The Queen (Appellant)
v.
John William Robertson (Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and
Cameron D.J.—Ottawa, September 14, 1972.
Public Service—Legislation—Regulatory power—Employ-
ment in public service—Termination of—Governor in Coun
cil authorized to prescribe retirement age—No power to
terminate employment at discretion of deputy minister—
Public Service Superannuation Act, R.S.C. 1970, c. P-36,
section 32(1)(y).
Section 32(1)(y) of the Public Service Superannuation
Act, R.S.C. 1970, c. P-36, which authorizes the Governor in
Council to provide by regulation that a contributor (i.e. a
civil servant) shall cease to be employed in the Public
Service upon attaining such age as is fixed by the regula
tions does not authorize the Governor in Council to provide
for the termination of a contributor's employment after
attaining the age prescribed at the discretion of a deputy
minister.
APPEAL.
C. R. O. Munro, Q.C. and I. G. Whitehall for
appellant.
M. W. Wright, Q.C. and J. L. Shields for
respondent.
The judgment of the Court was delivered by
JAcKETT C.J. (orally)—Mr. Wright, the Court
has decided not to call on you.
This is an appeal from a declaratory judgment
of the Trial Division [[1972] F.C. 80]. The sole
question raised by the appeal is whether subsec
tion (12) of section 20 of the Public Service
Superannuation Regulations, as amended by
P.C. 1968-1156 made on June 12, 1968, is a
valid exercise of the regulation-making power
conferred by section 32(1)(y) of the Public Serv
ice Superannuation Act, which is now contained
in R.S.C. 1970, c. P-36. If the regulation is
valid, the appeal succeeds. If it is invalid, the
appeal fails.
The regulation-making power in question
reads as follows:
32. (1) The Governor in Council may make regulations
(y) notwithstanding any other Act of the Parliament of
Canada, but subject to subsection (11), providing that,
upon attaining such age as is fixed by the regulations, a
contributor shall cease to be employed in the Public
Service unless his continued employment therein is
authorized in accordance with such regulations, and pre
scribing the circumstances under which and the condi
tions upon which he may continue to be employed in the
Public Service after he has attained that age but saving all
rights and privileges of either House of Parliament in
respect of the control, removal or continuance in office of
its officers, clerks and employees; and ...
The regulation whose validity is under attack
reads as follows:
20. (12) Notwithstanding anything in this section, a
deputy head may at any time, for reason only of age,
terminate the employment of a contributor who has attained
sixty years of age, but who has not attained sixty-four years
and six months of age, if the deputy head gives to the
contributor at least six months notice of termination of
employment.
In our view it is clear that section 32(1)(y)
authorizes only the making of regulations pro
viding that upon attaining such age as is fixed
by the regulations a contributor shall cease to be
employed in the Public Service unless his con
tinued employment therein is authorized in
accordance with such regulations. We are fur
ther of the view that Regulation 20(12), which
provides in effect that, after attaining a pre
scribed age, the employment of a contributor
shall be terminable at the discretion of a deputy
minister upon the ground of the contributor's
age, is beyond the powers so conferred.
It follows that we are agreed that the appeal
must be dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.