John William Robertson (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Cattanach J.—Ottawa, February
17 and 22, 1972.
Public Service—Termination of employment—Power of
deputy head to terminate employment of public servant at
60—Ultra vires—Public Service Superannuation Act, R.S.C.
1970, c. P-36, s. 32(1)(y)—Public Service Superannuation
Regulations, P.C. 1962-137, as amended by P.C. 1968-1156,
s. 20(12).
Section 20(12) of the Public Service Superannuation
Regulations which authorizes a deputy head to terminate
the employment of a public servant at 60 years of age is
ultra vires of the authority conferred by section 32(1)(y) of
the Public Service Superannuation Act, viz, for the Gover
nor in Council to fix a general age for retirement.
When the Governor in Council fixed the general retire
ment age at 65 years in section 20(2) of the Regulations, the
authority bestowed upon it by section 32(1)(y) of the Act
was exhausted. The language of section 32(1)(y) cannot be
construed as authorizing sub-delegation.
ACTION.
M. W. Wright, Q.C. and J. L. Shields for
plaintiff.
C. R. O. Munro, Q.C. and I. Whitehall for
defendant.
CATTANACH J.—The plaintiff is a public serv
ant and had been employed as a District Collec
tions Officer, classified "PM 1 ", with the
Department of National Revenue at the city of
Belleville, in the Province of Ontario since July
15, 1968.
On May 6, 1970 the plaintiff attained the age
of 60 years.
By letter dated January 20, 1971 the Deputy
Minister of the Department of National Reve
nue advised the plaintiff that by reason of
reports to him related to the plaintiff's perform
ance of his duties he was satisfied that because
of the plaintiff's age there was no possibility of
the plaintiff satisfactorily performing his
assigned duties in the foreseeable future. There
fore by virtue of the authority vested in the
Deputy Minister pursuant to section 20(12) of
the Public Service Superannuation Regulations,
the Deputy Minister notified the plaintiff of the
termination of his employment "for reason only
of age". The effective date of the notice was
specified to be February 1, 1971 and the effec
tive date of the termination of the plaintiff's
employment was July 31, 1971.
The plaintiff seeks a declaration that section
20(12) of the Public Service Superannuation
Regulations, P.C. 1962-137, as amended by
P.C. 1968-1156 is ultra vires and that accord
ingly the Deputy Minister had no authority to
terminate the plaintiff's employment by virtue
of that regulation.
At the outset of the trial counsel for the
parties agreed that there was no dispute as to
the facts, that the termination of the plaintiff's
employment was by reason of his age and that
the sole issue before me was the validity of
section 20(12) of the Public Service Superan-
nuation Regulations.
In the plaintiff's prayer for relief there was a
request for an injunction restraining Her Majes
ty from terminating the plaintiff's employment
and for damages in the event it should be found
that the termination of the plaintiff's employ
ment was unlawful.
Counsel for the plaintiff abandoned the
request for an injunction and the quantum of
plaintiff's damages was agreed upon between
counsel in the event it should be found that the
regulation under attack is ultra vires.
During the course of argument it became
evident that the issue was further confined to a
very narrow limit.
Section 20(12) of the Public Service Superan-
nuation Regulations is delegated legislation. In
order for such subordinate legislation to be
valid it must be an exercise of power authorized
by a statute.
Counsel for the defendant contends that the
authority for the Governor in Council to enact
the regulation set forth in section 20(12) is
contained in section 32(1)(y) of the Public Ser
vice Superannuation Act, R.S.C. 1970, c. P-36,
whereas counsel for the plaintiff contends that
it is not.
Section 32(1)(y) of the Public Service Super-
annuation Act reads as follows:
(y) notwithstanding any other Act of the Parliament of
Canada, but subject to subsection (11), providing that, upon
attaining such age as is fixed by the regulations, a contribu
tor shall cease to be employed in the Public Service unless
his continued employment therein is authorized in accord
ance with such regulations, and prescribing the circum
stances under which and the conditions upon which he may
continue to be employed in the Public Service after he has
attained that age ....
Section 20(12) of the Public Service Superan-
nuation Regulations (supra) appears under the
title "When Persons Cease to be Employed"
and reads as follows:
(12) Notwithstanding anything in this section, a deputy
head, with the concurrence of the Civil Service Commis
sion, may at any time, for reason only of age, terminate the
employment of a contributor who has attained sixty years
of age, but who has not attained sixty-four years and six
months of age, if the deputy head gives to the contributor at
least six months notice of termination of employment.
By P.C. 1968-1156 section 20(12) was re-enact
ed with the words "with the concurrence of the
Civil Service Commission" omitted. The effect
of this amendment is that the termination of the
employment of a contributor who has attained
60 years of age is a decision at the sole discre
tion of the deputy head.
The right to review the legislative history of
an Act in order to clear up any doubt as to the
meaning of an Act is supported by the highest
authority, and is generally recognized as a
proper method of assisting in ascertaining the
true intent of the legislature.
Counsel for each party conducted me on an
extensive review of the pre-existing law in sup
port of their rival contentions.
Counsel for the plaintiff referred to the enact
ment by Parliament of the Public Service
Employment Act (R.S.C. 1970, c. P-32) in 1967.
Basically this statute, as is indicated in the long
title "An Act respecting employment in the
Public Service of Canada", governs the selec
tion and appointment of persons to and within
the Public Service, the tenure of office, periods
of probation, layoffs and the release of
employees for incompetence and incapacity.
Section 24 provides that the tenure of office
of an employee is during Her Majesty's pleas
ure subject to other provisions in the Act or any
other Act or regulations thereunder.
By section 31 release of an employee for
incompetence and incapacity or reduction to a
lower position is initiated by the deputy head by
his recommendation to the Public Service Com
mission. The affected employee is granted the
right to appeal. This is in contrast of section
20(12) of the Public Service Superannuation
Regulations which vests the sole discretion to
terminate the employment of a contributor by
reason of age only in the deputy head.
Again in 1967 section 5(1)(e) of the Financial
Administration Act (R.S.C. 1970, c. F-10) was
amended to provide that the Treasury Board
may act on all matters relating to determination
of terms and conditions of employment of per
sons therein. By virtue of section 7 of that Act
and regulations thereunder the function of the
Treasury Board is to exercise jurisdiction over
matters of discipline or misconduct and may
prescribe financial and other penalties therefor
including suspension and discharge. By section
106, P.C. 1967-1968 of the Public Service
Terms and Conditions of Employment Regula
tions enacted under section 7 of the Financial
Administration Act it is provided that subject to
any enactment of the Treasury Board matters
of discipline are delegated to the deputy head
subject to the express reservation that the dis
charge of an employee for disciplinary reasons
must be with the approval of the Treasury
Board.
On the other hand the Public Service Super-
annuation Act as the title implies has for its
general purpose the provision of an annuity or
other benefits to every public servant who is a
contributor to the plan. It contains detailed
provisions as to the rights and obligations of
contributors and their dependants and the rights
and obligations of the employer. Counsel for
the defendant has suggested that a retirement
age is a necessary incident to the general pur
pose of providing a pension. As illustrative
thereof he traced the history of the antecedent
legislation.
The first Parliament of Canada passed an
"Act for better ensuring the efficiency of the
Civil Service of Canada, by providing for the
superannuation of persons employed therein."
(S.C. 1870-71, c. 4.)
The use of a preamble to a statute is rare in
modern times but where there is a preamble it
may be usefully looked at as a guide to ascer
tain the subject-matter, scope and object of the
statute subject to the qualifications that where
the enacting part is clear and unambiguous, the
preamble cannot be resorted to to control, cut
down or restrict it and where the enacting part
is ambiguous the preamble can be resorted to to
explain it.
The initial Superannuation Act contained a
preamble and for the above reasons it is expedi
ent to quote that preamble.
WHEREAS, for better ensuring efficiency and economy in
the Civil Service of Canada, it is expedient to provide for
the retirement therefrom, on equitable terms, of persons,
who from age or infirmity cannot perform the duties
assigned to them.
By section 1 of that Act the Governor in
Council could grant a superannuation allowance
to an employee who attained the age of 60
years. By section 5 upon the offer of a superan-
nuation allowance retirement was compulsory.
It would, therefore, appear that retirement at
the age of 60 was compulsory if the superan-
nuation allowance was offered, but that the
Governor in Council could extend the employ
ment of a person after 60 years of age by the
simple expedient of not offering a superannua-
tion allowance. The superannuation allowance
could also be offered to a person under 60
years of age but that person if physically and
mentally fit might be called upon to serve again.
The broad scheme of the Act appears to have
been that the general age of retirement was 60
years and before or after 60 years of age retire
ment was discretionary the whole dependent
upon the offer of a superannuation allowance at
the discretion of the Governor in Council.
There was no change in the general age of
retirement until 1924.
The Civil Service Superannuation Act 1924
(S.C. 1924, c. 69) provided in section 10(2) that
no person shall be retained in the Civil Service
beyond the age of 70 years and in section 5(a)(i)
that superannuation may be granted to a person
who has attained 65 years of age.
The general retirement age was fixed at 65
years and the compulsory retirement age was
fixed at 70 years.
This remained the case until 1947. By Stat
utes of Canada 1947, chapter 54 amendments
were made to the Superannuation Act whereby
the general retirement age was fixed at 60 years
and retirement at the age of 65 years was com
pulsory subject to continued employment after
that age under prescribed conditions. This
remained so until the passage of the Superan-
nuation Act, in 1952-53 (S.C. 1952-53, c. 47).
This statute with amendments is in the 1970
Consolidation as the Public Service Superan-
nuation Act (R.S.C. 1970, c. P-36).
This statute does not specifically provide for
the general age for the retirement of contribu
tors, as was the case in the former statutes, but
Parliament adopted the expedient of leaving the
matter to be dealt with by regulation.
From the foregoing review of the antecedent
legislation it is clear that the subject-matter of
tenure of office of an employee falls under the
Public Service Employment Act. The release of
an employee for incompetence or incapacity is
also governed by that Act with the right of
appeal as provided therein. Under the Financial
Administration Act and regulations thereunder
the authority to discharge an employee for dis
ciplinary reasons is vested in the Treasury
Board which has delegated that authority to the
deputy head but any action by the deputy head
in this respect is subject to the approval of the
Treasury Board. A remedy is provided against
disciplinary action by way of grievance proce
dure under the Public Service Staff Relations
Act R.S.C. 1970, c. P-35.
In contrast to the release of an employee for
incompetence and incapacity and for discharge
for disciplinary reasons there is no remedy to
an aggrieved contributor whose employment
has been terminated by the deputy head by
reason only of age under section 20(12) of the
Public Service Superannuation Regulations.
It is clear that the tenure of office of an
employee, his release for incompetence and
incapacity or discharge for disciplinary reasons
are not the subject-matters of the Public Service
Superannuation Act. The subject-matter of the
Public Service Superannuation Act is to provide
for the retirement of public servants upon pen
sion upon the attainment of a certain age. The
entitlement to a pension and the cessation of
employment so as to be entitled to that pension
are inextricably interwoven and in that respect
cessation of employment on attaining a certain
age is the subject-matter of this legislation.
The history of the legislation indicates that
the scheme of the legislation which has been
followed by Parliament until the enactment of
the present Superannuation Act is that a general
age of retirement has been fixed followed by a
later age when retirement is compulsory subject
to employment being continued after those ages
when prescribed conditions exist.
The scheme implemented in the Public Ser
vice Superannuation Regulations may be
summarized.
In section 20(2) thereof it is provided that
subject to the section a contributor shall cease
to be employed upon attaining 65 years of age.
This age is, in my view, the general retirement
age of all public servants.
By virtue of section 20(4), (5) and (6) a
contributor may continue to be employed until
he attains 70 years of age on approval of the
deputy head within the specific or general
authority of the appropriate Minister if the con
tributor's salary is less than $13,500. If the
salary of the contributor is $13,500 or more
then the contributor may be continued in his
employment until he attains 70 years of age if
the deputy head so recommends and that
recommendation is approved by the Treasury
Board. The continuance of employment after
the age of 65 until the age of 70 years is done
from year to year.
By section 20(8) provision is made for the
continuance of employment beyond the age of
70 years.
This conforms with the plan adopted by Par
liament in the previous legislation on superan-
nuation embodied in the statutes themselves.
Up to this point the regulations provide for a
general retirement age of 65 years with provi
sion for the continuance of the contributor's
employment thereafter.
However by section 20(12) (which is the
authority under which the deputy head acted in
terminating the employment of the plaintiff
herein) the deputy head on his own initiative
terminated the employment of a contributor by
reason of the contributor having attained the
age of 60 years and he may terminate a con
tributor's employment at any time between the
age of 60 years and the age of 64 years and 6
months without the concurrence or approval of
any other body and from which decision of the
deputy head there is no recourse.
Section 11 of the Public Service Superannua-
tion Act provides for the annuity or options
available to a contributor when the contributor
has less than five years pensionable service.
Section 11(1)(a) reads as follows:
(a) if he ceases to be employed in the Public Service,
having reached sixty years of age, for any reason other than
misconduct, or ceases to be employed in the Public Service
by reason of having become disabled, ... .
Then the contributor's right to an annuity, or
the return of contributions are specified.
Similarly in section 12 of the Public Service
Superannuation Act the rights of a contributor
with five or more years of pensionable service
are set forth.
Section 12(1)(a) reads as follows:
(a) if he ceases to be employed in the Public Service,
having reached sixty years of age, for any reason other than
misconduct, he is entitled to an immediate annuity; ....
There was no evidence as to how many years
of pensionable service the plaintiff had in order
to determine if he fell under section 11 or
section 12 but that is irrelevant to the issue
before me.
The significance of sections 11 and 12 quoted
immediately above is that a contributor, if he
ceases to be employed in the public service, is
entitled to a pension at 60 years of age.
If the contributor's employment is terminated
by reason of misconduct, which is done under
the provisions of the Financial Administration
Act and the regulations thereunder, that possi
bility is expressly contemplated by sections 11
and 12 of the Public Service Superannuation
Act.
The contributor's employment might also
cease by reason of incompetence or incapacity.
This may be done under the provisions of the
Public Service Employment Act.
It is also possible that the contributor's
employment might be terminated by the exer
cise of Her Majesty's pleasure also under the
Public Service Employment Act.
The only other possibility as to when a con
tributor might cease to be employed upon
attaining the age of 60 years (to the exclusion of
section 20(12) of the Public Service Superan-
nuation Regulations) would be that when the
contributor reached that age he voluntarily
resigned his position, that is by the initiative of
the employee. However I cannot construe sec
tions 11 and 12 as indicating that a contributor's
employment is automatically terminated by
reason of the attainment of the age of 60 years.
In my view the purpose of these sections is that
the contributor shall be entitled to a pension at
that age if he desires to take it by terminating
his employment on his own initiative by resign
ing. It seems to me that whether a contributor
elects to resign and take his pension at 60 years
of age is left to the contributor's discretion. The
contributor might not elect to resign when he
attains 60 years of age. He might well postpone
that decision until any time between the ages of
60 and 65 years. I am fortified in this view in
that by section 20(2) of the Public Service
Superannuation Regulations it is provided that a
contributor ceases to be employed upon attain
ing 65 years of age. That is the general retire
ment age stipulated for all contributors when
cessation of employment is automatic but sub
ject to continuance thereafter under prescribed
conditions. I have found no similar provisions
in any statute or regulations, nor was my atten
tion directed to any whereby the continuance of
employment after 60 years of age is subject to
any conditions as is the case when 65 years is
attained.
The only other possibility is that a contributor
might cease to be employed at 60 years of age
or between 60 years and 64 years, 6 months
when his employment has been terminated by
the deputy head by reason of age under section
20(12) of the Public Service Superannuation
Regulations which is, of course, the very regula
tion which by this action is sought to be
impugned.
The determination of the question of whether
section 20(12) of the regulations is within the
authority delegated to the Governor in Council
must be decided primarily by reference to the
pertinent section of the Public Service Superan-
nuation Act.
It is common ground that the delegation of
the authority to the Governor in Council to fix
the retirement age of a contributor is contained
in section 32(1)(y) of the Public Service Super-
annuation Act.
The regulations do provide in section 20(2)
that a contributor shall cease to be employed
upon attaining 65 years of age. The succeeding
subsections provide the exceptions whereby
that employment may be continued to the age
of 70 years and even longer.
But section 20(12) provides that notwith
standing that the general age of retirement
which is fixed in section 20(2) at 65 years the
deputy head may terminate the employment of
a contributor by notice to the employee at any
age after 60 years until 64 years and 6 months.
Section 20 and the subsections thereof are
ranged under the title "When persons cease to
be employed". In section 20(2) the effective
words are that a contributor shall "cease to be
employed" upon attaining 65 years of age. In
section 32(1)(y) of the Public Service Superan-
nuation Act it is provided that, "upon attaining
such age as is fixed by the regulations, a con
tributor shall cease to be employed" unless his
employment is continued. The use of the words
"cease to be employed" in the contexts in
which they appear connotes the element that
employment ends automatically upon the attain
ment of a certain age. No positive act is
required by any person. The result follows from
the effluxion of time. On the other hand the
words in section 20(12) are that the deputy
head "may terminate the employment" of a
contributor who has attained the age of 60
years for that reason only. Certainly if a con
tributor's employment is "terminated" it also
"ceases", but the word "terminate" as used in
this context connotes a positive act and not
merely the passage of time as is the connotation
implicit in the words "ceases to be employed"
in the pertinent context that the cessation of
employment follows inexorably and automati-
cally_upon the passage of time.
The authority contemplated by section
32(1)(y) is, in my view, that the Governor in
Council is to fix a general age for retirement of
all contributors with exceptions for continua
tion of employment beyond that age. This sec
tion of the Act states that "upon attainment of
the age fixed by the regulations", which was
fixed by section 20(2) of the regulations at 65,
then continues to state that employment may be
continued after that age. This continuance of
employment is covered in the regulations.
But section 20(12) of the regulations provide
that, notwithstanding that the general retirement
age is fixed by Becton 20(2) at 65 years, never
theless the deputy head may terminate the con
tributor's employment at 60 years of age. This,
in my view, is beyond the authority contemplat
ed in section 32(1)(y) of the Act.
It seems to me that when the Governor in
Council fixed the general retirement age at 65
years in section 20(2) of the regulations the
authority bestowed upon it by section 32(1)(y)
of the Act was exhausted.
Accordingly I conclude that section 20(12) of
the regulations is ultra vires.
I am further supported in this view because,
in my opinion, section 32(1)(y) contemplates the
authority thereby conferred being exercised by
the Governor in Council and the delegation of
that authority to the deputy head to terminate a
contributor's employment at an earlier age than
is fixed by the Governor in Council offends
against the rule in the maxim "Delegatus non
potest delegare". I am unable to find in section
32(1)(y) any language that can be construed as
an authorization of sub-delegation. If that was
the intention of Parliament it must be in express
and unequivocable terms. Nor can I construe
regulation 20(12) as being merely a direction by
the Governor in Council to the deputy head as
to how he shall exercise his responsibility
because I have found no legislation which
bestows that responsibility upon the deputy
head, nor did either counsel direct me to legisla
tion to that effect.
Accordingly there shall be a declaration (a)
that section 20(12) of the Public Service Super-
annuation Regulations, P.C. 1962-137 as
amended by Order-in-Council, P.C. 1968-1156
is ultra vires; and (b) that the Deputy Minister
of National Revenue had no authority to termi
nate the employment of the plaintiff under the
purported authority of section 20(12) of the
said regulations.
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.