T-762-77
Michel Ouimet (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Cattanach J.—Ottawa, October 5
and 25, 1977.
Jurisdiction — Public Service — Public Service Employ
ment Regulations, SOR/67-129, s. 30(2) — Probationary
period of employee extended, under s. 30(2) of the Regula
tions, beyond period required in Regulations — Employee
rejected during extension of probationary period — Whether
or not s. 30(2) is ultra vires — Public Service Employment
Act, R.S.C. 1970, c. P-32, ss. 6,28 — Public Service Employ
ment Regulations, SOR/67-129, s. 30.
The Regional Director of the Canadian Penitentiary Service
extended the plaintiff's probationary period of employment
beyond the period stipulated in the Public Service Employment
Regulations on the authority of section 30(2) of the Regula
tions. During this extension, plaintiff was notified of his rejec
tion on probation. The Public Service Staff Relations Board,
after it heard the plaintiff's grievance, concluded that it was
without jurisdiction. The plaintiff seeks a declaration that
section 30(2) of the Public Service Employment Regulations is
ultra vires—the sole issue before the Court. The other declara-
tory relief sought follows automatically.
Held, the action is allowed. The Public Service Commission,
by prescribing a probation period for a class of employees, has
exhausted the authority conferred upon it by section 28(1) of
the Public Service Employment Act and accordingly no au
thority remains to it which could be delegated to a deputy head
under section 6(1) of the Act. In addition, the Commission
itself cannot vary a period of probation between specific
minima and maxima. The word "period" in section 28(1),
without appropriate modification, must mean a fixed time and
not a term at will. By fixing the probationary period at six
months, a term certain, the Commission has exhausted its au
thority leaving nothing to delegate to a deputy head.
In re Royalite Oil Co. Lid. and Tannas [1943] 2 W.W.R.
348, referred to; R. v. Unemployment Insurance Commis
sion, Ex parte Heggen (1964) 41 D.L.R. (2d) 436,
referred to. Mersey Docks and Harbour Board v. Hender-
son Brothers (1888) 113 App. Cas. 595, applied.
ACTION.
COUNSEL:
M. Wright, Q.C, for plaintiff.
L. S. Holland for defendant.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
CATTANACH J. Prior to the trial of this matter
counsel for the parties reached an agreement as to
facts upon the basis of which this action is to be
tried.
That agreement dated at Ottawa on June 21,
1977 reads:
The parties hereto agree that the within action shall be tried on
the basis of the following facts:
1. The Plaintiff resides in the City of Montreal in the Province
of Quebec. At all times material to this action, he was an
employee of the Canadian Penitentiary Service which is a part
of the Ministry of the Solicitor-General.
2. An open competition was held by the Public Service Com
mission to fill a position of Agent de Sécurité in the Canadian
Penitentiary Service. In this competition, the Plaintiff was held
to be qualified for appointment.
3. By letter dated the 29th day of May, 1975 addressed by an
agent of the Defendant to the Plaintiff, the Plaintiff was
offered employment in the position of Agent de Sécurité as
aforesaid, such employment to commence on the 9th day of
June, 1975. A copy of the said letter dated the 29th day of
May, 1975 is hereto attached as Document "A".
4. The Plaintiff was considered to be on probation from the 9th
day of June, 1975 until the 8th day of December, 1975.
5. On the 8th day of December, 1975 an agent of the Defend
ant wrote a letter to the Plaintiff. The letter stated that the
Plaintiffs probationary period was being extended for an addi
tional period of six months expiring on the 9th day of June,
1976 and the said letter stated that the decision to make such
extension was taken by virtue of Section 30(2) of the Public
Service Employment Regulations. A copy of the said letter
dated the 8th day of December, 1975 is hereto attached and
marked as Document "B".
6. On the 11th day of March, 1976 a letter was written by the
Regional Director of the Canadian Penitentiary Service notify
ing the Plaintiff that he had been rejected while on probation
and that he would cease to be an employee on the 20th day of
March, 1976. A copy of the said letter dated the 11th day of
March, 1976 is attached as Document "C".
7. The Plaintiff filed a grievance on the 18th day of March,
1976 which, pursuant to the provisions of the Public Service
Staff Relations Act, was referred to adjudication under Section
91(1)(b) thereof.
8. On the 8th day of September, 1976 the Plaintiffs grievance
was heard by Edward B. Jolliffe, Esq., Q.C., Deputy Chairman
of the Public Service Staff Relations Board. A written decision
was rendered by him on the 15th day of September, 1976. The
French version of the Decision is hereto attached as Document
"D" and the English version thereof is hereto attached as
Document "E".
When the plaintiff entered the open competition
referred to in paragraph 2 of the agreed statement
of facts counsel for the parties agreed that he was
not an employee in the Public Service. In fact he
was an applicant from without the Public Service.
The letter dated May 29, 1975 referred to in
paragraph 3 of the agreed statement of facts and
annexed thereto as Document "A" was written in
French to the plaintiff by an officer of the Depart
ment of the Solicitor General holding a responsible
position in the Penitentiaries Branch.
In the initial paragraph the author of the letter
advises the plaintiff that he is being offered a post
in the Penitentiary Service by the Public Service
Commission, the portions pertinent to this action I
freely translate.
The fourth item in the second paragraph states
that the "period of probation" is "six months, in
accordance with the Public Service Employment
Regulations".
The second last paragraph of the letter, Docu
ment "A", is to the effect that the plaintiff shall
begin his duties' on Monday, June 9, 1975 and that
he must report at 8:30 a.m. at a specific place and
address.
With respect to paragraph 4 of the agreed state
ment of facts it is stated in the first paragraph of a
letter dated December 8, 1975 from the Regional
Director to the plaintiff that the six-month proba
tionary period established upon the plaintiff s
appointment as a security guard would end on
December 9, 1975.
In paragraph 5 of the agreed statement of facts
reference is made to that letter dated December 8,
1975, which is annexed as Document "B", which
continued to state that while the initial probation
ary period of six months from June 9, 1975 would
end on December 9, 1975 the Regional Director
(and again I freely translate) stated: "In the light
of this information I have come to the decision to
extend your probationary period by six months
that is to say until June 9, 1976. This decision is
taken under section 30(2) of the Public Service
Employment Regulations."
Apparently two inmates of a penal institution
escaped while under the surveillance of the
plaintiff.
In paragraph 6 of the agreed statement of facts
reference is made to a letter dated March 11,
1976, annexed as Document "C", by which the
Regional Director notified the plaintiff in the
fourth paragraph to this effect:
(My free translation): "In the light of this infor
mation I have come to the decision to reject you
from the Service during the probationary period
for cause. The effective date for the termination of
your employment has been fixed as March 20,
1976".
The information referred to was a report by the
plaintiffs superior of unsatisfactory performance
of his duties which also constituted the cause for
his dismissal. In the next paragraph of his letter
dated March 11, 1976, Document "C", the
Regional Director adds that:
This decision to reject (you) in the probationary period is taken
in accordance with section 28(3) of the Public Service Employ
ment Act.
It was agreed between counsel for the parties
that the Regional Director was the proper person
to initiate the extension of the plaintiffs proba
tionary period and the plaintiffs ultimate dismis
sal for cause within the extended period, either as
deputy head or the person authorized to act as
deputy head in these respects, so that the validity
of the actions taken by that officer are not chal
lenged for this reason.
As recited in paragraphs 7 and 8 of the agreed
statement of facts the plaintiff filed a grievance
pursuant to the Public Service Staff Relations Act
and that grievance was heard by Edward B. Jol-
liffe, Q.C., Deputy Chairman of the Public Service
Staff Relations Board.
In a learned and very lucid decision dated Sep-
tember 15, 1976 Mr. Jolliffe concluded that the
decision to terminate the plaintiffs employment
was not taken for disciplinary reasons but rather
that such decision was taken under section 28(3)
of the Public Service Employment Act, R.S.C.
1970, c. P-32, and was a rejection of the plaintiff
for cause during the probationary period from
which it followed that he was without jurisdiction
to hear the grievance.
Before Mr. Jolliffe it had been contended that
section 30(2) of the Public Service Employment
Regulations, SOR/67-129, was ultra vires and
accordingly the deputy head has no power to
extend a probationary period.
Mr. Jolliffe quite properly declined to consider
the validity of section 30(2) of the Regulations
which had been raised before him and he proceed
ed on the assumption that section 30(2) was intra
vires and has the force of law.
There is overwhelming authority for Mr. Jolliffe
proceeding as he did.
Whether regulations are ultra vires is for the
courts to determine and not the tribunal. This
proposition is so self-evident and so generally
accepted that it rarely finds expression. Mr. Jol-
liffe was well aware of this proposition and gave
expression to it in his decision as did G. M.
Blackstock, K.C., Chairman of the Board of Public
Utility Commissioners, when he said in In re
Royalite Oil Company Limited and Tannas
[1943] 2 W.W.R. 348 at page 352:
... the Board has no jurisdiction to make any finding as to the
propriety or the legality of the regulations. The Board has
merely had delegated to it certain duties to perform under an
order-in-council. Whether the order-in-council is good or bad is
no concern of the Board; it must take it as it finds it. The Court
alone has the right to adjudicate on such matters and if the
applicant questions either the validity or legality of the order-
in-council it must do so in the proper forum.
In Regina v. Unemployment Insurance Com
mission, Ex parte Heggen (1964) 41 D.L.R. (2d)
436 Aikins J. said at page 442 that if the question:
"Is Regulation 195(3) ultra vires?" were put to
the Unemployment Insurance Commission "The
Commission obviously lacks jurisdiction to deal
with such question if put directly."
Mr. Jolliffe stated:
If the validity of section 30 of the Public Service Employment
Regulations is in doubt, the question is for another jurisdiction.
I am completely in agreement with that state
ment and that statement was undoubtedly the
inspiration of the present action.
In the statement of claim the plaintiff seeks
declaratory relief as follows:
8. The Plaintiff, therefore, claims:
(a) A declaration that Section 30(2) of the Public Service
Employment Regulations is ultra vires;
(b) A declaration that the Defendant had no au
thority to terminate the employment of the Plaintiff under
the purported authority of Section 28(3) of the Public Ser
vice Employment Act;
(c) A declaration that the purported termination of the
Plaintiff's employment by his Employer is null and void and
of no effect whatsoever and that the Plaintiff still retains his
status as an employee as if his employment had not been
terminated; ... .
The sole issue before me is whether section
30(2) of the Public Service Employment Regula
tions is ultra vires.
If I should decide that it is ultra vires then the
plaintiff is entitled to the declaration sought in
paragraph 8(a) of the statement of claim and the
declarations sought in paragraphs 8(b) and 8(c)
would follow automatically.
If I should decide that section 30(2) is intra
vires then the plaintiff is entitled to none of the
relief sought by him.
As I appreciate the submission by counsel for
the plaintiff it is simply that section 30(2) of the
Regulations is ultra vires because it is inconsistent
with section 28 of the Public Service Employment
Act.
Section 28 reads:
28. (I) An employee shall be considered to be on probation
from the date of his appointment until the end of such period as
the Commission may establish for any employee or class of
employees.
(2) Where an appointment is made from within the Public
Service, the deputy head may, if he considers it appropriate in
any case, reduce or waive the probationary period.
(3) The deputy head may, at any time during the probation
ary period, give notice to the employee and to the Commission
that he intends to reject the employee for cause at the end of
such notice period as the Commission may establish for any
employee or class of employees and, unless the Commission
appoints the employee to another position in the Public Service
before the end of the notice period applicable in the case of the
employee, he ceases to be an employee at the end of that
period.
I have not reproduced subsections (4) and (5)
because they have no bearing upon the issue to be
decided.
In Schedule A of the Regulations made by the
Public Service Commission pursuant to the Public
Service Employment Act, which are cited as the
Public Service Employment Regulations and
which Regulations also include section 30(2) pres
ently being impugned, the Commission, by virtue
of Schedule A, has fixed the plaintiff's probation
ary period as six months. It was agreed between
counsel for the parties that the plaintiff was an
employee in the Operational and Administrative
Support Category which is item 2 under Column I
of Schedule A and that the probationary period for
that category, into which the plaintiff falls, is six
months as listed under Column II.
Counsel for the plaintiff then reverts to section
28 (1) and says that the Commission has estab
lished a probationary period of six months appli
cable to the category to which the plaintiff was
appointed from which he concludes that because
the Commission has fixed the probationary period,
as it is entitled to do under section 28(1), there is
nothing for the deputy head to do in this respect
and he is not authorized by section 28 to tamper
with a period of probation fixed by the
Commission.
It was the contention of counsel for the plaintiff
that the authority conferred upon the deputy head
by section 28(2) is restricted to reducing or waiv
ing the probationary period fixed by the Commis
sion when the appointment is made from within
the Public Service.
Because the plaintiff was appointed from with
out the Public Service then even that limited re
striction upon the deputy head would not be appli
cable to the plaintiff.
The only significance attributable to this conten
tion is that it may be illustrative of an overall
legislative intent that a deputy head is only author
ized to reduce or waive a period of probation fixed
by the Commission in this one instance and it is
not contemplated that a deputy head may extend a
probationary period when fixed.
It was also the contention by the counsel for the
plaintiff that by section 28(1) the author
ity to fix the probationary period is the exclusive
purview of the Commission and therefore the prin
ciple of delegatus non potest delegare is appli
cable. However that argument has been effectively
destroyed by counsel for the defendant who
referred me to section 6(1) of the Public Service
Employment Act which reads:
6. (1) The Commission may authorize a deputy head to
exercise and perform, in such manner and subject to such terms
and conditions as the Commission directs, any of the powers,
functions and duties of the Commission under this Act, other
than the powers, functions and duties of the Commission in
relation to appeals under sections 21 and 31 and inquiries under
section 32.
Section 28 is not included in section 6 as a
section under which the powers conferred upon the
Commission cannot be delegated.
Accordingly, in my opinion, the better conten
tion advanced on behalf of the plaintiff is that to
which I have referred above and that is that the
Commission by acting as it did in fixing a proba
tionary period of six months thereby exhausted the
authority to do so leaving nothing to be delegated
to the deputy head.
The powers, functions and duties conferred upon
the Commission by section 28 which the Commis
sion seeks to authorize the deputy head to perform
and exercise is purported to be done by section 30
of the Public Service Employment Regulations
which reads:
30. (1) The probationary period referred to in subsection
(1) of section 28 of the Act for an employee who comes within
a class or group mentioned in Column I of Schedule A is the
period set out opposite that class or group in Column II of the
said Schedule.
(2) The deputy head may extend the probationary period of
an employee but the period of extension shall not exceed the
period for that employee determined pursuant to subsection
(I).
Subsection (1) of section 30 acknowledges that
the probationary period for an employee, such as
the plaintiff, is six months and that that period has
been established by the Commission in Schedule A
to the Regulations. A schedule to the Regulations
is as much a part of the Regulations and as much
an enactment as any other part of the Regulations.
Subsection (2) of section 30, which is the sub
section impugned, authorizes the deputy head to
extend a probationary period of an employee, but
that cannot mean an employee appointed from
within the Public Service because by section 28(2)
of the Act a deputy head may only reduce or waive
a period of probation, subject to the limitation that
the period of extension shall not exceed the proba
tionary period fixed under subsection (1), that is
the period fixed by the Commission by Schedule A
of the Regulations which has also been embodied
in section 30 by reference.
What the Commission has sought to do by
regulation is to fix a minimum probationary period
of six months and to confer authority upon the
deputy head to extend that period with the outside
limit of permitting the deputy head to double the
minimum probationary period fixed by the
Commission.
The reason the Commission has done this is
patently obvious. The Commission recognizes that
the person best qualified to assess a probationary
employee's capabilities is the deputy head and for
the deputy head to do so may require a further
period of time. I cannot refrain from interjecting
that such authority may well redound to an
employee's advantage in that if he does not meas
ure up within a prescribed period of probation he
is given an. extended period, or second chance, to
do so. The Commission seeks to leave the further
period of time, above the minimum fixed, to the
discretion of the deputy head but at the same time
imposing a limitation on that time. There were
several courses open to the Commission to achieve
this end.
It could have fixed the probationary period at 12
months, rather than at six months as it did, which
would coincide with the 12-month period to which
the deputy head is permitted to extend the time. If
that had been done it could not be disputed.
The Commission could have authorized the
deputy head to fix the probationary period of an
employee appointed from without the Public Ser
vice. If this had been done it could not be success
fully disputed.
The Commission adopted neither of these
extremes. Rather it sought to effect a compromise.
The Commission fixed a minimum period and
authorized the deputy head to double that mini
mum period by virtue of section 30(2) of the
Regulations.
If the Commission is itself authorized to fix a
variable period of probation by fixing a minimum
period and reserving unto itself the right to extend
that period so fixed I should then think that the
language of section 6(1) of the Public Service
Employment Act is sufficiently broad to permit of
the Commission delegating that authority to a
deputy head, assuming that the authority to do
this is vested in the Commission.
The first question which arises is, since the
Commission may establish a probationary period
"for any employee or class of employees", whether
the Commission, having fixed a probationary
period for a class of employees as it did in
Schedule A to the Regulations, can then fix a
probationary period of an employee falling within
a class of employees for which a probationary
period has been fixed.
If section 2g (1) had included the words "or
both", which it does not, after the words "any
employee or class of employees" so as to read "any
employee or class of employees or both" then there
would be no doubt that the Commission could fix a
probationary period for a class of employees and a
different period, either greater or less, for an
individual employee within the class for which a
probationary period had been fixed generally—in
short an exception to the generally applicable
period.
Whether that same result follows from the lan
guage used in the section, that is "for any
employee or class of employees" is dependent on
the meaning to be ascribed to the word "or".
Normally the word "or" is disjunctive and the
word "and" is conjunctive except the context in
which either word is used may dictate otherwise.
It has frequently happened in cases on the con
struction of statutes where the courts have held the
word "or" to mean "and" when the context makes
that necessary meaning.
The leading authoritative statement is that of
Lord Halsbury in Mersey Docks and Harbour
Board v. Henderson Brothers (1888) 13 App. Cas.
595 where he said at page 603:
... I know no authority for such a proceeding [turning "or"
into "and"] unless the context makes the necessary meaning of
"or" "and," as in some instances it does; but I believe it is
wholly unexampled so to read it when doing so will upon one
construction entirely alter the meaning of the sentence, unless
some other part of the same statute or the clear intention of it
requires that to be done, as in the case of Fowler v.
Padget.... It may indeed be doubted whether some of the
cases of turning "or" into "and" and vice versâ have not gone
to the extreme limit of interpretation... .
It has been the practice for many years within
the Public Service and when the Public Service
was the Civil Service, to fix a probationary period
on appointment to or within that service and I
assume this was done by virtue of section 28 (1) of
the Public Service Employment Act and Regula
tions thereunder and antecedent legislation and
delegated legislation.
I am also conscious of the cardinal rule in the
legal interpretation of statutes that where two
interpretations are possible one leading to the
result that the enactment is intra vires and the
other to the result that the enactment is ultra vires
the interpretation leading to the validity of the
enactment is to be adopted. But this presupposes
two different interpretations being equally possi
ble.
With these considerations in mind I have exam
ined the Public Service Employment Act with care
to ascertain if this matter comes within the words
used by Lord Halsbury in the Mersey Docks case
(supra) where he said that "or" could be turned
into "and" if the context made that meaning
necessary.
I have been unable to discern any object or
intention of the Public Service Employment Act as
a whole or any other part of that Act which would
justify looking beyond the language of section
28 (1) and accordingly the language of that section
must stand on its own in these respects.
That language, standing as it does, must be
given its plain meaning which is that "or" as used
therein is used in its disjunctive sense and not its
conjunctive sense.
To do otherwise would be tantamount to con
cluding that a mistake had been made in section
28 (1) by using "or" for the word "and" and I
would, in effect, be correcting that mistake. In
order to do so it must be clear from the context
that such mistake was made and I can find no
justification for so finding and Parliament must
have meant precisely what it said.
This being so it follows that when the Commis
sion opted to prescribe a probationary period for a
class of employees as it did by making Schedule A
to the Public Service Employment Regulations the
Commission exercised the option available to it.
The Commission in doing so deprived itself of the
alternative authority to establish a probationary
period for any employee.
The introduction of the adjective "any" before
the word "employee" in the words of section 28(1)
reading "for any employee or class of employees"
does not detract from this conclusion. In my view
"any employee" in the context means "any
employee" other than an employee within a class
for which a probationary period has been fixed.
"Any" is the appropriate adjective since it is used
in a qualitative sense in that it modifies any
employee who may be appointed from without or
from within the Public Service, thereby meaning
an employee of any such sort otherwise there is no
necessity to mention a class of employees.
I therefore conclude that the Commission, by
prescribing a probation period for a class of
employees, has exhausted the authority conferred
upon it by section 28(1) of the Public Service
Employment Act and accordingly no author
ity remains to it which could be delegated to a
deputy head under section 6(1) of the Act.
I reach the same conclusion for yet another
reason which is the determination of the question
already mentioned and that question is whether
the Commission itself can vary a period of proba
tion between certain specific minima and maxima.
The critical words in section 28(1) of the Public
Service Employment Act essential to answer the
question so posed are "until the end of such period
as the Commission may establish".
The answer to the question is dependent on the
meaning of the word "period" as used in this
context.
As I appreciate that meaning it must be a course
of time to run or a time of duration. That presup
poses the element of certainty. I do not think that
the word "period" in this context can mean an
indefinite portion of time in some continuous pro
cess. The word "period", without appropriate
modification, must mean a fixed time and one that
is not subject to prolongation. It is a term certain
and not a term at will and an employee engaged is
entitled to know the terms of his employment.
With this in mind it seems clear to me, in the
circumstances of this particular plaintiff, he was
informed in the letter dated May 29, 1975, advis
ing him of his appointment, Exhibit A to the
agreed statement of facts, as well as giving par
ticulars of the post, that the period of probation
was "six months, in accordance with the Public
Service Employment Regulations". That state
ment to me is one which would be understood by
the recipient to be a categorical statement that his
probationary period was six months. Of course, the
words "in accordance with the Public Service
Employment Regulations" are added but these
additional words would convey to the recipient
that the probationary period was six months
because that was the period prescribed by the
Regulations. No mention was made of the possibil
ity of the probationary period being extended and
if that was intended to be conveyed by the author
in referring to the Regulations then the letter is
ambiguous and must be construed adversely to the
party who drafted the document. Furthermore in
that letter the probationary period was categorical
ly stated to end on December 9, 1975 which is six
months from the date of the plaintiff's appoint
ment.
I merely mention this circumstance in passing as
illustrative of the statement of a fact by a respon
sible officer, acting as a deputy head, upon which
the plaintiff acted but not as a basis for resolving
this matter. I shall determine this matter upon the
sole issue that was raised before me and that is
whether section 30(2) of the Public Service
Employment Regulations was within the compe
tence of the Commission to make.
I therefore conclude that the Commission itself,
in the absence of express authority to do so, cannot
fix an uncertain period of probation or a period
that is subject to prolongation during the course of
a period fixed.
It follows from the conclusion that because the
Commission itself cannot fix a variable period of
probation it cannot delegate authority to do so to a
deputy head.
The Commission by fixing the probationary
period at six months in Schedule A to the Public
Service Employment Regulations, which is a time
certain and there is nothing in the Schedule to the
contrary, has exhausted its authority leaving noth
ing to delegate to a deputy head.
For the twofold reasons expressed I conclude
that section 30(2) of the Public Service Employ
ment Regulations is ultra vires the Commission
and that the plaintiff is entitled to the declaration
sought in paragraph 8(a) of the statement of
claim. The declarations sought in paragraphs 8(b)
and (c) thereof follow as a matter of course.
The plaintiff is also entitled to his taxable 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.