Gerald Alfred Kedward (Plaintiff)
v.
The Queen and W. L. Higgitt, Commissioner of
the Royal Canadian Mounted Police (Defendants)
Trial Division, Sheppard D.J.—Vancouver,
October 5,6 and 16, 1973.
Civil rights—Crown—Public service—Royal Canadian
Mounted Police—Dismissal of constable for refusing trans-
fer—Claim for wrongful dismissal—Whether right to a hear
ing before dismissal—Canadian Bill of Rights, section 2(e).
An R.C.M.P. constable was dismissed from the force by
the Commissioner pursuant to the R.C.M.P. Regulations for
refusing to accept a transfer. He sued for wrongful
dismissal.
Held, the action must be dismissed.
(1) The Crown may dismiss its servants at pleasure.
(2) The powers of dismissal given by the Royal Canadian
Mounted Police Act and Regulations had not been exceeded.
(3) The principles of natural justice had not been denied
even though the constable had not been granted a hearing
before being dismissed. The maxim audi alteram partem
applies only in judicial or quasi-judicial matters. The Queen
v. Randolph [1966] S.C.R. 260, applied.
(4) Section 2(e) of the Canadian Bill of Rights, guarantee
ing a person the right to a fair hearing for the determination
of his rights, has no application. Bokor v. The Queen [1970]
Ex.C.R. 842, followed; Bridge v. Baldwin [1964] A.C. 40,
distinguished.
ACTION.
COUNSEL:
Harry D. Boyle for plaintiff.
Norman C. Mullins, Q.C., for defendants.
SOLICITORS:
Rosenbloom and Boyle, Vancouver, for
plaintiff.
Deputy Attorney General of Canada for
defendants.
SHEPPARD D.J.—This action is by a former
member of the Royal Canadian Mounted Police
for wrongful dismissal claiming damages and a
declaration that his discharge was ultra vires.
The facts follow.
The plaintiff first joined the Royal Canadian
Mounted Police on the 3rd of January 1957 and
purchased his discharge as of the 7th of August
1959 for the purpose of getting married. He
rejoined the Royal Canadian Mounted Police on
the 23rd of August 1961 and continued until his
discharge by the Commissioner as of the 5th of
October 1971. His service was satisfactory and
he was a good policeman.
The dismissal occurred under the following
circumstances:
On the 13th of May 1971 the plaintiff was
serving at Prince George, British Columbia. He
was offered a transfer to Prince Rupert to
replace a corporal and hence his transfer prob
ably would mean a promotion. The plaintiff
accordingly arranged for a house hunting trip to
Prince Rupert for which he telephoned to Prince
Rupert on the 13th of May 1971 requesting the
office staff there to look out for a residence for
him and his family then consisting of his wife
and three daughters. Accordingly from the 16th
to the 19th of June 1971 (Exhibit 1) he went to
Prince Rupert on the house hunting trip but
found no residence which he considered suit
able. On the 21st of June 1971, (Ex. 1) the
plaintiff wrote the Officer Commanding at
Prince George stating that no suitable accommo
dation existed at Prince Rupert and requesting
that his transfer be given re-consideration.
Again on the 2nd of July 1971 (Ex. 2) the
plaintiff wrote the Officer Commanding at
Prince George asking that his transfer be re-con
sidered as there was not what he considered
suitable accommodation. This letter was accom
panied by that of Dr. U. Khare of June 30, 1971
concluding "If she (the plaintiff's wife) has to
live in a multiple dwelling unit again it might
cause her mental disturbance and create a
family problem." By a letter of the 21st of July
1971 (Ex. 4) the plaintiff wrote the Officer
Commanding at Prince George stating in part
"Please be advised that this member has no
choice but to refuse this transfer on the grounds
as previously presented in the request of July
2nd."
By memo of the 9th of August 1971 (Ex. 10)
the Assistant Commissioner commanding E.
Division, (B.C.) wrote to the Officer Command
ing at Prince George that the plaintiff was to be
paraded and informed that a recommendation
was being submitted to the Commissioner for
his discharge as unsuitable pursuant to Reg.
173, and by letter of the same date the Assistant
Commissioner commanding E. Division to the
Commissioner at Ottawa the Assistant Commis
sioner recommended the plaintiff's discharge as
unsuitable. By letter of August 25, 1971 (Ex. 7)
the superintendent Rosberg, being the Officer
Commanding at Prince George, stated that the
plaintiff had been paraded before him that day
in order to advise that "a recommendation is
being submitted to the Commissioner for your
discharge from the forces as unsuitable pursu
ant to Royal Canadian Mounted Police Regula
tion 173 ", "that by memorandum dated the 20th
of July 1971 you were advised that your trans
fer to Prince Rupert would stand as ordered."
Also sections 151 and 1200 were read to the
plaintiff, all of which was acknowledged by the
plaintiff's signature. Sections 151 and 1200 read
as follows:
151. Every member shall be advised immediately of any
recommendation that is made for his discharge from the
Force.
RECOMMENDATIONS FOR DISCHARGE
1200. (1) When a member is informed pursuant to Reg.
151 that his discharge from the Force is being recommend
ed, he shall also be advised that he may appeal to the
Commissioner against the recommendation.
(2) Subject to (3), such an appeal must be made in writing
and within four days after notification of the recommen
dation.
(3) When a recommendation is made pursuant to sec. 38
of the R.C.M.P. Act and the convicted member requests a
written transcript of the evidence, the provisions of sec. 41
of the Act shall apply.
By letter of the 25th of August 1971 (Ex. 5)
the plaintiff appealed to the Commissioner from
the sentence of dismissal "on compassionate
grounds". On the 17th of September the plain
tiff was informed that the Commissioner had
decided upon his discharge. By letter 22nd of
September 1971 (Ex. 6) with a letter of the 24th
of September 1971 by Dr. U. Khare (Ex. 3) the
plaintiff renewed his arguments to the
Commissioner.
The plaintiff received his discharge as of the
22nd of October 1971 (Ex. 9) which recited that
he was discharged as of the 5th of October 1971
"in consequence of having been unsuitable for
duties in the force. Conduct during service satis
factory." The discharge was published on the
6th of November 1971 (Ex. 8). That publication
was compulsory reading for members of the
force. Under date of the 8th of October 1971
(Ex. 11) the Discharge Board was impanelled
pursuant to section 155 of the regulations. The
plaintiff has rendered no service after the 5th of
October 1971.
1. The plaintiff has no contract of employ
ment for a definite period and cannot maintain
an action for wrongful dismissal.
In Zamulinski v. The Queen (1957) 10 D.L.R.
(2d) 685, Thorson P. at p. 693 stated:
I now proceed to consideration of the issues of law
involved in this case. Some of them are simple. The suppli
ant was a temporary employee of the Post Office Depart
ment and had no right to permanent employment. Moreover,
even if he had become a permanent employee his appoint
ment was during pleasure. Section 19 of the Civil Service
Act, to which I have already referred, puts the long-standing
rule that servants of the Crown, in the absence of law to the
contrary, hold office during pleasure into statutory effect.
Consequently, it may be said offhand that the suppliant has
no right to the declaration sought by him that his employ
ment in the Civil Service of Canada is still continuing and
that he is entitled to wages and his claim for such a declara
tion must be dismissed.
I am likewise of the opinion that the suppliant has no right
to any damages for wrongful dismissal. Such a claim con
notes in its ordinary sense breach of contract, but in this
case the suppliant did not have any contract of employment
in the Post Office Department and certainly not a contract
that was not terminable at pleasure. The fact that his
appointment was at pleasure under s. 19 of the Act means
that he could have been dismissed without cause or notice
and even arbitrarily. The suppliant has, therefore, no right to
any damages for wrongful dismissal in the ordinary sense of
the term and his claim for damages therefor must also be
dismissed.
This leaves only the suppliant's claim for damages for not
having been given an opportunity, prior to his dismissal, of
presenting his side of the case to a senior officer of the
Department nominated by the deputy head.
In Peck v. The Queen, [1964] Ex.C.R. 966,
Cattanach J. at page 990 stated:
I am likewise of the opinion that the suppliant has no right
to any damages for wrongful dismissal since such claim
connotes in its ordinary sense a breach of contract. In this
case the suppliant did not have any contract of employment
and certainly not a contract that was not terminal at pleas
ure. The fact that her appointment was at pleasure under
section 19 of the Act, means that she could have been
dismissed arbitrarily without cause or notice.
Therefore, the suppliant has no right to any damages for
wrongful dismissal in the ordinary sense of that term and
her claim for damages therefor must also be dismissed.
The action of wrongful dismissal is based
upon a contract of employment for a definite
period. Here there is no contract of employment
for a definite period. Section 53 of the Royal
Canadian Mounted Police Act, R.S.C. 1970, c.
R-9 reads as follows:
53. For the purpose of determining liability in any action
or other proceeding by or against Her Majesty, a person
who was at any time a member of the force shall be deemed
to have been at such time a servant of the Crown.
The prerogative of the Crown permits the
dismissal at pleasure and there is nothing limit
ing that prerogative in the statute.
2. The Royal Canadian Mounted Police Act
sets up an exclusive forum and therefore this
Court has no jurisdiction unless the power con
ferred is abused or exceeded. In The Queen and
Archer v. White [1956] S.C.R. 154, Rand J. for
the majority stated at p. 159:
Parliament has specified the punishable breaches of disci
pline and has equipped the Force with its own courts for
dealing with them and it needs no amplification to demon
strate the object of that investment. Such a code is prima
facie to be looked upon as being the exclusive means by
which this particular purpose is to be attained. Unless,
therefore, the powers given are abused to such a degree as
puts action taken beyond the purview of the statute or
unless the action is itself unauthorized, that internal manage
ment is not to be interfered with by any superior court in
exercise of its long established supervisory jurisdiction over
inferior tribunals ... .
S. 31 directs and authorizes a superintendent in a sum
mary way to "investigate" the charge and if proved "on oath
to his satisfaction" to convict. What is being carried out is
not a trial in the ordinary sense but an enquiry for the
purpose of administration and the mere fact that Parliament
has authorized fines and imprisonment does not affect that
fact: the contemplated standards of conduct and behaviour
of members of the Force are being maintained.
At page 160:
Parliament has placed reliance for the proper execution of
this important function in the responsibility and integrity of
these officers. The very existence of the Force as it is
conceived depends upon this administration by men of high
character, and the Act contemplates the proceedings of
discipline to be what may be called as of domestic govern
ment. If, within the scope of authority granted, wrongs are
done individuals, and that is not beyond possibility, the
appeal must be to others than to civil tribunals, or, as in the
case of the Army, they must be looked upon as a necessary
price paid for the vital purposes of the Force.
And at page 161:
What the expression "disciplinary powers" means
includes at least sanctions wielded within a group executing
a function of a public or quasi-public nature where obedi
ence to orders and dependability in carrying them out are,
for the safety and security of the public, essential and their
maintenance of standards the immediate duty of every
member.
The power of dismissal or discharge has not
been exceeded. Section 13(2) of the Royal
Canadian Mounted Police Act reads as follows:
13. (2) Unless appointed for temporary duty, every
member other than an officer shall upon appointment sign
articles of engagement for a term of service not exceeding
five years, but any such member may be dismissed or
discharged by the Commissioner at any time before the
expiration of his term of engagement.
In this case there were no articles of engage
ment signed by the plaintiff and on the evidence
the articles were not used in general but their
absence would not affect the validity of the
appointment of the plaintiff because the words
"upon appointment" must be construed as after
appointment. Being after the appointment and
not preceding, the articles of appointment
cannot be a condition precedent to the appoint
ment. Pordage v. Cole (1671) 85 E.R. 449.
As to the latter part of the section, the power
of dismissal of the plaintiff is conferred upon
the Commissioner at any time before the expira
tion of his term of engagement. Section 173 of
the Regulations reads as follows:
173. The Commissioner may recommend the discharge of
an officer and may discharge a member other than an officer
who has proved to be unsuitable for duties in the Force.
Section 150 permits discharge of a member
for any of the following reasons:
(d) unsuitability;
The limitations recommended by the Act and
Regulations have been observed and the plain
tiff was notified of the issue and hearing and
submitted his objections to the issue. The plain
tiff wrote asking that the order for his removal
be reconsidered. (Letter 21 June 1971 Ex. 1 and
of 2nd July 1971, Ex. 2 and letter of Dr. Khare
of 30th June 1971, Ex. 2.) By letter of 21st July
1971 (Ex. 4) the plaintiff refused his transfer.
By letter of 25th of August 1971 (Ex. 7) the
plaintiff was paraded and informed that his dis
charge was being recommended as unsuitable,
as required by section 151 (supra). On 25th
August 1971 (Ex. 5) the plaintiff wrote the
Commissioner and again wrote the Commission
er a letter on 22nd Sept. 1971 (Ex. 6) accom
panied by a letter of Dr. Khare of 24th Septem-
ber 1971 (Ex. 3). Hence the Act and
Regulations were complied with. The plaintiff
has been notified of the hearing before the
Commissioner and the purpose of the hearing;
and further the plaintiff submitted his objec
tions to such a finding.
3. The plaintiff has alleged that his discharge
was wrongful and therefore void upon the prin
ciple of natural justice or the doctrine of audi
alteram partem. That contention fails for the
following reasons:
(a) Parliament has jurisdiction to abrogate the
application of a doctrine. In The Queen v. Ran-
dolph [1966] S.C.R. 260, Cartwright J. for the
Court stated at p. 265:
There is no doubt that Parliament has the power to abrogate
or modify the application of the maxim audi alteram partem.
In s. 7 it has not abrogated it.
The powers of the Commissioner to discharge
as contained in the Act or Regulations have not
been abrogated and any limitation upon such
powers has been complied with.
(b) The doctrine audi alteram partem only
applies to a judicial or quasi-judicial jurisdic
tion. Such doctrine has its application defined in
The Queen v. Randolph (supra) at p. 266 as
follows:
Generally speaking the maxim audi alteram partem has
reference to the making of decisions affecting the rights of
parties which are final in their nature... .
Here the plaintiff has no right against the Crown
to a definite term or not to be dismissed at
pleasure. Hence the Commissioner has not exer
cised a power to which the doctrine applies.
(c) The contention of the plaintiff is that the
failure to regard the doctrine audi alteram
partem has interfered with the rights of the
plaintiff under section 2(e) of the Canadian Bill
of Rights, S.C. 1960, c. 44 (R.S.C. 1970, Appen
dix III) which reads:
2. Every law of Canada shall, unless it is expressly
declared by an Act of the Parliament of Canada that it shall
operate notwithstanding the Canadian Bill of Rights, be so
construed and applied as not to abrogate, abridge or infringe
or to authorize the abrogation, abridgment or infringement
of any of the rights or freedoms herein recognized and
declared, and in particular, no law of Canada shall be
construed or applied so as to
(e) deprive a person of the right to a fair hearing in
accordance with the principles of fundamental justice for
the determination of his rights and obligations;
Section 2(e) has no application to the case at
bar and confers no right upon the plaintiff for
the reasons stated in Bokor v. The Queen [1970]
Ex.C.R. 842, by Walsh J. at page 868.
The case of Bridge v. Baldwin [1964] A.C. 40
cited by the plaintiff is distinguishable as there
the watch committee had the power to suspend
or dismiss "whom they think negligent in the
discharge of his duty or otherwise unfit for the
same." Therefore the watch committee was
exercising a power judicial or extra-judicial
within the Queen v. Randolph (supra) in that
they were trying the issue whether the officer
was negligent or unfit but in the case at bar the
Commissioner by discharging the plaintiff has
annulled an existing relationship by virtue of the
powers conferred upon him by the statute, the
Royal Canadian Mounted Police Act and was
therefore exercising not a judicial or quasi-judi
cial function but of an administrative nature not
required by law to be made on a judicial or
quasi-judicial basis.
The action is therefore dismissed but by
reason of the circumstances costs will be pay
able to the defendants only if demanded by
them.
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.