T-3781-77
Alicia Catherine Jackman (Plaintiff)
v.
The Queen (Defendant)
T-3782-77
Jeffrey Bernard Fonceca (Plaintiff)
v.
The Queen (Defendant)
T-3783-77
Siu Lan Gabriella Cheong (Plaintiff)
v.
The Queen (Defendant)
T-3784-77
Dianne Marie Campbell (Plaintiff)
v.
The Queen (Defendant)
T-3785-77
Surendra Narayan Rao (Plaintiff)
v.
The Queen (Defendant)
T-4499-77
Linda Dimitroff (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Dubé J.—Toronto, June 5; Ottawa,
June 7, 1979.
Public Service — Prerogative writs — Declaration — Plain
tiffs employed by Ministry of Transport for period ending
December 31, 1978 — Services were terminated by employer
before that date — Plaintiffs seek declaration that employer
had no authority to terminate their employment, and that the
terminations were null and void, and also seek compensation
— Whether or not s. 25 of the Public Service Employment Act
should be interpreted as meaning that an employee who is
appointed for a specified period may not be laid off before the
expiration of that term, whether or not his services are
required — Public Service Employment Act, R.S.C. 1970, c.
P-32, ss. 24, 25, 29(1),(2).
ACTION.
COUNSEL:
M. W. Wright, Q.C. for plaintiffs.
Duff Friesen for defendant.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
Dust J.: These six consolidated actions were
heard on common evidence and these reasons as
well as this judgment apply mutatis mutandis to
all six cases.
As a result of a pre-trial conference counsel
agreed at the trial not to call viva voce witnesses
but to rest their case on the admissions in the
pleadings, the agreed statements of facts and the
exhibits filed by consent at the opening of the
hearing.
The plaintiffs were employed by the defendant
with the Toronto Area Airports Project of the
Ministry of Transport for a specified period expir
ing on the 31st day of December 1978. By letters
they were notified by the Regional Administrator,
Canadian Air Transportation, that their services
were terminated before that period. The reason for
early termination is explained in the first para
graph of one of the letters filed in exhibit:
As all of you are aware, the Cabinet decided last Thursday,
September 25th, that the Federal Government would not pro
ceed with the construction of Stage A at Pickering. It did so in
recognition of the recent stand by the Government of Ontario,
namely, that it opposed the construction of the airport and
would not provide the necessary services to it, such as roads,
water, and sewer facilities.
For the purposes of these actions the parties are
agreed upon the following facts:
1. The Plaintiff was laid off because the Defendant no longer
required his (her) services because of lack of work or because of
the discontinuance of a function;
2. As a result of having been laid off before the expiry of the
specific period for which he (she) was appointed, he (she) lost
income in the sum of $ (the amount varies in each case)
and that sum would be sufficient to compensate the Plaintiff
for wages or salary or any other benefits or privileges which he
(she) would have received if he (she) had not been laid off.
Plaintiffs, therefore, claim a declaration that the
employer had no authority to terminate their
employment prior to December 31, 1978; a decla
ration that the purported terminations were null
and void; and a judgment to compensate in the
amounts aforementioned.
Obviously, this is not an action for breach of
contract of employment as between subjects. At
common law the tenure of office in the public
service was at the pleasure of the Sovereign. Such
employment is now governed by statute and in the
instant case by the Public Service Employment
Act, R.S.C. 1970, c. P-32. The gist of the case
rests on the interpretation of the three following
sections of the Act.
24. The tenure of office of an employee is during the pleas
ure of Her Majesty, subject to this and any other Act and the
regulations thereunder and, unless some other period of
employment is specified, for an indeterminate period.
25. An employee who is appointed for a specified period
ceases to be an employee at the expiration of that period.
29. (1) Where the services of an employee are no longer
required because of lack of , work or because of the discontinu
ance of a function, the deputy head, in accordance with regula
tions of the Commission, may lay off the employee.
(2) An employee ceases to be an employee when he is laid
off pursuant to subsection (1).
Learned counsel for the several plaintiffs argues
that section 25 means that an employee who is
appointed for a specified period may not be laid
off before the expiration of that period, whether
his services are required or not.
That is not my reading of those provisions in the
context of the Act which must be read as a whole.
It is common ground that the six plaintiffs were
"employed" as defined in subsection 2(1): they
were "person [s] employed in that part of the
Public Service to which the Commission has the
exclusive right and authority to appoint persons".
Under the provisions of section 24 their tenure was
"during the pleasure of Her Majesty", that is,
basically at the mercy of the Sovereign as at
common law. The benevolence of the Sovereign,
however, is now tempered by the provisions of
legislation: "subject to this and any other Act and
the regulations thereunder".
By virtue of section 24 the tenure of public
employees is for an "indeterminate period", unless
"some other period" is specified. In the instant
case, the plaintiffs were appointed for a specific
period expiring on December 31, 1978. Under the
provisions of section 25, they would cease to be
employees after that date; but that does not mean
that their appointments could not possibly cease
before that date.
As expressed by Jackett C.J. in Wright v. Public
Service Staff Relations Board [1973] F.C. 765,
present public service legislation envisages various
means by which a person may become separated
from employment. At pages 775 et seq. he lists the
various means, namely:
1. Resignation (section 26 of the Act supra).
2. Rejection (section 28).
3. Expiration of term (section 25).
4. Abandonment (section 27).
5. Lay-off (section 29).
6. Discharge or release (sections 24 and 31, and
paragraph 7(1)(f) of the Financial Adminis
tration Act).
The employment of an employee appointed for a
specified period of time is "subject to this and any
other Act" as well as an employee appointed for an
indeterminate period: both may be laid off under
section 29 if their services are no longer required
because of lack of work or because of the discon
tinuance of a function. It being admitted that the
latter situation prevailed at the project where the
plaintiffs were employed, it follows that their
employer had every right, under the Act as I read
it, to lay them off.
The actions are 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.