision that section 27 of the
Public Service Employment Act was improperly used so as to
conclude abandonment of employment by the plaintiff, this
Court has the right to intervene.
Held, the action is allowed. Plaintiff, especially as the griev
ance procedure was not in fact open to him, would be left
without any recourse whatsoever unless this Court can inter
vene and by declaratory order or otherwise set aside the
decision. It was not the intention of the statute to leave an
employee without any redress in the event that section 27 of the
Public Service Employment Act is improperly applied. It is not
a question of review of an administrative decision made on the
basis of judgment by the party making the decision as to the
employee's competence or incompetence, but rather a finding
which appears to have been based on two entirely erroneous
concepts: (a) that plaintiff abandoned his position when his
conduct indicated that he had not, and (b) that plaintiff
absented himself otherwise than for reasons over which he had
no control, when in fact he had no control over the conditions
that led him to absent himself. As this decision cannot be
sustained, the subsequent decision is to find that plaintiff never
having abandoned his employment must still be considered to
be in such employment. It would have been proper for plaintiff
not to have sought other employment which would have ren
dered him unavailable to resume work with the Post Office as
long as he continued to seek reinstatement. Once plaintiff
realized that there was little chance of his resuming work at the
Post Office—as he must have done on receipt of the second
letter from the Post Office—it was incumbent on plaintiff to
mitigate his damages by seeking other employment.
Re Ahmad and Appeal Board Established by the Public
Service Commission (1975) 51 D.L.R. (3d) 470, distin
guished. Emms v. The Queen [1977] 1 F.C. 101, distin
guished. Wright v. The Queen [1975] F.C. 506,
considered.
ACTION.
COUNSEL:
C. E. Schwisberg, Q.C. for plaintiff.
H. A. Newman for defendant.
SOLICITORS:
Schwisberg, Benson & MacKay, Montreal,
for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
WALSH J.: This matter concerns a claim for
damages by plaintiff arising out of what he alleges
was his illegal dismissal from the Postal Service of
Canada by whom he had been regularly employed
from 1961 until May 27, 1972. The original state
ment of claim was lengthy and argumentative and
it was difficult to decide the exact basis of the
claim. It was met by a motion for preliminary
determination of a question of law on the issue of
whether or not it was barred by prescription. This
motion was dismissed but the dismissal was
appealed by the Crown. The appeal judgment,
[[1977] 1 F.C. 641], in which the reasons were
delivered by Chief Justice Jackett contains an
excellent summary of the statement of claim which
might conveniently be quoted here. It read [at
pages 643-645]:
The allegations in the statement of claim, which is verbose,
may be summarized for present purposes, in so far as I can
appreciate its effect, as follows:
1. The respondent started to work as an employee in the Post
Office Department in 1961.
2. In 1965, there was an illegal strike in that department in
which the respondent refused to participate, and, as a result,
"he aroused furious enmity of his co-workers", and many
acts of harassment occurred against him "by co-workers".
3. Beginning in 1971, the respondent was, at times, not able
to report for duty because of fear for his safety by reason of
harassment by co-workers including one of his supervisors;
and, on May 29, 1972, he informed one of his superiors that
it was not possible for him to report for work because of "real
fear for his safety" and asked to be advised "of the date on
which, in his supervisor's opinion, he could resume work".
4. On August 15, 1972, the respondent was notified that he
was being "released" under section 27 of the Public Service
Employment Act, which 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 posi
tion he occupied, and thereupon the employee ceases to be
an employee.
because of "abandonment of his position" which, the
respondent alleges, is "completely false in the circumstances,
since he had never abandoned his position".
5. The respondent alleges that "as a matter of fact" he "was
legally never really dismissed, at all, and he had at all times
been ready, willing and wishing for work, from May 27
onwards, and merely was seeking assurance from his supervi
sors that he would be protected from the totally illegal
harassments of the supervisor that made him fear for his very
life ...".
6. On November 25, 1974, the respondent made a demand
on the appellant
(a) to re-instate him in his original position, and
(b) to pay him "all loss of salary up to January 1, 1974, to
wit $20,300", and pointed out that he estimated damages
suffered, in addition to loss of salary, at $126,000. (In
addition, he now estimates damages at $104,000 in lieu of
pension, making a total of $250,000.)
The statement of claim concludes with claims by the
respondent for
(a) "cancellation of any contract between himself and the
Canada Post Office ... for all future legal purposes," and
(b) judgment for $250,000 plus interest.
As I read it, what this statement of claim comes to is this:
by reason of the illegal acts of third persons (who are
servants of the appellant apparently performing such illegal
acts outside the scope of their employment as such servants),
the respondent, who may or may not have been a servant of
the appellant during all or part of the period in question, has
not performed the duties of a position that he previously had
as an employee of the appellant, nor has he tendered
performance thereof, since May, 1972, and, on the basis of
the fact that the appellant has not prevented such illegal acts,
he is claiming cancellation of a contract that the appellant is
not asserting against him, salary for services that he neither
performed nor tendered and damages for loss of employment.
At page 646 the learned Chief Justice states:
When considering the question whether it is "expedient" to
interrupt the ordinary procedures for the conduct of an action
by setting down the question of "prescription" for preliminary
decision, the first thing that strikes me is that a reading of the
statement of claim (which the appellant has chosen as the
subject matter for the decision of the single question of law
proposed) leaves me in substantial doubt as to what the
respondent's cause of action, if any, is; and I am conscious of
the fact that, if the matter is otherwise left to run its course, a
cause of action may ultimately emerge that is not apparent
from a mere reading of the statement of claim and that may be
reflected in an amended statement of claim. That being so, it
does not seem to me that it is "expedient" to set down the
proposed question of law at this stage.
This was followed by an amended declaration
and statement of claim equally lengthy in which
plaintiff concludes:
WHEREFORE Plaintiff prays for the cancellation of any possi
ble contract that may have existed between himself and the
Canada Post Office, whether verbal or written, for all future
legal purposes, and asks that Judgment be pronounced against
the Defendant in favour of the Plaintiff in and for the said sum
of $362,000.00, together with interest from the date of the
signification of these presents and all costs distrained to Plain
tiffs undersigned attorney.
Motion for striking out the said pleadings on the
ground that they do not disclose a reasonable
cause of action was brought and was dismissed in a
judgment dated February 9, 1977 [[1977] 2 F.C.
344].
Evidence submitted at trial was somewhat con
fused and unsatisfactory. The only witness was
plaintiff himself who instead of giving specific
details of the threats and harassments to which he
was subjected made generalized statements to the
effect that it was all in the police record, or that it
was all in correspondence between him and various
officials of the Post Office Department extending
right through to the Postmaster General, or that
they were well aware of what was going on as a
result of his interviews with them. When pressed to
produce some of the correspondence he opened a
bulky file which his counsel said he had seen for
the first time, and after an adjournment of the
Court to give counsel an opportunity to discuss this
correspondence with him certain copies of more or
less pertinent correspondence were produced, with
consent of counsel for defendant, which should
more properly have been introduced in examina
tion in chief. No proper evidence was submitted as
to how his claim of $362,000 (increased from
$250,000 in his original statement of claim) was
calculated, no information being given as to his
rate of pay at the time of termination of his
employment, subsequent escalations which would
have been received had he been retained in such
employment, the present worth of his loss of future
pension right, or any other mathematical computa
tions, the only indication of how the calculation
was made (and this was not supported by evidence
at trial) being found in paragraph 23 of the
amended statement of claim which refers to a
letter sent to the Honourable André Ouellet then
Postmaster General on November 25, 1974
... indicating that the Plaintiff would not resign, and calling
upon him to reinstate the Plaintiff in his original position with
safety and to pay him all loss of salary up to that date, namely
January 1, 1974, to wit, $20,300.00, pointing out at the same
time that since the Plaintiff was only forty-nine at the time and
his retirement age would only have been at age 65, with
continual increase in seniority and the amount of his pension, at
that time estimated that the damages suffered in addition to
the loss of salary were $126,000.00; that now, at the point when
this action was first instituted they would amount to consider
ably more, namely, a total of $250,000.00; but as a matter of
fact, as of this date, Plaintiff is of 53 years of age, and the loss
in salary alone amounts to approximately $70,000.00, and is
entitled, and has a right to collect his salary up to age 65, date
of retirement, and in view of the fact that salaries are constant
ly growing with the cost of living, and would average at least
$16,000.00 per annum, which for the twelve years up to age 65,
would be $192,000.00, making a total loss of earnings alone of
$262,000.00; whereafter he would have been entitled to his
pension, which would have a value of $200,000.00 by way of
payments in instalments, therefore, of a value of $100,000.00
cash, particularly, as Plaintiff is a very healthy person with
longevity in the family, his father having passed away at 75,
and his mother still being alive at 77.
No corroborating witnesses were called, which is
of course understandable, as one would hardly
expect that any of his fellow workers against
whose conduct he was complaining, would testify
on his behalf. The only corroboration therefore is
such as may be found in replies to his voluminous
correspondence with various officials in the Post
Office Department to the extent that these replies
acknowledged some of the facts leading to his
dismissal. On the other hand as no witnesses were
called for the defence defendant is forced to rely
on plaintiff's evidence, including of course his
cross-examination, correspondence produced as
exhibits, and the law, and to the extent that one
uncontradicted witness as to a question of fact is
sufficient plaintiff's evidence must be accepted as
to the situation in the Post Office which eventually
led to his dismissal.
From his evidence and the correspondence sub
mitted it is apparent that the plaintiff Achorner is
very independent minded, does not approve of
unions generally and certainly of any illegal
actions the Post Office union or its members might
take, and as a consequence was not popular with
his fellow workers who frequently harassed and
threatened him. He felt he was not being properly
dealt with by his immediate superiors in the Post
Office and frequently went over their heads to a
higher level to complain and seek redress. There is
nothing to indicate however that he was not a
diligent and conscientious worker and certainly he
cannot be blamed for wanting to perform his work
properly and not be a party to any actions which
he judged illegal. When the Post Office workers
went on an illegal strike in 1965 he refused to
participate in it, crossing the picket lines. Thereaf
ter he received constant verbal insults and threats
and was told that he had better watch out for
himself when working on the midnight shift at the
Main Post Office in Montreal. On the night of
June 4-5, 1966 when he left work at about 8:40
a.m. a full shift of about 200 workers was lined up
and two held his arms while others punched him.
He suffered a broken nose, chin injuries, was
bruised all over and had to spend a week in
hospital. He stated that the police laid charges
arising out of the assault, but gave no evidence as
to the outcome. Subsequently however he saw the
people who had assaulted him still working in the
Post Office. As a result of this on June 5, 1966
(although he stated at trial that he spent a week in
hospital) he wrote a letter to A. Portelance, Super
intendent of the Staff Service Division at the Main
Post Office complaining about the constant insults
culminating in a bodily attack during the preced
ing nine months merely because he was non-union
ized, and asking what steps would be taken to
enable him to fulfill his duties free from discrimi
nation and intimidation. As a result the Postal
Director of Montreal, Mr. Cormier arranged for a
transfer of plaintiff to the registration unit at the
Main Post Office, a smaller unit, where he worked
for five years on a shift from midnight to 8:30 a.m.
without undue harassment. On January 29, 1971,
he was advised that starting February 7, 1971 his
hours would start at 10:00 p.m. instead of at
midnight, the modification being in accordance
with section 5 of an agreement between the Trea
sury Board and the Council of Postal Unions. He
took vigorous exception to this as this would mean
that he would be leaving work at 6:30 a.m. instead
of 8:30 a.m., which was the time a large number of
other workers leave the Main Post Office, includ
ing those who were continually harassing him and
since, especially in winter, it would still be dark at
this time of the day he feared for his safety. He
went to see Mr. Cormier but apparently was
unable at first to get him to change his decision.
Mr. Cormier wrote him on April 13 stating that
the decision had been reviewed and considered to
be justifiable, that when his hours of work were
established in 1966 it was as a result of the
situation existing at that time but that in Mr.
Cormier's view this was now something of the past
and not likely to be repeated. Refusing to accept
this reassurance, on April 19, 1971 he wrote to the
Honourable Jean-Pierre Côté then Postmaster
General explaining his position and fears. In due
course he was restored to the shift he desired but
lost three months pay during the dispute.
Matters deteriorated rapidly in the spring of
1972. Fellow employees made it clear that he was
not wanted, would not sit with him at lunch and
two or three would always call him abusive or
obscene names. He was allegedly told that he
should watch out for his life, but he did not name
the person who made this threat, nor apparently
make any specific complaint to his superiors about
it.
On May 12, 1972, his immediate supervisor, R.
Dagenais who was not a management employee
but a union member allegedly lectured him irately
and insulted him, in the process trying to intimi
date him not to report to work on May 13, and
when he did attempt to return for work on that
day he found the entrance blocked by people who
resembled those who had attacked him in 1966.
Threats were made but he nevertheless went to
work.
On May 26 plaintiff was ordered by Mr. Dage-
nais to close the mail at 3:00 a.m. for a flight not
due to be closed until 5:35 with the result that part
of the mail for Val d'Or and Rouyn was left
behind, and on the same day Satellites (Longueuil,
Pointe-Claire-Dorval, Roxborough, Lachine, La-
val-des -Rapides, Ste. Anne-de-Bellevue) due for
closing at 4:30 a.m. was ordered to be closed at
2:00 a.m. leaving most of the mail for these desti
nations behind. This was mail for Friday deliveries
and it must be remembered that plaintiff was
working in the registration section where closing
the mail at scheduled times was most important.
He therefore considered this an instance of further
harassment by Mr. Dagenais, and while he obeyed
the orders, he did not wish to be blamed for what
he considered to be illegal 'actions. When he left
work at 8:30 in the morning he was questioned by
10 members of the incoming shift as to how he had
made out the night before, which made him con
clude that he had been set up for major harass
ment the night before, or perhaps worse and that
this was known to the union members. Accordingly
on May 27, 1972, he wrote a letter to Mr. L.
St.-Cyr, Superintendent of the Forward Mail Divi
sion in which he refers to previous complaints he
had made about Mr. Dagenais in a letter dated
January 6, 1972. In his letter he refers to state
ments made by Mr. Dagenais that he intends to
continue his harassments until "he gets his way".
He concludes by asking just what he has to do in
order to ensure that he may work in peace for 8
hours in accordance with working schedules and
regulations and without ever-recurring harass-
ments. He explains that this is the reason why he
had not reported for work the preceding night and
requests advice as to the date on which he may
resume work. On May 29, 1972, he sent L.
Durocher, Director of Montreal Metropolitan Dis-
trict a copy, of the letter he had written to Mr.
St.-Cyr. In this letter he states:
I am doing this in the hope that action will be taken in a matter
which has been granted too much indulgence on the part of 715
Peel St. Failing this I shall continue to press the point of issue
with the government in Ottawa, or present the facts as I have
accumulated them in my correspondence with your office to a
parliamentary panel, or if this proves necessary take legal
action. The news media might conceivably be very interested in
several aspects of this case.
Above paragraph is not taken to be a threat, it is merely
indicative as to what length I am prepared to go.
It is evident that the tone of this letter, although
perhaps written while the plaintiff was in a state of
desperation, was hardly such as would endear him
to his employers.
Oddly enough following this letter plaintiff did
nothing further for two and one-half months while
awaiting a reply. Perhaps he over-estimated his
importance to the Post Office although he was
only one of many thousand employees. In any
event he felt and still feels that the next move was
up to them. When closely questioned as to what
action he expected them to take he said that was
up to them. He conceded that there was no way in
which they could protect him from threats or
harassment by other employees, but apparently he
did not suggest nor seek a transfer to another
office, perhaps a small branch office where
although there would be unionized employees he
might have less to fear. He indicated that he was
quite happy where he had been working in the
registration division on the 12:00 to 8:30 a.m. shift,
but this does not seem to be consistent with his
complaints about his immediate supervisor, Mr.
Dagenais, who he felt was out to get him. Perhaps
he felt that something could be done to control
what he considered to be Mr. Dagenais' illegal
actions and in particular harassment of him.
Oddly enough also, although he had allegedly been
threatened by fellow workers on the night of May
12 or 13 his letter primarily complained of harass
ment by Mr. Dagenais principally by ordering him
to close certain mails before they should be. In any
event he appears to have been confused at the time
as to what he really wanted, save for the unattain
able goal of being able to continue doing his work
in peace. He left the entire decision as to what
action was to be taken to his employer without
making any request for a transfer.
The action eventually taken came as a shock to
him on August 15, 1972, when he was sent a
registered letter by H. Vallée, Acting Director,
Montreal-Metropolitan District, who had replaced
Mr. Durocher, reading as follows:
By authority delegated to me by the Deputy Minister, under
Section 6(5) of the Public Service Employment Act, I hereby
give you notice of my decision to recommend, as of today, that
you be released under Section 27 of the Public Service Employ
ment Act because of abandonment of position.
This decision has been reached because you are absent without
leave since May 27, 1972.
The use of the words "decision to recommend" is
perhaps unfortunate since section 27 of the Act
supra states that an employee "may by an appro
priate 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". A copy of the
letter to Mr. Achorner was sent the same day to
the Director of the Quebec Region of the Public
Service Commission. By the wording of the statute
the Commission was not required to take any
further action on the decision.
On receipt of this letter one would have thought
that Mr. Achorner would have taken immediate
steps to attempt to have this rescinded. Instead it
was not until September 21, 1972, that he wrote
Mr. Durocher, Regional General Director, refer
ring to his letter of May 29, 1972 (supra), to
which he stated he had not yet had a reply. In this
letter he states:
Before I take my case to that level of authority to which you
and your officers are subordinate, I would like to inquire
whether the contents of above-mentioned letters have ever been
communicated to you, and if so whether any instructions on
your part have been issued in response to the formal complaint
which I lodged with Mr. St.-Cyr's office.
You will appreciate the importance of a reply on your part to
this letter in view of the fact that since May 29, 1972 the
administration in 715 Peel Street has not deemed it necessary
to supply an answer to the above-mentioned letters nor has it
made to this date any attempts to contact me in order to work
out a solution to the contentious issues which I raised in my
letter to Mr. St.-Cyr.
Trusting to hear from you at your earliest convenience.
Mr. Durocher on receipt of this letter apparently
put a memo on it, addressed to Mr. St.-Cyr, asking
for a report.
On October 12 he wrote Mr. Achorner stating
that he had made a complete study of the case,
being informed that he is considered as having
abandoned his position because of failing to report
for a period exceeding a week in accordance with
section 27 of the Act and concluding that steps
have been taken to provide him with reimburse
ment of his pension plan contributions and other
benefits.
On October 22 Mr. Achorner wrote Mr.
Durocher a letter in which he argues that it is poor
logic to recommend his release for having aban
doned his employment, and that he will not allow
the gross negligence of any officer at the Main
Post Office in Montreal by not answering legiti
mate complaints for months to be construed as an
abandonment of employment by him. He indicates
that he refuses to accept any retirement arrange
ments.
In reply to this Mr. Durocher again wrote Mr.
Achorner saying that he had satisfied himself that
the subordinate level of management over which
he had responsibility had in fact discharged their
obligations well within the parameters of their
responsibilities, and pointing out the consequences
of failing to exercise his options with respect to his
pension pursuant to the Public Service Superan-
nuation Act, R.S.C. 1970, c. P-36. Apparently
between May 27 and August 15, 1972, Mr.
Achorner had attempted to secure redress through
other channels however. On October 30, 1972, he
writes to Miss Thériault, Special Assistant of the
Postmaster General, the Honourable Jean-Pierre
Côté referring to the interview which he had with
her on June 9, 1972, advising her that no progress
has been made since that date. On December 16,
1972, he again writes Miss Thériault stating that
he had received no direct response to his letter of
May 27 (and this despite all the correspondence
with Mr. Durocher). He refers to advice offered
him by Mr. Aurèle Ouimet in a letter dated April
25, 1972, suggesting he proceed through the bar
gaining unit which represents him stating that he
will never permit any union to represent him in
any matter nor will he agree to being lumped
together with the union because of the existence of
a collective agreement which does not specifically
stipulate that an employee of the Post Office must
be a member of the union. He concludes that it is
within his constitutional rights as a free citizen of
the country to conduct himself in such a way that
his conscience shall not be compromised by the
actions of an organization which he considers
detrimental to society. He concludes that he is
willing and prepared to return to work once the
modalities of working conditions as outlined in the
final paragraph of his letter to Mr. St.-Cyr have
been positively reaffirmed.
On January 9, 1973, he again writes Mr.
Durocher pointing out that it is clear from his
letter to Mr. St.-Cyr of May 27, 1972, his letter to
Mr. Durocher of May 29, 1972, his interview with
the Special Assistant to the Minister on June 9,
1972, and his letter to Mr. Durocher on September
21, 1972, that he cannot be considered as having
abandoned his position or he would not be going to
all this work in order to retain it. He concludes:
Even at the risk of being repetitious I once again—with due
respect—insist on bringing to your attention that I have never
to this date received a direct answer to my letters in which I
have sought to have contentious issues settled enabling me to
return to work. I have patiently borne embarrassments and
humiliations but finally one of my supervisors extended the
limits within which I can work. The mere fact that certain
administrative officers—for reasons they know better than I
do—are extremely hesitant to face up to the situation, has
brought about an enforced absence which is entirely their fault!
I shall not allow anyone to arbitrarily convert this enforced
absence into an "abandonment of position" on my part.
Mr. Achorner's efforts to secure redress con
tinued at the top level. He saw Mr. Ian Watson,
M.P. who wrote a letter dated April 11, 1974 to
the Honourable André Ouellet then Postmaster
General citing all the facts as disclosed to him by
Mr. Achorner. The Minister promised an investi
gation. On October 9, 1974 Mr. Watson sent a
copy of this letter to the Honourable Bryce Mack-
asey the new Postmaster General pointing out that
he understood that no action had been taken due
to the intervening election. This also led to a
promise of an investigation. While most of this
correspondence was following his release, whereas
the most relevant period is that immediately prior
to his withdrawal of his service on May 27, 1972,
allegedly only until he could be assured of working
in safety, and the period immediately following his
letter of May 27, 1972 when the postal authorities
were presumably considering the matter up to
August 15, 1972 when he was advised that he was
considered to have abandoned his position, I have
nevertheless included reference to this correspond
ence as indicating without a doubt that Mr.
Achorner himself never considered that he had
abandoned his position, and in fact at all times
wished to return to work, but always subject to the
condition, which the authorities apparently felt
that they could not fulfill, that he would be guar
anteed against further harassment. While there
was no direct evidence as to whether a further
deliberate slow-down in anticipation of work stop
page was taking place in the month of May 1972,
so as to cause a deterioration in conditions which
he had found tolerable in the registration division
on the shift on which he worked for nearly six
years previously, there is at least the suggestion
that the improper orders to close the outgoing air
mails early in that division on the night of May 26
(and it must be assumed that these were improper
since there was no evidence produced by the
defence attempting to explain or justify them),
may not have been intended by Mr. Dagenais so as
to harass him, as if he refused to obey the orders
he might then possibly have been disciplined or
dismissed for refusing to obey directions. They
may also have been part of a further attempt by
the union to inconvenience the public by deliberate
slow-downs in processing the mail. There is also a
strong possibility that, faced with an unruly and
militant labour force in the union, for which the
Montreal Post Office was notorious at the time,
the Montreal postal authorities may have decided
to adopt the line of least resistance and use
Achorner's absence from work as an excuse to
dispense with his services rather than aggravate
the more militant union members and risk further
confrontations by retaining someone, whom the
union looked on as a "scab", as part of the labour
force. The fact that Achorner's unbending and
abrasive personality and frequent complaints to
higher levels of management may also have been
an annoyance to management itself may have
contributed to this decision which the authorities
took over two months from May 27 to August 15,
1972 to reach. If, in fact Achorner was released
primarily to placate the union, this would be
unjustifiable, especially for an employee with 11
years unblemished service.
I am not alone in reaching this conclusion on the
facts before me as appears from the letter of Ian
Watson, M.P. dated April 11, 1974 to the Honour
able André Ouellet in which he states on the
fourth page:
What has happened here is purely and simply a case of the
Post Office Administration in Montreal deciding that for the
sake of easier labour relations that it would sacrifice the rights
of one individual, namely Mr. Albin Achorner. Mr. Achorner
did his job as a model employee, never digressing from the rules
and regulations at any time and this apparently is what has
made his presence doubly intolerable to some of his fellow
postal workers who have long memories and who never forgave
the fact that he refused to participate in the 1965 illegal strike.
I ask you how could Mr. Achorner be expected to return to
work after May 27th after his previous experiences and in the
light of what happened on the shift of midnight to 8:30 a.m. on
May 26th without some assurances for his safety and for a
stopping of the harassment outlined in his letter of May 27th?
When he received no acknowledgement of neither the May
27th, 1972 or May 29th, 1972 letters was he supposed to come
to work? Put yourself in his position. He was fearful for his life
and for good reason.
Certainly no attempt was made to communicate
with him after his letter of May 27, 1972 nor was
he offered a transfer to another branch as could
readily have been done, and he had no warning
that he would be dismissed for having allegedly
abandoned his position by the use in his case of
section 27 of the Public Service Employment Act,
R.S.C. 1970, c. P-32. It is perfectly clear that
plaintiff had no intention whatsoever of abandon
ing his employment but merely wanted protection
in carrying it out. Section 27 (supra) deals with
absence from duty for a week or more followed by
the key words "otherwise than for reasons over
which, in the opinion of the deputy head, the
employee has no control". While an employee who
is not ill, as Achorner admits he was not, does of
course have control over whether he presents him
self for work or not, his reasons in this case for not
doing so seem to arise from a situation over which
he had no control and as a consequence of threats
of violence by members of the union and harass
ment by his immediate supervisor, a union man,
giving him improper and irregular orders. It
appears to me that the situation bears some resem
blance to the jurisprudence established in unem
ployment insurance cases and labour law generally
to the effect that refusal to cross a picket line
established by members of another union cannot
be justified if the person in question has refrained
from doing so, although no violence has been
threatened, out of sympathy for the members of
the union who established the picket line, or
because he has been using this as an excuse to
avoid presenting himself for work, but on the other
hand where there is a real and present danger to
him or members of his family and he has suffered
threats which he has reason to believe, he cannot
be expected to cross the picket line, whether legal
or illegal and will not be penalized for failing to do
so. Each case depends on its own facts and there is
frequently a narrow dividing line between the act
of voluntarily failing to present oneself for work,
and failure to do so because of threats and danger
which would result. In the present case while
plaintiff did not suffer physical violence on the
night of May 12-13, 1972, nor on his last night of
work on May 26 he had suffered extreme physical
violence on a previous occasion and was at the
time being subjected to an escalating series of
threats and harassment, until he finally came to
the breaking point and considered, not without
some justification, that he could not continue
under those conditions. I find as a question of fact
therefore that his failure to present himself to
work on May 27, 1972 and thereafter was the
result of a situation over which he had no control,
and that he cannot be considered as having aban
doned his employment, and that section 27 was
therefore improperly applied in his case.
It is the legal issues raised in this case which
give more difficulty however. While the question
of prescription was not formally abandoned by
defendant, little reliance is now placed on it. It is
evident that the action is not one for damages
resulting from an offence committed against him
subject to a two-year prescription by article 2261
of the Quebec Civil Code, but rather a claim for
rescission of contract for violence and fear subject
to a ten-year prescription by article 2258 or per
haps for hire of labour covered by a five-year
prescription by virtue of article 2260. A second
question arises as to whether the existence of
grievance procedures in the Public Service Staff
Relations Act' of which plaintiff did not avail
himself has the effect of barring the present Court
proceedings. This argument was previously dealt
with by me in a judgment dated February 9, 1977,
[[1977] 2 F.C. 344], on defendant's motion to
strike out the statement of claim, wherein I stated
at pages 349-350:
Defendant contends that the application of section 27 implies
the application to plaintiff of the provisions of section 90 of the
Public Service Staff Relations Act and that the plaintiff, if he
was not satisfied should have presented a grievance rather than
communicating with various officials in the Post Office Depart
ment including the Postmaster General, with his member of
Parliament, and with others in his attempts to secure redress,
and that having failed to avail himself of this he is not entitled
to bring the present proceedings.
There would seem to be some doubt, however, as to whether
the grievance procedure was open to plaintiff in the present
circumstances. He was not being dismissed for any disciplinary
measure and in fact quite to the contrary he wished to be able
to carry on his work in accordance with the regulations and to
resist orders of his superiors to participate in illegal slow-downs
with a view to delaying the delivery of the mails. He asked his
supervisor to provide protection for him and said he could not
resume his work until he had some such assurance. Instead of
this, section 27 was applied in his case and he was held to have
abandoned his employment because, in the absence of such
assurances, he had not resumed his work. There was no ques
tion of his having been dismissed for disciplinary reasons which
would clearly give rise to grievance procedures. This question
was gone into in some detail by the Court of Appeal in the case
of Wright v. Public Service Staff Relations Board ([1973] F.C.
765). In that case Chief Justice Jackett carefully analyzed the
provisions of the sections of the Public Service Staff Relations
Act relating to grievances and of the Public Service Employ
ment Act. While in that case he was dealing with the right to
final adjudication by an adjudicator and not with the right to
present a grievance, he listed the various sections of the Public
Service Employment Act by virtue of which a person may
become separated from employment in the Public Service,
including among them of course section 27 which was applied
in the present case. At page 778 he states:
It is worthy of note that each of these ways of terminating
employment may give rise to possible disputes as to whether
the necessary things have in fact been done and may give rise
to possible disputes as to the effect of the law. It is only,
however, in the case of "disciplinary action resulting in
discharge" that the appropriate method of determining the
dispute is reference to adjudication.
While I am of the view that it might have been more prudent
for plaintiff to have sought redress by grievance procedure, it is
at least arguable that it might have been held that such
' R.S.C. 1970, c. P-35.
procedure was not available to him in connection with a
decision made under section 27 of the Act that he had aban
doned his employment, which contention he strongly denies. I
can find nothing in either Act nor have I been referred to any
jurisprudence with the possible exception of the Rao case 2
(supra) to the effect that recourse to the Courts is denied to a
party who has alternative procedure by way of grievance open
to him.
None of the evidence made before me at trial
gives me any reason to alter this view and in fact
defendant's evidence now indicates quite clearly
why, whether he had a right to invoke grievance
procedure or not it would have been futile for him
to have done so since the very persons who would
normally assist him in presentation of his griev
ance, namely the officers of the union, would be
strongly opposed to him and would strongly
endorse the decision of the Post Office authorities
to avail themselves of section 27 of the Public
Service Employment Act so as to get rid of him.
Another legal argument not relied on too strong
ly arises from section 24 of the Public Service
Employment Act to the effect that the tenure of
office of an employee is during the pleasure of Her
Majesty and unless some other period of employ
ment is specified is for an indeterminate period.
This section contains a clause providing however
"subject to this and any other Act and the regula
tions thereunder" which would of course include
the provisions of section 27 and is not, I believe,
authority for dismissal of an employee without just
cause. This argument was also dealt with in my
judgment of February 9, 1977 (supra) where I
stated at page 348 in reference to section 24:
I do not believe that this section can properly be invoked
however since it was not by virtue of this section of the Act that
his employment was terminated. No Order in Council was
passed providing for his dismissal as in the case of Hopson v.
The Queen ([1966] Ex.C.R. 608).
The case of Zamulinski v. The Queen ([1956-60] Ex.C.R.
175), while holding that no right of damages accrued to an
employee dismissed since he held his employment only at the
pleasure of the Crown, nevertheless directed attention to a
section of the Regulations giving him a right to present his case
to a senior officer of the department nominated by a deputy
head and be heard before he is dismissed, and since he had been
deprived of this right he was awarded nominal damages of
$500.
A similar finding was made by my brother Cattanach J. in
the case of Peck v. The Queen ([1964] Ex.C.R. 966), but in
that case no damages were allowed because the plaintiff had
2 [1937] A.C. 248.
been given an adequate opportunity to present her side of the
case prior to dismissal.
In the case of Rao v. Secretary of State for India ([1937]
A.C.248) a somewhat similar section to section 24 provided
that the employee held office during Her Majesty's pleasure.
The headnote of the report states:
The terms of s. 96B assure that the tenure of office, though
at pleasure, will not be subject to capricious or arbitrary
action, but will be regulated by the rules, which are manifold
in number, most minute in particularity and all capable of
change, but there was no right in the appellant, enforceable
by action, to hold his office in accordance with those rules,
and he could therefore be dismissed notwithstanding the
failure to observe the procedure prescribed by them.
In the present case it is not a question of the
procedure provided for by section 27 not having
been adopted, but it would appear that his dismis
sal may have been a matter of "capricious or
arbitrary action", when what appears to be the
real motivation for it is taken into account.
The serious legal question which remains to be
considered is whether, having reached the conclu
sion that on the facts section 27 of the Public
Service Employment Act was improperly used so
as to conclude that plaintiff had abandoned his
employment, this Court has the right to intervene.
The decision was an administrative one taken by
H. Vallée, the Acting Director of the Montreal
Metropolitan District by virtue of authority dele
gated to him by the Deputy Minister under section
6(5) of the Act. The wording of section 27 makes
it clear that all that is required is a declaration by
the Deputy Head that the employee has aban
doned the position he occupied, whereupon he
ceases to be an employee. While this information
must be conveyed in writing to the Commission, as
was done in this case, the Commission is not
required to take any action. Quite aside from the
fact that this appears to be an administrative
action which should not be reviewed by the Court
as it normally does not require any judicial or
quasi-judicial determination, it is certainly a deci
sion which is not subject to review by the Court of
Appeal under section 28 of the Federal Court Act,
in any event, not being a decision or order in the
course of proceedings before a federal board, com
mission or other tribunal. It would appear however
that, especially as I have already concluded that
grievance procedure was not open to plaintiff, he
would be left without any recourse whatsoever
unless this Court can intervene and by declaratory
order or otherwise set aside the said decision. I
cannot conclude that it was the intention of the
statute to leave an employee without any redress in
the event that section 27 is improperly applied.
This situation is quite different from cases such as
Re Ahmad and Appeal Board Established by the
Public Service Commission' in which the Court of
Appeal, dealing with a section 28 application, set
aside a decision of an Appeal Board established by
the Public Service Commission maintaining a dis
missal under section 31(1) of the Act by the
Deputy Head of the Department of an employee
he deemed to be incompetent, held that the Board
would not be justified in deciding that the Deputy
Head's recommendation should not be acted on
unless it had before it material that satisfied it as a
matter of fact that he was wrong in forming the
opinion that the person in question was incompe
tent. It was pointed out that this is a matter of
opinion and all that is required is that it must be
honestly formed based upon observation of persons
under whom the employee worked. In the present
case it is not a question of review of an administra
tive decision made on the basis of the judgment by
the party making the decision as to an employee's
competence or incompetence, but rather a finding
which appears to have been based on two entirely
erroneous conceptions:
(a) that Achorner had abandoned his employ
ment, when it was perfectly clear from his con
duct and correspondence that he was not aban
doning it but wished to resume it as soon as he
could be assured of doing so in safety, and
(b) that he had absented himself otherwise than
for reasons over which he had no control when it
was perfectly clear that in fact he did have no
control over the conditions which led him to
absent himself, although immediately advising
Mr. St.-Cyr of his reasons for doing so. 4
3 (1975) 51 D.L.R. (3d) 470.
4 The position would be entirely different if this section were
invoked to declare that an employee who had absented himself
from his employment for over a week as a result of an illegal
strike had in fact abandoned it, since in this case there would be
no discretion to exercise, the only facts being whether the strike
was illegal and whether the employee had absented himself for
over 7 days.
Having concluded therefore that this decision
cannot be sustained the consequent conclusion
would be to find that plaintiff, never having aban
doned his employment must be considered to still
be in such employment. However, the statement of
claim does not ask for reinstatement but rather for
cancellation of the contract of employment for all
future legal purposes. However, Achorner
although consistently maintaining his desire to
return to work (on condition) must surely have
realized at least by the time he received Mr.
Durocher's second letter of October 26, 1972, that
there was little or no chance of his resumption of
employment with the Post Office. While it was not
until the institution of proceedings on September
12, 1975 that he asked for the cancellation of the
employment contract it would be unreasonable to
hold that he could consider himself to still be in
the employ of the Post Office and at all times
ready and willing to resume work, if properly
protected, in the interval. I am struck by the fact
that he apparently made no attempt whatsoever to
obtain any other employment. It is well established
in law that in any claim for damages, whether for
breach of contract, tort, or otherwise a claimant
must do whatever is possible to minimize his dam
ages, and it is unreasonable that plaintiff had
made no attempt to do so by securing other
employment in the present case. While he stated
that the only job for which he was trained was for
work in the Post Office, and he did pass a civil
service examination to obtain such employment, I
cannot find this work is of such a skilled nature
that it would be unreasonable for him to have
undertaken any other type of work nor that it was
impossible for him in 1972 when unemployment
was not as prevalent as at present to have obtained
any employment of any nature whatsoever. He was
49 years of age at the time, and had been working
for slightly over 11 years for the Post Office.
Presumably prior to age 37 he must have had some
other forms of employment. No evidence whatso
ever was introduced of any job searches by him.
This may be strongly contrasted with the conduct
of John A. Emms in the case of Emms v. The
Queen 5 in which Mr. Justice Cattanach decided
that an employee had been improperly dismissed
under section 28(3) of the Public Service Employ
s [1977] 1 F.C. 101.
ment Act, and that the termination of his employ
ment was therefore null and void. At page 116 of
that judgment Cattanach J. commented:
Immediately upon his abortive dismissal on September 24,
1971, the plaintiff forthwith sought and obtained employment
under contract with the Department of Co-Operation and
Co-Operative Development of the Government of Saskatche-
wan. Exhibit P-I2 indicates that he began that engagement on
October 1, 1971, that is a period of seven days before he
accepted other employment (for which the plaintiff is to be
commended), but by the acceptance of which he precluded
himself from performing the duties of the office from which he
was not effectively dismissed.
In the present case it would have been q:lite proper
for plaintiff not to have sought other employment
which would have rendered him unavailable to
resume work with the Post Office, as long as he
continued to seek reinstatement, but as already
stated I do not think he could reasonably expect
this and continue to refrain from seeking other
employment after October 26, 1972.
In the case of Wright v. The Queen 6 Heald J.
had to consider the damages due an employee
improperly dismissed by application of section
28(3) of the Act. At page 521 he stated:
The plaintiff had a legal right to continue in his employment
from the time of the abortive dismissal 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. [Underlining is mine.]
In both of these cases the plaintiff sought or
obtained other employment which would have
minimized the amount of his claim. Plaintiff was
offered the refund of his pension benefits in the
present case or in the alternative benefits in the
form of a retirement annuity or a deferred annuity
at any time between age 50 and 60. Mr. Duro-
cher's letter of October 26, 1972 states that the
failure to exercise the option within one year will
be deemed to be a choice of a benefit in the form
of an annuity. The necessary documentation was
6 [1975] F.C. 506.
never signed by Mr. Achorner. Counsel for defend
ant stated that there is no dispute as to plaintiffs
right to the return of pension contributions or the
annuity. This will of course be in addition to
amounts allowed for loss of salary and damages.
I now turn to the question of damages. In the
Wright case, supra, Heald J. found that loss of
wages was an important element. He did com
ment, however, as has been stated that plaintiff
had made every possible effort to obtain other
employment, without success. In the event he
allowed $20,000, somewhat less than the wages
lost.
In the present case plaintiffs annual wages at
the time were $7,701.18 as appears from the forms
sent to him in connection with pension refund
which he refused to sign. He would in my view
have been entitled to wages for at least 6 months,
following which he should have sought other
employment, which he could have abandoned if he
had in 1974 been reinstated as a result of his
attempts to secure intervention at the ministerial
level. As he points out whatever sum he is awarded
on the basis of 1972 earnings would be worth
substantially less now due to the effects of infla
tion. While he will receive a pension contributions
refund or an equivalent annuity based on his con
tributions prior to his illegal dismissal, this will not
of course take into account future contributions
based on the hypothesis that he had remained in
the employ of the Post Office, nor the increased
entitlement which would have resulted from
increases in pay scales or in his classification.
On the other hand, he is to a substantial extent
the author of his own misfortune for not immedi
ately following up his letters of May 27 and 29,
1972, or requesting a transfer, instead of sitting
back and waiting for his employers to do some
thing, and for persistently failing to seek other
employment, and, to the extent that contributory
negligence can be taken into consideration this has
some bearing on the matter.
It is impossible to calculate his claim on any
actuarial basis, but, taking everything into con
sideration I conclude that $10,000 would be a just
award, in addition to his pension plan contribu
tions refund, or annuity in lieu therefor calculated
in accordance with the regulations now applicable
thereto, and interest from the date of institution of
proceedings on September 17, 1975.
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.