T-2382-84
Jean-Pierre Houle (Plaintiff)
v.
Her Majesty in right of Canada as represented by
the Minister of Labour and Immigration* and
Chairman, Immigration Appeal Board (Defend-
ants)
INDEXED AS: HOULE V. CANADA (MINISTER OF LABOUR AND
IMMIGRATION)
Trial Division, Martin J.—Ottawa, February 16,
17 and 27, 1987.
Public service — Termination of employment — Whether
Vice-Chairman of Immigration Appeal Board a "public offic
er" — Authority in Governor in Council to terminate at
pleasure designation of plaintiff as Vice-Chairman — No
express or implied limitation in contract, in terms of designa
tion, or in statute limiting right of Governor in Council to
terminate office without cause — Immigration Appeal Board
Act, R.S.C. 1970, c. 1-3 (rep. by S.C. 1976-77, c. 52. s. 128(1)).
s. 3(1),(2),(5) — Immigration Act, 1976, S.C. 1976-77, c. 52,
ss. 2(1), 60(1),(5), 61(1),(4), 68, 128 — Interpretation Act,
R.S.C. 1970, c. I-23, ss. 2, 3(1), 22, 23 (as ans. by R.S.C. 1970
(2nd Supp.). c. 29, s. 1(2)). 36(f) — Interpretation Ordinance,
R.O.N.W.T. 1974, c. I-3, s. 2 — Public Service Superannua-
tion Act, R.S.C. 1970, c. P-36 — Royal Canadian Mounted
Police Act, R.S.C. 1970, c. R-9, s. 13(2) — Federal Court
Rules, C.R.C., c. 663. R. 474.
Judges and courts — Judicial independence — Vice-Chair
man of Immigration Appeal Board — Additional duties as
Vice-Chairman administrative rather than adjudicative —
Loss of vice-chairmanship not affecting judicial independence
— Canadian Charter of Rights and Freedoms, being Part I of
the Constitution Act, 1982, Schedule B, Canada Act 1982.
1982, c. 11 (U.K.), s. 11(d).
In May 1968, the plaintiff was appointed to be a member of
the Immigration Appeal Board to hold office during good
behaviour. He was designated Vice-Chairman of the Board in
December 1969. In January 1984, the Governor in Council
terminated the plaintiff's designation as Vice-Chairman. The
plaintiff continues to be a member of the Board.
This is an application for the preliminary determination of
two questions of law: Did the Governor in Council have the
authority to withdraw the vice-chairmanship and, if so, did the
* Editor's note: This is the style of cause as it appears
throughout the proceedings. The Minister's correct title is
Minister of Employment and Immigration.
Governor in Council have the authority to do so at pleasure,
without cause.
Held, both questions are answered in the affirmative and the
plaintiff's action is dismissed.
The provisions of the Immigration Act, 1976 must be read in
conjunction with the Interpretation Act. Since a Vice-Chair
man is a "public officer" within the meaning of section 2 of the
Interpretation Act, the appointment, according to section 22 of
the Act is at "pleasure only, unless it is otherwise expressed in
the enactment or in his commission or appointment" and may,
according to section 23 of the Act, be terminated "in the
discretion of the authority in whom the power of appointment is
vested". The fact that the plaintiff was, according to subsection
61(1) of the immigration Act, 1976, "designated" Vice-Chair
man rather than "appointed" is irrelevant, the two words being
synonymous.
Since Parliament provided "good behaviour" tenure for
members but made no provision for the tenure of the Vice-
Chairman, this implies that sections 22 and 23 of the Interpre
tation Act were meant to apply to the office of Vice-Chairman.
The plaintiff's additional statutory duties as Vice-Chairman
were minimal and procedural or administrative rather than
adjudicative. He had security of tenure for his judicial func
tions. There was no inherent necessity for security of tenure for
the office of Vice-Chairman.
There was no express limitation in contract, in the terms of
his designation, or in the statute limiting the right of the
Governor in Council to terminate him in his office without
cause, nor can any such restriction be found by necessary
implication.
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Melsness and Minister of Social Services and Com
munity Health et al. (1982), 132 D.L.R. (3d) 715 (Alta.
C.A.).
DISTINGUISHED:
McCleery v. The Queen, [1974] 2 F.C. 339 (C.A.);
Malone v. The Queen in Right of Ontariô et al. (1984), 3
C.C.E.L. 61 (Ont. H.C.); Malloch v. Aberdeen Corpora
tion, [1971] I W.L.R. 1578 (H.L.); Wuorinen v. Work
ers' Compensation Board (1983), 1 C.C.E.L. 29
(B.C.S.C.); Reference re Justices of the Peace Act
(1985), 48 O.R. (2d) 609 (C.A.); Valente v. The Queen
et al., [1985] 2 S.C.R. 673.
CONSIDERED:
Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police, [1979] 1 S.C.R. 311; Nova
Scotia Government Employees Association et al. v. Civil
Service Commission of Nova Scotia et al., [1981] 1
S.C.R. 211; 119 D.L.R. (3d) I.
COUNSEL:
Gordon F. Henderson, Q.C. and Martin W.
. Mason for plaintiff.
Dogan D. Akman and J. DePencier for
defendants.
SOLICITORS:
Gowling & Henderson, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
MARTIN J.: Upon joint application by the par
ties and pursuant to Rule 474 of the Federal Court
Rules [C.R.C., c. 663] it was ordered that two
questions of law be determined at a hearing which
took place at Ottawa on the 16th and 17th days of
February 1987.
The parties agreed that the following are the
questions to be determined:
L Did Her Excellency the Governor in Council at the material
date have the authority and power to terminate the designa
tion of the plaintiff as a Vice-Chairman of the Immigration
Appeal Board?
2. If the answer to question 1 is in the affirmative did Her
Excellency the Governor in Council at the material date have
the authority and power to terminate at pleasure, that is to
say, without cause, the designation of the plaintiff as a
Vice-Chairman of the Immigration Appeal Board?
The parties also agreed on the following State
ment of Facts:
I. On the 22nd day of May, 1968, by Privy Council Order
1968-1010, His Excellency the Governor in Council, on the
recommendation of the Minister of Manpower and Immigra
tion, pursuant to Section 3 of the Immigration Appeal Board
Act, appointed the Plaintiff to be a member of the Immigra
tion Appeal Board to hold office during good behaviour.
2. On the 19th day of December 1969, by Privy Council Order
1969-2412, His Excellency the Governor in Council on the
recommendation of the Minister of Manpower and Immigra
tion and the Treasury Board, pursuant to section 3 of the
Immigration Appeal Board Act, designated the Plaintiff,
then a member of the Immigration Appeal Board, to be a
Vice-Chairman of the said Immigration Appeal Board.
3. On the 3rd day of January, 1984, by Privy Council Order PC
1984-1, Her Excellency the Governor in Council, on the
recommendation of the Minister of Employment and Immi
gration pursuant to subsection 61(1) of the Immigration Act,
1976 terminated the designation of the Plaintiff as Vice-
Chairman of the Immigration Appeal Board effective Janu-
ary 2, 1984.
4. The Plaintiff continues to be a member of the Immigration
Appeal Board.
The plaintiff, Jean-Pierre Houle, held two posi
tions on the Immigration Appeal Board, that of
member and that of Vice-Chairman. He was
appointed by the Governor in Council as a
member to hold office during good behaviour
under the provisions of subsections 3(1) and (2) of
the Immigration Appeal Board Act, R.S.C. 1970,
c. I-3.
3. (1) There shall be a board, to be called the Immigration
Appeal Board consisting of not less than seven nor more than
nine members to be appointed by the Governor in Council.
(2) Subject to subsection (3), each member shall be appoint
ed to hold office during good behaviour but may be removed by
the Governor in Council for cause.
He was designated to be a Vice-Chairman of the
Board by the Governor in Council pursuant to
subsection 3(5) of the Act.
3....
(5) The Governor in Council shall designate one of the
members to be Chairman of the Board and two of the members
to be Vice-Chairmen of the Board.
The Immigration Appeal Board Act was
repealed by subsection 128(1) of the Immigration
Act, 1976 [S.C. 1976-77, c. 52] which, by subsec
tion 60(1) provided for the appointment to the
Immigration Appeal Board established under that
Act of members with limited terms. The plaintiff's
term of office as a member was not affected by
subsection 60(1). He was, instead, continued in
• office as a member by virtue of subsection 60(5).
60....
(5) Each member who, immediately prior to the coming into
force of this Act, was a permanent member of the Immigration
Appeal Board established by section 3 of the Immigration
Appeal Board Act, as it read before it was repealed by subsec
tion 128(1) of this Act, continues in office as a member of the
Board and shall hold such office during good behaviour but
may be removed by the Governor in Council for cause.
Similarly section 61(1) provides for the designa
tion of the Vice-Chairman and the plaintiff was
continued in that office by virtue of subsection
61(4).
61. ...
(4) The member who, immediately prior to the coming into
force of this Act, was Chairman of the Immigration Appeal
Board established by section 3 of the Immigration Appeal
Board Act, as it read before it was repealed by subsection
128(1) of this Act, and each member who at that time was a
Vice-Chairman of that Board, shall continue to hold such office
under this Act.
Counsel for the plaintiff submits that having
been designated a Vice-Chairman under subsec
tion 3(5) of the Immigration Appeal Board Act
and continued in office under subsection 61(4) of
the Immigration Act, 1976, the plaintiff's designa
tion cannot be terminated by the Governor in
Council under the provisions of subsection 61(1) of
the latter Act. If that submission were to be
accepted, presumably, in order to properly termi
nate the plaintiff's designation as Vice-Chairman,
the Governor in Council would have to act under
subsection 61(4) of the Immigration Act, 1976
because subsection 3(5) of the Immigration
Appeal Board Act, the original authority for his
designation, has been repealed.
I am unable to accept that argument. While
subsection 61(4) is the source of the plaintiff's
continuation in his office as Vice-Chairman, it is
not the source of his designation as such. Subsec
tion 61(4) provides that he shall continue "to hold
office under this Act" i.e. the Immigration Act,
1976. The only authority for the designation of a
Vice-Chairman under that Act is subsection 61(1)
and it is under that subsection that he holds his
office as Vice-Chairman.
I am reinforced in this view by the fact that
subsection 61(1) of the Immigration Act, 1976 is
in substance the same as subsection 3(5) of the
Immigration Appeal Board Act and thus, pursuant
to paragraph 36(f) of the Interpretation Act,
[R.S.C. 1970, c. I-231, it is not to operate as new
law but is to have effect as a consolidation of the
former enactment.
It is common ground that there is no provision
in either act which gives specific authority to the
Governor in Council to terminate the plaintiff's
designation as Vice-Chairman. Counsel for the
defendants submits that both the designation and
the termination of the designation are administra
tive processes whereby the Governor in Council
assigns persons to perform non judicial work and
that administrative assignments must be at the
unfettered discretion of the Crown.
Alternatively counsel for the defendants submits
that the designation provisions of the two acts
must be read in conjunction with the provisions of
the Interpretation Act relating to appointments to
the public service and the consequent right of the
Crown to terminate those appointments.
Lastly, with respect to the determination of the
first question, counsel for the defendants submits
that there exists, in any event, at common law an
inherent, or prerogative right to terminate the
plaintiff's designation.
Counsel for the plaintiff, on the other hand,
submits that a Vice-Chairman is not a "public
officer" within the meaning of the term used in the
Interpretation Act, that he is not "a person in the
public service of Canada", and, as his office as a
Vice-Chairman is a designated as opposed to an
appointed office, the provisions of the Interpreta
tion Act relating to appointed offices have no
application.
In my view the submission that the provisions of
the Immigration Act, 1976 must be read in con
junction with the Interpretation Act is determina-
tive of the first question and, by necessary implica
tion, the second question as well.
Subsection 3(1) of the Interpretation Act is as
follows:
3. (1) Every provision of this Act extends and applies, unless
a contrary intention appears, to every enactment, whether
enacted before or after commencement of this Act.
The other relevant sections of the Act [s. 23 as
am. by R.S.C. 1970 (2nd Supp.), c. 29, subs. 1(2)]
are as follows:
2. (I) In this Act
"public officer" includes any person in the public service of
Canada
(a) who is authorized by or under an enactment to do or
enforce the doing of an act or thing or to exercise a power, or
(b) upon whom a duty is imposed by or under an enactment;
22. (I) Every public officer appointed before, on or after the
1st day of September 1967, by or under the authority of an
enactment or otherwise, shall be deemed to have been appoint
ed to hold office during pleasure only, unless it is otherwise
expressed in the enactment or in his commission or
appointment.
23. (I) Words authorizing the appointment of a public offi
cer to hold office during pleasure include the power of
(a) terminating his appointment or removing or suspending
him,
(b) re-appointing or reinstating him, and
(e) appointing another in his stead or to act in his stead,
in the discretion of the authority in whom the power of
appointment is vested.
Under the provisions of the Immigration Act,
1976 the plaintiff, in his capacity as a Vice-Chair
man of the Board, is authorized, together with two
other members of the Board, to form a quorum.
He is also authorized, under certain circumstances,
to perform all of the powers and the duties of the
Chairman. Being so authorized it appears to me
that a Vice-Chairman must fall within the inclu
sive statutory definition of "public officer" con
tained in subsection 2(1).
I note as well that the definition of "public
officer" in the Interpretation Act is an inclusive
one, similar to the definition of a public officer
contained in section 2 of the Interpretation Ordi
nance, R.O.N.W.T. 1974, c. I-3, and thus extends,
but does not exclude, the common law meaning of
the term whereby:
... every one who is appointed to discharge a public duty, and
receives a compensation in whatever shape, whether from the
crown or otherwise, is constituted a public officer": Henly v.
Mayor and Burgesses of Lyme (1828), 5 Bing. 92 at p. 107,
130 E.R. 995 at p. 1001, per Best C.J." [See also de Weerdt J.
Re Walton and Attorney-General of Canada et al. 13 D.L.R.
(4th) 379 at p. 389-90.]
Although the matter of the compensation
received by the plaintiff in his capacity as a Vice-
Chairman is not before me in the statement of
facts and thus, I suppose, that fact should not bear
on my decision, both counsel referred to the com
pensation which the plaintiff received in his
capacity as a Vice-Chairman. Counsel for the
defendants referred to it for the purpose of arguing
that its loss, on the plaintiff's termination of his
position as a Vice-Chairman, related only to the
termination of that office and not to the plaintiff's
office as a member of the Board. Counsel for the
plaintiff referred to it for the purpose of arguing
that the termination of the plaintiff's office as a
Vice-Chairman, and the consequent loss of the
compensation associated with that office, amount
ed to an unwarranted interference by the Governor
in Council in the independence of a judicial office.
Insofar as I may refer to the fact of the plain
tiff's compensation in his capacity as a Vice-Chair
man, I conclude, in accordance with the common
law meaning of the term, that the plaintiff was, on
the basis of that meaning, as well as the statutory
definition contained in the Interpretation Act, a
public officer.
Counsel for the plaintiff referred me to section
68 of the Immigration Act, 1976 which provides:
68. For the purposes of the Public Service Superannuation
Act the members appointed under subsection 59(2) and the
members continued under subsection 60(5) shall be deemed to
be employed in the Public Service.
and argued that because the members of the Board
were deemed to be employed in the Public Service
for the purpose of the Public Service Superannua-
tion Act [R.S.C. 1970, c. P-36] there was a clear
implication that for any other purpose they were
not intended to be included.
To deem a person to be included in the Public
Service for the purpose of a particular Act dealing
with pensions in which Act the term "Public Ser
vice" is given a defined meaning does not warrant
the conclusion that the plaintiff, as Vice-Chairman
of a federal tribunal, is not or was not intended by
Parliament, to be in the public service of Canada
within the generically-used meaning of the term as
it appears in the Interpretation Act. In order to
displace what so clearly appears to be the fact that
the plaintiff, as Vice-Chairman, is a public officer
in the public service of Canada, I would have to
find an intention to do so in the Immigration Act,
1976 and that I am not able to do.
Counsel for the plaintiff emphasizes that sec
tions 22 and 23 of the Interpretation Act refer to
the appointment and not to the designation of
public officers and thus, he asserts, they have no
application to the plaintiff's position as a Vice-
Chairman which is a designated and not an
appointed position. 1 attach no particular signifi
cance to the use of the word "designate" in subsec
tion 61(1) of the Immigration Act, 1976 and to the
use of the words "appointed" and "appointment"
in sections 22 and 23 of the Interpretation Act.
The effect of what was done by the Governor in
Council on December 19, 1969 was that the plain
tiff became a Vice-Chairman of the Immigration
Appeal Board, a public officer in the public service
of Canada. Whether he was appointed, constitut
ed, designated, named or called to that office
would nevertheless, in my opinion, subject him to
the limitations imposed by reason of sections 22
and 23 of the Interpretation Act. Had the Gover
nor in Council appointed, constituted, named or
directed that the plaintiff be a Vice-Chairman
rather than designated him as such, he would
nonetheless have been a Vice-Chairman. In my
view a designation under the Immigration Act,
1976 and an appointment within the meaning of
sections 22 and 23 of the Interpretation Act are
synonymous.
Counsel for the plaintiff urges that section 22 of
the Interpretation Act should not apply when there
is anything in the enactment, when read as a
whole, to indicate that an appointment has been
made otherwise than at pleasure and he cites
McCleery v. The Queen, [ 1974] 2 F.C. 339 (C.A.)
in support. In that case Thurlow J., as he then was,
expressed some doubt that appointments of mem
bers of the Royal Canadian Mounted Police were
held at pleasure by virtue of subsection 22(1) of
the Interpretation Act because of the provisions of
subsection 13(2) of the Royal Canadian Mounted
Police Act [R.S.C. 1970, c. R-9] which provided
for contractual terms of engagement not exceeding
five years. There was thus in that case, unlike the
present case, a statutory basis upon which it could
be concluded that Parliament meant to exclude the
application of subsection 22(1) which would other
wise be applicable.
In the Immigration Appeal Board Act, under
which the plaintiff was appointed as a member,
Parliament also excluded the application of sub
section 22(1) with respect to that appointment by
providing that he should hold office during good
behaviour. Had Parliament so desired it could
have enacted a similar provision with respect to his
designation or appointment as a Vice-Chairman.
The fact that it specifically limited the application
of subsection 22(1) in the case of members and
omitted to limit it in the case of Vice-Chairmen
indicates to me that Parliament intended the office
of Vice-Chairman to be held at pleasure.
The matter of public officers holding office at
pleasure has been criticized by the late Chief
Justice Laskin in two decisions, Nicholson v. Hal-
dimand-Norfolk Regional Board of Commission
ers of Police, [1979] 1 S.C.R. 311 and Nova
Scotia Government Employees Association et al.
v. Civil Service Commission of Nova Scotia et al.,
[1981] 1 S.C.R. 211; 119 D.L.R. (3d) 1. In the
former decision he described it as having an ana
chronistic flavour which ought to be re-examined
and in the latter, once again referring to it as an
anachronism, he described it as follows at pages
223 S.C.R.; 10 D.L.R.:
At best, in my view, the power to dismiss at pleasure could be
regarded as an implied term of an engagement which contained
no contrary provision.
In each case the Chief Justice's observations
were obiter dicta and may well have been intended
for Parliament and the legislatures rather than the
courts for, as Gilligan J. of the Ontario Supreme
Court noted in Malone v. The Queen in Right of
Ontario (1984), 3 C.C.E.L. 61, at page 65:
... I note that since the comments by the Chief Justice in those
cases, the Legislature of Ontario has not seen fit to repeal ss. 21
and 27(1) of the Interpretation Act, R.S.O. 1980, c. 219.
Similarly, Stevenson J.A. of the Alberta Court
of Appeal, in declining to follow Chief Justice
Laskin's obiter dicta in Re Melsness and Minister
of Social Services and Community Health et al.
(1982), 132 D.L.R. (3d) 715, at page 721 said:
Determination that public offices are, in this Province, to be
held "at pleasure" represents a determination of the Legisla
ture as reflected in the Interpretation Act.
These views with respect to the legislatures of
Ontario and Alberta and to their respective provin
cial Interpretation Acts apply equally to Parlia
ment and to the Canadian Interpretation Act.
It follows, from the views which I have
expressed thus far, that the plaintiff's designation
or appointment as a Vice-Chairman, which he
holds under subsection 61(1) of the Immigration
Act, 1976 is deemed to be at pleasure under
subsection 22(1) of the Interpretation Act and
liable to be terminated by the Governor in Council
under the provisions of subsection 61(1) by virtue
of the included right to do so, included in subsec
tion 61(1) by reason of subsection 23 (1) of the
Interpretation Act. The answer to the first ques
tion must therefore be in the affirmative.
With respect to the determination of the issues
raised by the second question, counsel for the
plaintiff submits, if I have understood his position
correctly, that Parliament has specifically indicat
ed in the provisions of the Immigration Act, 1976
its intention that sections 22 and 23 of the Inter
pretation Act should not apply. Secondly, he sub
mits, if I cannot find such a specific intention to
exclude the application of sections 22 and 23, it is
nevertheless there by necessary implication on a
fair reading of the Immigration Act, 1976 as a
whole. Finally, even if it has been reserved to the
Governor in Council to terminate the office of a
Vice-Chairman of the Immigration Appeal Board
at pleasure, he says that right cannot be exercised
without according to the plaintiff a measure of
procedural fairness.
I have had some difficulty with the final submis
sion of counsel for the plaintiff in respect of the
issues raised by the second question. His argument
appears to be directed to the method or procedure
of exercising the right to terminate at pleasure
without cause rather than to the existence of the
right itself.
In Part III of his memorandum of fact and law
he says the following:
15. Even ifs. 23(i) of the Interpretation Act applies to extend
the authority of the Governor in Council under s. 61(1) of the
Immigration Act, 1976 to revoke the designation of the Plain
tiff as Vice-Chairman, "at pleasure" does not contemplate that
the designation can be revoked arbitrarily. It cannot be revoked
without according the incumbent a measure of procedural
fairness.
and at the end of his memorandum he concludes:
18. It is accordingly submitted that the Governor in Council
had no authority to make Order in Council P.C. 1984-I
revoking the appointment of the Plaintiff as Vice-Chairman of
the Immigration Appeal Board without according the Plaintiff
basic procedural fairness prior to the exercise of that authority.
There is nothing in the agreed statement of facts
to indicate what actions were taken by the defend
ants by way of notice to the plaintiff, by way of
informing him of the reasons for the intended
termination of his office as Vice-Chairman, or of
any opportunity given to him to make representa
tions or of any hearing which may have been held
prior to his termination. These are generally the
questions which go to the matter of procedural
fairness in the exercise of an admitted right and
not to the exercise of the right. As I understand
the second question, the issue raised is the exist
ence of the right. The question of how it was or
should have been exercised is not before me.
Counsel submits Parliament's specific intention
that the plaintiff's office as a Vice-Chairman be
held during good behaviour is evidenced by subsec
tions 60(5) and 61(4) which together continue him
as a member and as a Vice-Chairman. He submits
that the two offices merged and that, accordingly,
he cannot have his office as a Vice-Chairman
terminated so long as he remains a member of the
Board. Counsel cites no authority for this proposi
tion. The sections do not specifically provide that
the offices merge so that the good behaviour
tenure attaching to that of a member automatical
ly flows to that of a Vice-Chairman, and I can see
no inherent reason why the tenures should be for
identical terms. As I have already mentioned, if
Parliament had wanted the office of Vice-Chair
man to be held during good behaviour, it could
have provided for it in the legislation as it did for
the offices of members under the original Immi
gration Appeal Board Act.
Instead, in the original Act, Parliament
addressed the issue and provided "good behaviour"
tenure for members but made no provision for the
tenure of Vice-Chairman. That implied, to me at
least, that Parliament intended sections 22 and 23
of the Interpretation Act to apply to the office of a
Vice-Chairman. When Parliament enacted the
Immigration Act, 1976 it again addressed the issue
of tenure. It provided for the continuation of "good
behaviour" tenure for members appointed under
the original Act and provided for limited terms for
members appointed under the Immigration Act,
1976. It made no provision with respect to tenure
for the Vice-Chairmen. Under such circumstances,
it seems clear to me, once again, that Parliament
intended sections 22 and 23 of the Interpretation
Act to apply to the office of a Vice-Chairman
which it intended be held at pleasure.
Offices held at pleasure may be terminated
without cause unless the office holder has been
extended some special protection. 1f, as the plain
tiff claims, the right of the Governor in Council is
somehow limited, he must show some express or
necessarily implied statutory, contractual or
regulatory limitation. In Malloch v. Aberdeen
Corporation, [1971] 1 W.L.R. 1578 (H.L.), Lord
Wilberforce at pages 1596 and 1597 dealt with the
question of the dismissal of a teacher who held his
office at pleasure as follows:
I come now to the present case. Its difficulty lies in the fact
that Mr. Malloch's appointment was held during pleasure, so
that he could be dismissed without any reason being assigned.
There is little authority on the question whether such persons
have a right to be heard before dismissal, either generally, or at
least in a case where a reason is in fact given. The case of Reg.
v. Darlington School Governors (1844) 6 Q.B. 682 was one
where by charter the governors had complete discretion to
dismiss without hearing, so complete that they were held not
entitled to fetter it by by-law. It hardly affords a basis for
modern application any more than the more recent case of
Tucker v. British Museum Trustees decided on an Act of
1753—The Times, December 8, 1967.
In Ridge v. Baldwin my noble and learned friend, Lord Reid,
said [1964] A.C. 40, 65: "It has always been held, I think
rightly, that such an officer" (sc. one holding at pleasure) "has
no right to be heard before being dismissed." As a general
principle, I respectfully agree: and I think it important not to
weaken a principle which, for reasons of public policy, applies,
at least as a starting point, to so wide a range of the public
service. The difficulty arises when, as here, there are other
incidents of the employment, or agreement. The rigour of the
principle is often, in modern practice mitigated for it has come
to be perceived that the very possibility of dismissal without
reason being given—action which may vitally affect a man's
career or his pension—makes it all the more important for him,
in suitable circumstances, to be able to state his case and, if
denied the right to do so, to be able to have his dismissal
declared void. So, while the courts will necessarily respect the
right, for good reasons of public policy, to dismiss without
assigned reasons, this should not, in my opinion, prevent them
from examining the framework and context of the employment
to see whether elementary rights are conferred upon him
expressly or by necessary implication, and how far these extend.
The present case is, in my opinion, just such a case where there
are stong indications that a right to be heard, in appropriate
circumstances, should not be denied.
Lord Wilberforce thus affirmed the right to
dismiss without cause and without assigning rea
sons therefore but went on to effectively reinstate
the dismissed teacher, not because of any common
law weakening of the right but because of a statu
tory modification of that right when he found at
page 1599:
If the matter fell to be determined purely by common law,
the appellant, holding office at pleasure, would not be entitled
to a hearing before dismissal: see Lord Reid in Ridge v.
Baldwin [1964] A.C. 40, 65-66. But the common law stands
modified by statute. By the Public Schools (Scotland) Teachers
Act 1882, s. 3, no resolution of a school board for the dismissal
of a certificated teacher was to be valid unless adopted at a
meeting called not less than three weeks previously by circular
sent to each member intimating that such dismissal was to be
considered, and unless notice of the motion for his dismissal
should have been sent to the teacher not less than three weeks
previous to the meeting; and, further, the resolution for dismis
sal was not to be valid unless agreed to by a majority of the full
members of the school board.
That case is quite different from the matter at
hand where the plaintiff is not able to show such a
statutory modification of the right of the Governor
in Council to terminate his position at pleasure.
Similarly Malone v. The Queen in Right of
Ontario et al. (1984), 3 C.C.E.L. 61 (Ont. H.C.)
and Wuorinen v. Workers' Compensation Board
(1983), 1 C.C.E.L. 29 (B.C.S.C.) are of no assist
ance to the plaintiff. In the former case, already
referred to, the Court agreed that what had hap
pened to the plaintiff would, in the private sector,
have amounted to a constructive dismissal but
went on to confirm the right of the Government of
Alberta to discharge at pleasure. In the latter case
the Court found that the Workers' Compensation
Board had replaced its statutory right to terminate
at pleasure by reason of the terms of a collective
agreement which it found to be applicable to the
plaintiff's position. In each case the right to termi
nate at pleasure was not questioned.
In addition to the express limitations which may
be placed on the right to terminate at pleasure
there is also the possibility that the right may, as
Lord Wilberforce observed, be limited by neces
sary implication. In this respect counsel for the
plaintiff likens the plaintiff's position to that of a
Chief Justice of a superior court and the Immigra
tion Appeal Board to that of a court and argues
that by necessary implication Parliament intended
the officers and members of the tribunal to be
independent and that the right to terminate the
plaintiff in his office as a Vice-Chairman is
irreconcilable with the notion of judicial indepen
dence. Accordingly, he submits that, by necessary
implication, the plaintiff has the right to security
of tenure in his office as a Vice-Chairman and
may not have it terminated except for cause. He
argues further that this is particularly so where the
Minister, upon whose recommendation the offices
of Vice-Chairmen are filled, can be a party to
proceedings before the Board.
Counsel does not contest the right of Parliament
to create an Immigration Appeal Board with mem
bers and officers having something less than tenure
during good behaviour. In fact, although under the
Immigration Appeal Board Act members were
appointed on that basis, and thus had the degree of
independence urged by counsel for the officers of
the Board, parliament opted, under the Immigra
tion Act, 1976, to appoint members to limited
terms thus reducing, to that extent at least, their
judicial independence.
The plaintiff was one of those appointed to hold
office as a member during good behaviour under
the earlier Act. His judicial or adjudicative in
dependence was thus secured to the extent
advanced by counsel. I cannot find that his con
tinuation in office as a Vice-Chairman was essen
tial to his independence as a member or that the
loss or termination of that office by the Governor
in Council _ would be an interference, or would
likely be seen as an interference or an attempt to
influence his judicial independence. His additional
statutory duties as Vice-Chairman were minimal
and procedural or administrative rather than
adjudicative. He had security of tenure for his
judicial functions. His office as a member was not
terminated only his office as Vice-Chairman for
which there was in my opinion no inherent necessi
ty for security of tenure.
Two of the cases referred to by counsel for the
plaintiff deal at length with the issue of judicial
independence and security of tenure of judicial
officers. In both cases [Reference re Justices of
the Peace Act (1985), 48 O.R. (2d) 609 (C.A.)
and Valente v. The Queen et al., [1985] 2 S.C.R.
673] at issue was whether the tribunal or court, a
justice of the peace in the first case and an Ontario
provincial court in the second, were independent
tribunals within the meaning of paragraph 11(d)
of the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. ll
(U.K.)].
The security of tenure of the judicial officials
was thus raised in each case. The issue raised
however went to the tenure of those officers as
judicial officers and not to their positions as execu
tive officers within their respective judicial fields.,
Neither case is, in my opinion, of assistance to the
plaintiff. His security of tenure and thus his judi
cial independence is founded on his appointment as
a member of the Immigration Appeal Board and
not on his designation as Vice-Chairman.
It was suggested that the diminution in his
salary by reason of his loss of that designation or,
even if no salary were attached to the position, his
loss of dignity is being terminated from his posi
tion would compromise his ability to function as a
member of the Board. With this suggestion I
cannot agree, for it would have me presume that
the independence of the plaintiffs decisions in his
judicial capacity as a member would be influenced
by his designation or termination as a Vice-Chair
man. The response of Le Dain J. in Valente v. The
Queen et al. (supra) at page 714 in the face of a
suggestion that control by the Executive of certain
benefits would influence the independence of pro
vincial court judges is particularly applicable.
While it may well be desirable that such discretionary ben
efits of advantages, to the extent that they should exist at all,
should be under the control of the judiciary rather than the
Executive, as recommended by the Deschénes report and
others, I do not think that their control by the Executive
touches what must be considered to be one of the essential
conditons of judicial independence for purposes of s. 1 1 (d) of
the Charter. In so far as the subjective aspect is concerned, I
agree with the Court of Appeal that it would not be reasonable
to apprehend that a provincial court judge would be influenced
by the possible desire for one of these benefits or advantages to
be less than independent in his or her adjudication.
The plaintiff's tenure as a member was during
good behaviour. In my view that was a sufficient
assurance of judicial independence for his judicial
functions as a member of the Board. He was not
given express tenure in his office as a Vice-Chair
man. He held it at pleasure and was liable to have
it terminated without cause. There was no express
limitation in contract, in the terms of his appoint
ment or designation, or in the statute under which
he held that office limiting the right of the Gover
nor in Council to terminate him in that office
without cause, nor can I find by necessary implica
tion any such restriction.
In the result both questions are answered in the
affirmative and the plaintiff's action must be dis
missed 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.