T-5247-82
Fred Ager (Plaintiff)
v.
The Queen (Defendant)
T-5248-82
Bernard Levesque (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Addy J.—Ottawa, October 11 and
December 1, 1983.
Public service — Judicial review — Preliminary determina
tion of points of law in action seeking declaration of entitle
ment to benefits under s. 12.13 of Public Service Superannua-
tion Act — Following involvement in labour dispute, air traffic
controllers in operational service reassigned to non-operation
al position — Actions of plaintiffs prior to reassignment
relevant to question whether ceased "otherwise than voluntari
ly to be employed" in operational service within meaning of s.
12.13 of Act — Issue estoppel not applicable in Federal Court
with respect to intermediate findings of Public Service Staff
Relations Board — Public Service Superannuation Act, R.S.C.
1970, c. P-36, ss. 12.11, 12.13 (as added by S.C. 1980-81-82-
83, c. 64, s. 3), 32 (as am. by R.S.C. 1970 (1st Supp.), c. 32, s.
2; S.C. 1974-75-76, c. 81, s. 21; S.C. 1976-77, c. 28, s. 35;
S.C. 1980-81-82-83, c. 64, s. 5), (1)(v.1) (as added idem, c. 64,
s. 5(4)) — Public Service Staff Relations Act, R.S.C. 1970, c.
P-35, s. 25 — Public Service Superannuation Regulations,
C.R.C., c. 1358, s. 52 (as added by SOR/81-866, s. 2) —
Federal Court Rules, C.R.C, c. 663, R. 474.
Estoppel — Issue estoppel — Whether applicable in court
of law to previous findings of administrative tribunal or other
quasi-judicial body — Issues of fact and mixed law and fact
determined by Public Service Staff Relations Board —
Whether binding on Federal Court — Distinction drawn be
tween issue estoppel and cause of action estoppel (res judicata)
— Reported cases cited by counsel not dealing with decisions
of administrative tribunals — Discussion of fundamental dis
tinctions between administrative hearings and trial in law
court — Board's decisions not final — Finding not binding on
tribunal itself not binding on court of law — In Federal Court
trial issue estoppel not applying re intermediate finding by
Board.
Following their involvement in a labour dispute, the plain
tiffs, air traffic controllers who were then in operational service,
were reassigned, under protest, to non-operational service. They
first filed a grievance to attack that decision and now seek a
declaration recognizing their entitlement to the benefits pro
vided for in section 12.13 of the Public Service Superannuation
Act. These are motions for the preliminary determination of
points of law. The first question is whether the actions of the
plaintiffs prior to their reassignment—no misconduct is
alleged—is relevant to the determination of the question of
whether the plaintiffs have ceased "otherwise than voluntarily
to be employed" in operational service within the meaning of
section 12.13. The second question is whether, given an affir
mative answer to the first question, the plaintiffs are estopped
from denying the findings of fact made by the Public Service
Staff Relations Board in the decisions on their grievance.
Held, the first question should be answered in the affirmative
and the second, in the negative. It is relevant to examine
whether the plaintiffs knowingly and freely acted in such a way
as to provoke their reassignment, thus possibly making it
voluntary and forfeiting their entitlement to the benefits. Turn
ing to the question of issue estoppel, one important aspect of
the matter had not been addressed by counsel: is issue estoppel
applicable in a court of law to findings previously made by an
administrative tribunal or other quasi-judicial body? A distinc
tion was to be drawn between issue estoppel and estoppel per
rem judicatam. In the latter case, it was clear that where a
tribunal has been granted jurisdiction to finally determine any
matter, its final decision cannot be brought before another
tribunal. The question was whether the same absolute bar
applies in respect of intermediate issues.
The cases on issue estoppel cited by counsel concerned
previous judicial decisions rather than those of administrative
tribunals. Numerous fundamental distinctions were to be
drawn between the rules governing board hearings and court
trials. Among these were: the requirement for the exchange of
pleadings; examination for discovery; whether unsworn testimo
ny will be received; right of persons interested to attend the
proceedings; whether hearsay evidence may be introduced and
whether the tribunal is functus officio once its judgment has
been issued. Since the Board's findings are not binding on itself,
they cannot be binding on a court of law subsequently consider
ing the same issue.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Angle v. Minister of National Revenue, [1975] 2 S.C.R.
248; Carl Zeiss Stiftung v. Rayner & Keeler Ltd. and
others (No. 2), [1967] 1 A.C. 853 (H.L.); Hoystead and
Others v. Commissioner of Taxation, [1926] A.C. 155
(P.C.); Humphries v. Humphries, [1910] 2 K.B. 531
(C.A.); Thoday v. Thoday, [1964] 1 All E.R. 341 (C.A.).
COUNSEL:
J. A. McDougall, Q.C. and J. Hendry for
plaintiffs.
J. Sims for defendant.
SOLICITORS:
Perley-Robertson, Panet, Hill & McDougall,
Ottawa, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
ADDY J.: In these two actions, the plaintiffs are
both professional air controllers. They are suing
the defendant for a declaration to the effect that
they are entitled to benefits set out in section 12.13
of the Public Service Superannuation Act, R.S.C.
1970, c. P-36 [as added by S.C. 1980-81-82-83, c.
64, s. 3], (hereinafter referred to as the Act) and
for special damages for loss of early retirement
benefits and interest thereon.
In both actions, the Court was, by motions
brought pursuant to Rule 474 [Federal Court
Rules, C.R.C., c. 663], requested to determine two
preliminary points of law. Since the same essential
facts were involved and both plaintiffs were repre
sented by the same counsel, it was agreed that
both motions would be argued at the same time.
An order dated September 9, 1983 specified
that the two questions of law to be determined
before trial were the following:
1. Whether the actions of the Plaintiff as alleged in the Defence
of the Defendant herein prior to the re-assignment of the
Plaintiff by the Defendant from operational to non-operational
service are relevant to the determination of the question of
whether the Plaintiff has ceased "otherwise than voluntarily to
be employed" in operational service within the meaning of
Section 12.13 of the Public Service Superannuation Act,
R.S.C. 1970, Chapter P-36, as amended, inasmuch as no
misconduct is alleged against the Plaintiff and where the term
"operational service" is defined in the Public Service Superan-
nuation Act?
2. If the answer to the first question is in the affirmative,
whether the Plaintiff is estopped from denying the findings of
fact made by the Public Service Staff Relations Board in its
decision dated September 5, 1978 in respect of Files number
166-2-3413 and 166-2-3414?
The plaintiffs had been acting as air traffic
controllers for nearly 20 years and were, until the
end of September 1977, performing the duties of
air traffic control supervisors. In this function,
they were still considered as being in operational
service as air controllers as defined in section
12.11 of the Act [as added by S.C. 1980-81-82-83,
c. 64, s. 3]. In August of that year, apparently
following their involvement in a labour dispute,
they were both reassigned to the position of
Regional Air Traffic Control Instructors, which is
a non-operational position. As can be gathered
from the wording of the first question, it is
common ground that they were not transferred by
reason of any misconduct in the performance of
their duties.
For reasons which will be apparent later, they
did not desire to be assigned instructional roles
rather than operational roles and only accepted the
posting under protest.
Grievances were filed with the Public Service
Staff Relations Board (hereinafter referred to as
the Board) and extensive public hearings were held
involving many witnesses and numerous docu
ments. The ultimate decisions are really not rele
vant to the present motions before me but in the
reasons given by the Board many findings regard
ing issues of fact and of mixed law and fact were
made which would undoubtedly be very relevant to
the findings which this Court would have to make
in these actions. The Trial Judge would therefore
have to address himself to these same issues and
listen to evidence and argument thereon unless the
answer to the first question is no or, failing that,
the answer to the second question is yes.
The importance to both parties of the meaning
of "otherwise than voluntarily to be employed" in
section 12.13 of the Act is readily apparent when
one considers the very special, unique and
extremely generous retirement benefits which that
Act provides in section 12.13 for air controllers
who have been in operational service for over 10
years. An ordinary public servant, including non-
operational controllers, must wait until age 60 or
age 55 with 35 years service to draw regular
retirement benefits. At age 50, an ordinary public
servant with 35 years service can receive an annui
ty but it will be a reduced one. On the other hand,
an air controller who leaves the service voluntarily
after the 20 years service in an operational role is
entitled to an immediate annuity. One who has
over 10 years, but less than 20 years service, is also
entitled to an immediate annuity regardless of age,
providing however he has not left the service
voluntarily or, to use the expression of the statute,
providing he ceases to be employed "otherwise
than voluntarily".
An eligible air controller who ceases operational
duties otherwise than voluntarily after 10 years,
but who elects to remain a public servant, is also
immediately entitled, pursuant to subsection
12.13(2), to an "income smoothing" salary supple
ment to be added to his salary, equal to ' of the
pension annuity he would have received had he left
government employment.
The very special retirement benefits including
"income smoothing" benefits are presumably pro
vided for operational air controllers because they
are required to meet exacting technical and health
standards in order to acquire and maintain their
professional licences in view of the fact that the
job is considered an exacting one and because the
safety of the public so greatly depends on their
competence and their physical and mental alert
ness at all times whilst on duty. Unless they meet
the medical or technical professional tests to which
they are periodically subjected, they are removed
from operational service. On the other hand, a
person might well fail a medical test for an opera
tional role as air controller yet remain quite fit to
perform other duties in the Public Service includ
ing the duties of an air traffic control instructor.
The relevant parts of section 12.13 to which I
have referred read as follows:
12.13 (1) Where an air traffic controller employed in opera
tional service on or after April 1, 1976 ceases otherwise than
voluntarily to be employed in such service for any reason other
than misconduct, the following provisions apply:
(b) if he ceases to be so employed having to his credit ten
years or more but less than twenty years of operational
service that is pensionable service, he is entitled, at his option
upon ceasing to be employed in the Public Service, to an
annual allowance in respect of any such service in respect of
which he has not exercised an option under subsection (2) in
lieu of any benefit under subsection 12(1) in respect of such
service, payable immediately upon his exercising his option,
equal to the amount of the deferred annuity that would be
payable under subsection 12(1) in respect of that service
reduced by the product obtained by multiplying five per cent
of the amount of that annuity by twenty minus the number
of years, to the nearest one-tenth of a year, of his operational
service that is pensionable service, with a maximum reduc
tion of thirty per cent.
(2) Notwithstanding any other provision of this Act but
subject to section 12.22, where an air traffic controller referred
to in subsection (1) is, following his operational service,
employed in the Public Service in other than operational service
and has not received a benefit pursuant to subsection (1) or
subsection 12(1) in respect of his operational service, he is
entitled, at his option, to an annuity equal to the amount of the
immediate annuity or annual allowance that would have been
payable to him under subsection (1) had he ceased to be
employed in the Public Service when he terminated his opera
tional service in respect of up to a maximum of fifty per cent of
his operational service that is pensionable service, payable
immediately upon his exercising his option.
Thus, the two plaintiffs who each have more
than 10 years but less than 20 years of operational
service to their credit would be entitled to benefit
from these provisions if it is found that they
ceased, otherwise than voluntarily, to be employed
in that capacity.
The first question is truly one of relevancy and
is normally reserved for decision by the Trial
Judge.
The defendant's counsel alleges and intends to
establish in evidence that the plaintiffs wilfully
and deliberately embarked on a course of conduct
that set in motion a chain of events which foresee-
ably culminated in their removal from their jobs
and their transfer to different positions and that
this does not mean that the transfers were involun
tary or that the plaintiffs had no control over the
events. He argues that they were transferred
"because they had acted wilfully and deliberately
in a manner inconsistent with the requirements of
the aspects of their jobs which did not relate
directly to operational service."
For the purpose of determining the question of
relevancy, one must assume the possibility of these
allegations being established. The answer to the
question cannot be divorced from the factual situa
tion which might exist at trial and must be
answered in the light of an assumption that all of
the factual elements which might tend circumstan
tially to indicate some voluntary elements other
than a bare acceptance of the transfer, will be
actually established in evidence. The basic ques
tion must be studied in the light of a situation
where an air controller deliberately does some
thing which is not in the line of his duty as such
but which he knows would logically and in all
probability lead to his being transferred to a non-
operational role. Can he then, when such transfer
occurs, be considered as having been transferred
"otherwise than voluntarily", because he does not
wish to accept a transfer and desires to continue in
his operational role?
Section 12.11 of the Act defines "operational
service" as follows:
"operational service" means service of a kind designated in the
regulations made under paragraph 32(1)(v.1) to be opera
tional service and includes such periods of time spent away
from such service as are specified under those regulations.
Paragraph 32(1)(v.1) [as added by S.C. 1980-
81-82-83, c. 64, s. 5(4)] authorizes the making of
regulations for the purpose of:
(v.1) designating the kind of service that, for the purposes of
the definition "operational service" in section 12.11, is opera
tional service and specifying the periods of time away from
operational service that are to be included within the mean
ing of operational service;
Section 52 of the [Public Service Superannua-
tion] Regulations [C.R.C., c. 1358 (as added by
SOR/81-866, s. 2)], issued pursuant to the last
mentioned section of the Act, reads as follows:
52. For the purposes of section 12.13 of the Act, a contribu
tor is considered to have ceased otherwise than voluntarily to be
employed in operational service on certification by the deputy
head of the Department of Transport that
(a) the employee is unable to meet the medical requirements
for validation of his Air Traffic Controller Licence or letter
of authority issued by the Department of Transport;
(b) the employee is unable to maintain the required level of
technical proficiency; or
(c) removal of the employee from operational service is
necessary for the preservation of his physical or mental
health.
I do not accept the argument that the above
regulation excludes any other possible meaning of
the words "otherwise than voluntarily", by reason
of the application of the principle "expressio unius
exclusio alterius". There is no specific statutory
authority in section 32 of the Act [as am. by
R.S.C. 1970 (1st Supp.), c. 32, s. 2; S.C. 1974-75-
76, c. 81, s. 21; S.C. 1976-77, c. 28, s. 35; S.C.
1980-81-82-83, c. 64, s. 5] to define voluntary
service, but merely authority to specify the periods
of time away from operational service which are to
be considered as if they were operational.
Section 52 of the Regulations does not purport
to define "otherwise than voluntarily" and if it did
the definition would not be valid at law as in the
absence of specific statutory authority to do so, the
meaning of a statutory provision cannot be deter
mined by regulation.
Any provision in a statute must be interpreted in
the light of the statute as a whole and the first
meaning to be applied to words used therein is
their ordinary, grammatical every day meaning.
Where the plain and ordinary meaning of a word
is not inconsistent with the scheme of the statute,
then obviously it must prevail. If on the other
hand, it is inconsistent, then a specially limited or
extended meaning, as the case may be, will be
ascribed to the word to give effect to the spirit of
the legislation and to avoid the apparent intention
of the legislator from being frustrated.
"Voluntarily" means of one's own free will and
without compulsion or constraint. A whole line of
American cases were cited in support of a principle
that, where a statute makes benefits conditional
upon a termination of employment, the actions of
the individual whose employment has been ter
minated are irrelevant. I was also referred to
several decisions of umpires under the Unemploy
ment Insurance Act [R.S.C. 1970, c. U-2 (rep. by
S.C. 1970-71-72, c. 48)]. These cases refer to
termination of employment as opposed to transfer.
In any event, as previously stated, the meaning of
any word in a statute must always be construed in
the context of the statute itself.
In view of the very special provisions in favour
of operational air controllers taken in the context
of the general scheme of the Act, it would appear
to be inconsistent with the intention of the legisla
tor to find that, although the air controller has
knowingly, freely and voluntarily done everything
which would logically lead to his being transferred,
when that transfer actually occurs he must be
considered as having been transferred otherwise
than voluntarily, by reason of the fact that he
nevertheless desires to remain in an operational
role and is not willing to accept the transfer. The
question, reduced to its elements, is really one of
cause and effect: where a person voluntarily brings
about the cause knowing full well that the albeit
undesired effect will necessarily or in all probabili
ty result, can it be said that he did not voluntarily
bring about the effect although he would desire
that the effect not follow the cause? It is a well-
known principle of law and indeed one of human
behaviour that a person is presumed to intend the
natural consequences of his actions, especially
when these consequences are foreseen and fully
appreciated beforehand. I do not feel that it is of
any importance that in order for those conse
quences to occur, the action of another party must
also take place (in this case the decision of the
employer to transfer the employee) where the
intervening action of the other party is one that
must obviously, logically and reasonably be
expected in those circumstances. To find otherwise
in the light of this statute would furthermore be
unfair to other air controllers who have not acted
in this manner and who are obliged to continue to
perform operational services in order to maintain
their benefits. It might also lead to total disorder
and defeat the very purpose why the special ben
efits were provided to operational air controllers.
My answer to the first question will therefore be
"yes".
Turning now to the question of issue estoppel
raised in the second question; detailed argument
was presented and a considerable amount of juris
prudence was referred to regarding the nature, the
requirements and the limitations of issue estoppel
and regarding the question whether it could be
invoked with respect to several of the fundamental
conclusions drawn by the Board in its findings.
There is however one aspect of the matter which
was not argued by counsel, but which appears to
me to be germane to the case at bar, namely the
question as to whether issue estoppel is applicable
in a regular court of law to findings previously
made by an administrative tribunal, board or other
similar quasi-judicial body? More specifically and
admitting for the moment, without so finding, that
all of the essential requirements of issue estoppel
are present regarding particular issues of fact and
of mixed law and fact determined by the Board,
and that those issues are relevant and fundamental
to the determination of the present action, can
those findings be considered binding at law on the
Federal Court of Canada by reason of the fact that
the parties are precluded from introducing evi
dence before this Court on those issues?
In answering this question, a distinction might
well be drawn between issue estoppel and cause of
action estoppel more commonly referred to as res
judicata or estoppel per rem judicatam. In the
latter case it is clear that where any tribunal
whether administrative or otherwise has been
granted special jurisdiction to try any cause or
finally determine any matter and the cause or
matter has been adjudicated upon and a final
decision has been rendered thereon by the tribunal,
then any other court or judicial body is, by reason
of the fact that special jurisdiction to try the
matter rests in the first tribunal and also by reason
of the operation of the principle of res judicata,
precluded from hearing the cause or matter again
and the parties are by estoppel per rem judicatam
precluded from bringing that same issue before
any other tribunal.
What is to be considered now is whether the
same absolute bar applies as well to cases where it
is not the same ultimate cause or matter which
was decided by the administrative tribunal but
fundamental relevant intermediate issues. The
reported cases dealing with issue estoppel cited by
counsel such as Angle v. Minister of National
Revenue, [1975] 2 S.C.R. 248, Carl Zeiss Stiftung
v. Rayner & Keeler Ltd. and others (No. 2),
[1967] 1 A.C. 853 [H.L.], Hoystead and Others v.
Commissioner of Taxation, [ 1926] A.C. 155
(P.C.), Humphries v. Humphries, [1910] 2 K.B.
531 (C.A.), Thoday v. Thoday, [1964] 1 All E.R.
341 [C.A.] at page 351, et seq., refer to or deal
with a previous action or a previous judicial deci-
sion as opposed to a previous decision of an
administrative tribunal.
There are many fundamental distinctions to be
drawn between a hearing or adjudication before an
administrative board or tribunal or quasi-judicial
tribunal and a trial in a court of law. As these have
a direct bearing on the subject, it would be useful
to enumerate and comment on some of them.
1. Generally speaking, in proceedings before
administrative tribunals, there is no requirement
or provision for the exchange of formal pleadings
wherein the essential or basic facts which the
parties intend to establish or deny in support of
their case must be clearly stated beforehand.
There is thus no requirement on the parties to
clearly define all of the fundamental issues of fact
and of mixed law and fact before the hearing takes
place.
2. There is, generally speaking, no right to pre-
trial oral discovery or discovery of documents nor
are there procedural provisions for pre-trial
motions to order discovery.
3. Most boards are authorized to accept, and do
in fact regularly accept and act upon, unsworn
testimony.
4. Before many such boards and tribunals there
is no absolute right for a person whose interest
might be directly affected by the decision to actu
ally be present during the proceedings, providing
that person has been made fully aware of the
nature and extent of the evidence adduced and has
been afforded a reasonable opportunity of reply
ing, of presenting evidence and otherwise meeting
the case presented.
5. During the course of the hearing, hearsay
evidence, including hearsay at times several steps
removed from the original source of information, is
allowed before many of these tribunals and simi
larly informal and unverified proof is accepted
regarding the admission of exhibits and other
documentary evidence. As a result a finding can at
times be reached by an administrative tribunal
which could never be made by a court of law
where strict evidentiary rules must be applied. It
would not only be unjust and illogical but it would
constitute a travesty of justice to oblige a court of
law to be bound by an issue of fact which, if tried
before it, could not be established.
6. A court of law is always bound by its own
findings and once formal judgment has been issued
thereon it is functus officio, except in rare cases
where fraud, perjury or some other similar serious
impediments to the administration of justice can
clearly be established as having fundamentally
contributed to the decision. On the other hand, by
their very nature administrative decisions are fre
quently not considered as final unless the statute
so provides: at the tribunal's discretion the matter
can be reconsidered and the decision varied or
reversed where fresh evidence is discovered or
where it seems just or desirable to do so. On this
issue, section 25 of the Public Service Staff Rela
tions Act, R.S.C. 1970, c. P-35, reads as follows:
25. The Board may review, rescind, amend, alter or vary any
decision or order made by it, or may rehear any application
before making an order in respect thereof, except that any
rights acquired by virtue of any decision or order that is so
reviewed, rescinded, amended, altered or varied shall not be
altered or extinguished with effect from a day earlier than the
day on which such review, rescission, amendment, alteration or
variation is made.
Since the Board's decisions are not final and
since it may review or rescind, alter or vary any
decision, it must necessarily be implied that the
same power extends to any findings on which the
decision itself is founded.
A finding which is not final or binding on the
tribunal that makes it can surely not at law be held
to be final or binding on a court of law subsequent
ly considering that same issue.
For the above reasons, I conclude that in any
trial of a matter before the Federal Court of
Canada, issue estoppel cannot apply with respect
to any intermediate finding of the Public Service
Staff Relations Board.
The second question will therefore be answered
in the negative.
Costs of this motion will be in the cause.
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.