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A-1787-83
Fred Ager (Appellant) (Plaintiff)
v.
The Queen (Respondent) (Defendant)
Court of Appeal, Pratte, Hugessen and Mac- Guigan JJ.—Ottawa, September 11, 1984.
Public service — Appeal from determination of question of law — Plaintiff air traffic controller in supervisory capacity transferred to non-operational service for partisan Union activities — Trial Judge finding conduct prior to reassignment relevant to question of whether plaintiff ceased "otherwise than voluntarily to be employed" — Appeal allowed — State ment of defence indicating plaintiff not wishing to accept transfer — Pleading going to intention, negating possibility of voluntary cessation of operational service — Allegations regarding conduct prior to transfer irrelevant to question of whether ceased employment otherwise than voluntarily — Public Service Superannuation Act, R.S.C. 1970, c. P-36, ss. 12.12 (as enacted by S.C. 1980-81-82-83, c. 64, s. 3), 12.13 (as enacted idem).
COUNSEL:
Thomas A. McDougall, Q.C. and James R.
Hendry for appellant (plaintiff).
John H. Sims for respondent (defendant).
SOLICITORS:
Perley-Robertson, Panet, Hill & McDougall, Ottawa, for appellant (plaintiff).
Deputy Attorney General of Canada for respondent (defendant).
The following are the reasons for judgment delivered orally in English by
HUGESSEN J.: This is an appeal from a judg ment of Addy J. [[1984] 1 F.C. 157 (T.D.)], determining prior to trial two questions of law as follows:
1. Pursuant to Rule 474 that the following questions of law be determined:
(a) 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 'other- wise than voluntarily to be employed' in operational ser-
vice 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 Superannuation Act?
(b) 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 its files number 166-2-3413 and 166-2-3414 and in its deci sion dated November 14, 1978 in respect of its file number 166-2-167.
(Order of Jerome A.C.J., 9 September, 1983, Case, pp. 17-18.)
Addy J., answered the first question in the affirmative, the second in the negative. Plaintiff appeals from that part of the order answering the first question; defendant has appealed from that part answering the second question.
Plaintiff was an air traffic controller in opera tional service. He was in a supervisory function. In the course of a labour dispute which apparently engendered bitter divisions not only between man agement and labour but also between the members of the Union amongst themselves, plaintiff took a highly partisan position and engaged in certain activities which, in the view of his superiors, destroyed the appearance of impartiality and fair ness necessary to the performance of his duties. As a result he was transferred to non-operational service.
Pursuant to the Public Service Superannuation Act [R.S.C. 1970, c. P-36], air traffic controllers in operational service enjoy highly preferential retirement benefits. Where a controller ceases to be in operational service, some benefits may con tinue or additional benefits may accrue depending upon the manner of the cessation.
The statute distinguishes between the air con troller who voluntarily ceases to be employed in operational service, who is dealt with in section 12.12 [as enacted by S.C. 1980-81-82-83, c. 64, s. 3], and the one who ceases such service "other- wise than voluntarily ... for any reason other than misconduct", who is dealt with in section 12.13.
The scheme of the enactment, therefore, envis ages three possible ways in which a controller may cease operational service:
1. involuntary cessation due to misconduct,
2. other involuntary cessation,
3. voluntary cessation,
and provides for different consequences flowing therefrom. There is no question of misconduct in the present case, it being admitted that plaintiffs transfer was not for this reason. The question therefore is whether he ceased operational service voluntarily or involuntarily.
A voluntary cessation is one which is intended and results from the will of the employee. If such intention is lacking, the cessation is other than voluntary.
The intention of an actor may be expressed or it may be implied from his actions. Here, on defend ant's own pleading, plaintiff has not expressed the intention to cease operational service, but rather the opposite:
... the plaintiff did not wish to accept this transfer of duties and did so under protest (Defence, paragraph 6(h), Case, p. 10).
While there may be circumstances in which an intention opposite to what is expressed may be deemed to exist despite such expression, the plead- ings do not contain any suggestion that such is the case here. Indeed, in my view, the quoted para graph goes further than the simple expression of plaintiffs intention but goes to the intention itself so as to negate any possibility of a voluntary cessation of operational service. Read in this light, the allegations regarding plaintiffs conduct prior to his transfer indicate that, at the most, he volun tarily acted in such a way as to justify his employ er in imposing a transfer upon him. That is irrele vant to the determination of the question of whether he intended such transfer or, in the words of the statute, whether he ceased otherwise than voluntarily to be employed in operational service.
The appeal should be allowed and the first question put in the order of Jerome A.C.J., of 9
September, 1983, should be answered in the nega tive. That being so, no answer should have been given to the second question.
PRATTE J. concurred.
* * *
The following are the reasons for judgment delivered orally in English by
MACGUIGAN J.: I concur and I would add only a few words.
Both the ordinary meaning of its words and the overall context provided by a statute are relevant to its interpretation. It is not necessary for this case for us to decide in a final way how section 12.13 of the Public Service Superannuation Act, R.S.C. 1970, c. P-36, should be interpreted, and I specifically reserve the question of what degree of reckless conduct might be considered to be suf ficiently assimilable to intention as to constitute a voluntary act.
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