A-232-79
Donald C. Kelso (Appellant)
v.
The Queen (Respondent)
Court of Appeal, Jackett C.J., Le Dain J. and
Kerr D.J.— Ottawa, September 12 and 28, 1979.
Public Service — Position occupied by appellant declared
bilingual — Appellant, a unilingual air traffic controller,
accepted transfer to Cornwall and commuted there from his
home near Montreal — Trial Division refused to issue judg
ment declaring appellant's entitlement to remain in or to be
reinstated in his original position with full salary and benefits,
and declaring his right to be reimbursed for his commuting
costs — Appeal from Trial Division's decision — Public
Service Employment Act, R.S.C. 1970, c. P-32, ss. 20, 31, 39.
This is an appeal from the Trial Division's dismissal of an
action for a declaration in respect of appellant's status in the
Public Service. Appellant, a unilingual, anglophone air traffic
controller, occupied a position declared to be bilingual. He was
transferred from Montreal to Cornwall, but continued to live
on a farm outside Hudson Heights, Quebec, and commuted to
Cornwall. The declarations sought, and refused by the Trial
Division, were that appellant was entitled (a) to remain in or to
be reinstated in his original position with full salary and
benefits and (b) to be reimbursed for all extra costs incurred by
him as a result of his commuting to Cornwall from Hudson
Heights.
Held, the appeal is dismissed. Neither the facts alleged by
the statement of claim nor the facts as they appear from the
record support the granting of a declaration that the appellant
is entitled to remain in or be reinstated to position TACQ-0274.
The case proceeded on the basis that appellant accepted a
"transfer" from that position to one in Cornwall. "Accepting" a
"transfer" means that he accepted an appointment to the
Cornwall position, which would automatically remove him from
position TACQ-0274 as the two positions could not be held by
the same person at the same time. The case also proceeded on
the view that appellant was duly appointed to the Cornwall
position. Assuming such a "transfer" by consent, there cannot
be a declaration that appellant is entitled to be "reinstated" in
that position. Although the appellant accepted the Cornwall
position under protest and under pressure, there is nothing to
indicate that the officers concerned did not act under a bona
fide belief that the appellant had become a unilingual incum
bent in a bilingual position. Even had there been a lack of bona
fides, the result would not necessarily have been that his
consent to the transfer was a nullity. If it was not a nullity,
appellant is not entitled to the first declaration sought. The
second declaration sought is dependent upon the success of the
first.
APPEAL.
COUNSEL:
J. P. Nelligan, Q.C. for appellant.
W. L. Nisbet, Q.C. for respondent.
SOLICITORS:
Nelligan/Power, Ottawa, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is an appeal from a judg
ment of the Trial Division [[1979] 2 F.C. 726]
dismissing an action for a declaration in respect of
the appellant's status in the Public Service.
While it appears from the Trial Division file
that the action was set down for trial in the
ordinary way, there is nothing in the Appeal Book
to indicate how the record in the Trial Division
was constituted. The Court, therefore, requested
counsel to file a document to clarify that question
and they have filed a document reading as follows:
For the purposes of this appeal, the parties hereby acknowl
edge that the trial record, by agreement of the parties, was to
contain Exhibits 1, 2 and 3 as set out in the Appeal Books
herein and that the case at trial was determined on the basis of
those Exhibits and no others.
The learned Trial Judge summarized the facts
and proceedings [at pages 727, 728 and 732], in a
manner which I adopt, as follows:
The plaintiff is a unilingual, anglophone, air traffic controller
who, in August 1978, was transferred from Montreal, Quebec,
to Cornwall, Ontario. Prior to the transfer, he occupied a
position in the Ministry of Transport, designated TACQ-0274,
to which he had been appointed by competition from within the
Public Service on June 3, 1969. He has continued to live on a
farm near Hudson Heights, Quebec, and commutes to Corn-
wall. He seeks, in addition to costs, a declaratory judgment that
he is entitled (a) to remain in or be reinstated to position
TACQ-0274 with full salary and benefits of that position and
(b) to be reimbursed for all extra costs incurred by him as a
result of commuting to Cornwall from Hudson Heights.
In December 1975, controllers at the Montreal Area Control
Centre, where the plaintiff was employed, were notified that air
traffic control services in the Quebec Region would, in the
future, be provided in French and English. They were offered
the opportunity to apply for transfers out of the Quebec Region
with special benefits, such as housing cost differential payments
and relocation expense allowances, over and above those gener
ally available in the Public Service. In February 1976, the
plaintiff applied for a transfer to Halifax. In July, he changed
his requested destination to Cornwall, to be effective with the
removal there of the Transport Canada Training Institute.
On or about March 31, 1976, position TACQ-0274 was
designated bilingual and the plaintiff was, thereafter, a unilin-
gual incumbent of a bilingual position. The plaintiff had grown
up in Quebec. His experience taught him, and a month of
language training confirmed his opinion, that he could not
attain the necessary proficiency in French to function, as a
bilingual, in his position. He thereafter refused the opportunity
of language training.
In July 1976, the plaintiff, while continuing to occupy posi
tion TACQ-0274, was assigned to duties that no longer
required him to communicate with aircraft. It is not necessary
to list the series of assignments given him. In February 1978, he
was advised that his employer wished him to join the Training
Institute in Ottawa on May 1 and that, with its removal to
Cornwall, scheduled in August, his requested transfer would be
effected.
In April, the plaintiff withdrew his request for a transfer to
Cornwall and asserted his right to remain in position TACQ-
0274 at the Montreal Centre. He was told that he was no
longer capable of performing the duties of the position and
that, having refused language training, the two options remain
ing were (a) a transfer to another position or (b) release for
incapacity under section 31 of the Public Service Employment
Act. [R.S.C. 1970, c. P-32.] The plaintiff accepted the transfer
to Cornwall under protest and commenced this action before it
was effective. His new position does not carry a lower max
imum rate of pay than that attached to position TACQ-0274.
There is no doubt that the plaintiff did not freely and
willingly accept the transfer to Cornwall. While the pressure on
him cannot, in my view, fairly be described in the language of
the statement of claim, the pressure was real.
After considering the various arguments that had
been made before him, the learned Trial Judge
disposed of the matter, in so far as the first
declaration sought was concerned, as follows [at
page 734]:
. the determination that the plaintiff was no longer capable
of performing the duties of position TACQ-0274 because he
was unilingual was not a determination that could legally be
made. His release for incapacity under section 31 of the Public
Service Employment Act, based on such a determination,
would, it follows, also have been illegal. The plaintiff would, in
my view, prior to accepting the transfer from position TACQ-
0274, have been entitled to a declaration to that effect. That,
however, is all in the past and a judgment will not issue
declaring a past right that has been utterly extinguished.
I agree with the learned Trial Judge's disposi
tion of the claim for the first declaration but I
reach his conclusion subject to the following
comments:
1. while I agree that the "determination" that
the appellant was no longer capable of perform
ing the duties of position TACQ-0274 because
he was unilingual was not a determination that
could be legally made, my reasoning in that
connection is somewhat different from that of
the learned Trial Judge;
2. I have some reservation as to whether the
appellant would have been entitled to a judicial
declaration, prior to accepting the transfer in
question, that his release for incapacity under
section 31 of the Public Service Employment
Act would have been illegal; and
3. I doubt whether it is a principle of general
application to which there is no exception that a
judgment "will not issue declaring a past right
that has been utterly extinguished" and, in any
event, I do not think it is the reason for not
granting the first declaration sought in this case.
I should explain my view on each of these points in
a little more detail.
As I understand it, the learned Trial Judge's
conclusion that it did not follow from the fact that
he was unilingual that the appellant was no longer
capable of performing the duties of the position
was based on his unstated view that the designa
tion of position TACQ-0274 as bilingual could not
apply to the appellant by virtue of his having been
excluded, under section 39 of the Public Service
Employment Act,' from the operation of section
20 of that Act, which reads:
20. Employees appointed to serve in any department or other
portion of the Public Service, or part thereof, shall be qualified
in the knowledge and use of the English or French language or
both, to the extent that the Commission deems necessary in
Section 39 reads as follows:
39. In any case where the Commission decides that it is
not practicable nor in the best interests of the Public Service
to apply this Act or any provision thereof to any position or
person or class of positions or persons, the Commission may,
with the approval of the Governor in Council, exclude such
position or person or class of positions or persons in whole or
in part from the operation of this Act; and the Commission
may, with the approval of the Governor in Council, re-apply
any of the provisions of this Act to any position or person so
excluded.
order that the functions of such department, portion or part can
be performed adequately and effective service can be provided
to the public.
In my view section 20 relates to the language
qualifications that employees must have to be
"appointed to serve in ... the Public Service". It
does not operate to authorize the imposition of
language requirements in respect of an employee
after he has been appointed to a position that did
not involve such requirements. z As I understand
the procedure for employment of a person for
service in the Public Service, the deputy head of
the department concerned determines the qualifi
cations required and the Public Service Commis
sion has the legal authority to make the
appointment.' Once a person has been appointed
to a position with the qualifications so determined,
I know of no authority for separating him from
that position except those expressly provided for by
statute. ° Neither do I know of any authority for
changing the qualifications that must be satisfied
by a person so appointed to a position during the
period that he continues to occupy that position.
Any such change in qualifications would, in effect,
make the position something other than that to
which he was appointed. In particular, I do not
read sections 6 and 7 of the Financial Administra
tion Act, R.S.C. 1970, c. F-10, as conferring a
power so to affect the requirements for a person
who holds a Public Service position. In my view,
those provisions authorize the overall control and
co-ordination of the Public Service and do not
authorize action affecting the status of a particular
person already in the Public Service.' I do not
accept the submission of counsel for the respond
ent that they authorize an amendment to a posi
t Cf. Bauer v. Public Service Appeal Board [1973] F.C. 626.
3 See Brown v. Public Service Commission [1975] F.C. 345
at pp. 350-357.
° Cf. Wright v. Public Service Staff Relations Board [1973]
F.C. 765 at pp. 775-778.
5 For example, as I read section 7(1)(c), it authorizes Trea
sury Board to "provide for" (i.e., give general directions con
cerning) the classification (i.e., evaluation) of "positions" creat
ed by the departments and other agencies (and, incidentally,
the employees in those positions) for such purposes as the
exercise of the powers conferred by section 7(1)(d) "to deter
mine and regulate ... pay".
tion so as to affect the incumbent or the submis
sion that they authorize a unilateral transfer of a
person from one position to another.
It might be well to elaborate on this latter point.
As has been indicated in previous decisions, since
the 1966-67 legislation, the power to decide what
persons are necessary for a particular department
(i.e., the power to set up positions with defined
qualifications or requirements) has no longer been
carved out (by statute) from the general powers of
management conferred on the Minister by the
Departmental Act. The creation of a position is
therefore something done by the Department
(exercising the Minister's powers) before the
deputy head requisitions an appointment thereto
(section 10 of the Public Service Employment
Act). Having regard to the fact that, by statute,
the power to determine the qualifications for a
position is separate from the power to appoint the
incumbent thereof, it seems clear to me that, in the
absence of special statutory authority, once an
appointment has been made, the nature of the
position cannot be changed in so far as a person
already appointed thereto is concerned. It does not
of course follow that an appointee has permanent
tenure in the Public Service or that the Public
Service establishment becomes "frozen". The gen
eral power of management must not only include
the power to decide how many persons of what
qualifications are required to enable the Depart
ment to perform its statutory obligations to serve
the public but, in the event of changing circum
stances or policies, must include the power to
decide that classes of employees with certain
qualifications who are on staff are no longer
required and that employees with other qualifica
tions are required to provide the service to the
public that it is the Department's duty to provide.
Put another way, the general power of manage
ment not only includes the power to create posi
tions (including the definition of what is required
therefor) but the power to abolish certain positions
and create other positions requiring different
qualifications. 6 Furthermore, if a position is abol-
6 I express no opinion as to whether the express power to "lay
off" an employee "because of the discontinuance of a function"
has the effect of limiting the power to abolish positions. I will
say however that I find it improbable that, once created, a
position continues to exist forever. (Cf. section 29 of the Public
Service Employment Act.)
ished and a new position created the incumbent of
the position abolished ceases to be employed' and
the new position created must be filled by the
Public Service Commission. 9 (Prior to the 1966-67
legislation, there was provision in the superannua-
tion legislation for public servants whose positions
were so abolished. 9 Presumably, I do not pretend
to know, the current legislation does not deprive
them of some equivalent protection.)
With reference to the opinion expressed by the
learned Trial Judge that, before accepting the
transfer, the appellant would have been entitled to
a judicial declaration that he could not be released
for incapacity under section 31 of the Public Ser
vice Employment Act, 10 I do not think it is neces
sary to express such opinion for the purpose of this
appeal and I have some doubt as to the accuracy
thereof because I doubt
Cf. Reilly v. The King [1934] A.C. 176. I realize that in the
Reilly case the position was abolished by statute but I see no
difference in principle between abolition by statute and aboli
tion in the exercise of a statutory power of management.
s Generally, small changes in qualifications will result in
voluntary acceptance by the incumbent of appointment to the
new position and will be regarded as (and called) an amend
ment to the original position or a transfer.
9 Cf. section 7(1)(a)(iii) and (iv) of the Civil Service Super-
annuation Act, R.S.C. 1952, c. 50, and section 11(1)(c) of the
Public Service Superannuation Act, S.C. 1952-53, c. 47.
10 Section 31 reads as follows:
31. (1) Where an employee, in the opinion of the deputy
head, is incompetent in performing the duties of the position
he occupies or is incapable of performing those duties and
should
(a) be appointed to a position at a lower maximum rate of
pay, or
(b) be released,
the deputy head may recommend to the Commission that the
employee be so appointed or released, as the case may be.
(2) The deputy head shall give notice in writing to an
employee of a recommendation that the employee be
appointed to a position at a lower maximum rate of pay or be
released.
(3) Within such period after receiving the notice in writ
ing mentioned in subsection (2) as the Commission pre
scribes, the employee may appeal against the recommenda
tion of the deputy head to a board established by the
Commission to conduct an inquiry at which the employee
and the deputy head concerned, or their representatives, are
(Continued on next page)
(a) whether such discretionary relief should be
granted when Parliament has expressly provided
other relief for the particular case, " and
(b) whether such a declaratory action would not
be such an interference with the conduct of
government business in the manner provided for
by statute as to make it inexpedient for the
courts to interfere before section 31 action is
taken rather than by judicial review of the deci
sion on the appeal provided for by section 31.
I turn now to the learned Trial Judge's reason
for not granting the first declaration sought, viz.:
"a judgment will not issue declaring a past right
that has been utterly extinguished."
My first comment on this is that, in the present
state of the developing law concerning actions for
"declarations", I do not think that it can be said
that circumstances could not arise in which it
might not be proper to give a judgment "declaring
a past right that has been utterly extinguished." ' 2
The real substantive difficulty that the appellant
has not, in my view, overcome before the first
declaration sought can be granted is that neither
the facts alleged by the statement of claim nor the
facts as they appear from the record support the
granting of such declaration, which is
(Continued from previous page)
given an opportunity of being heard, and upon being notified
of the board's decision on the inquiry the Commission shall,
(a) notify the deputy head concerned that his recommen
dation will not be acted upon, or
(b) appoint the employee to a position at a lower max
imum rate of pay, or release the employee,
accordingly as the decision of the board requires.
(4) If no appeal is made against a recommendation of the
deputy head, the Commission may take such action with
regard to the recommendation as the Commission sees fit.
(5) The Commission may release an employee pursuant to
a recommendation under this section and the employee there
upon ceases to be an employee.
" Cf. Thorson v. Attorney General of Canada [1975] 1
S.C.R. 138, which would not, on a superficial consideration,
appear to be applicable.
12 I refer to the Dyson type of declaratory judgment and not
the declaratory judgment that the Court gives in an action
against the Crown for substantive relief. (Rule 605.) Cf The
King v. Bradley [1941] S.C.R. 270 at pp. 274 et seq.
a Declaration that the plaintiff (Appellant) is entitled to
remain in or be reinstated to position TACQ-0274 .... 13
It is clear that the case proceeded on the basis that
the appellant accepted a "transfer" from that posi
tion to a position in Cornwall. In this context, in
my view, "accepting" a "transfer" means that he
accepted an appointment to the Cornwall position,
which would automatically remove him from posi
tion TACQ-0274 inasmuch as the two positions
are obviously such that they could not be held by
the same person at the same time. It is clear also
that the case proceeded on the view (although
none of the relevant documents are in the record)
that the appellant was duly appointed to the Corn-
wall position. Assuming such a "transfer" by con
sent, it would seem clear that there cannot be a
declaration that the appellant is entitled to
"remain" in a position that he no longer occupies.
On the same assumption, it would seem clear that
there cannot be a declaration that he is entitled to
be "reinstated" in that position.
Before this Court, however, it was argued that
the "transfer" was a nullity because the appellant
was "forced" to accept it and only accepted it to
protect his employment in the Public Service. It is
a fact that the statement of claim (paragraph 23)
alleges that the appellant was "forced" to accept
the transfer but this allegation was denied by the
statement of defence (paragraph 12). It is also
clear, as the learned Trial Judge held, that the
appellant accepted the transfer "under protest"
and did not "freely and willingly accept the trans
fer" but accepted it under "pressure" that was
"real". 14 On the other hand, there is nothing to
indicate that the officers concerned did not act
under a bona fide belief that, as the appellant
himself alleges in his statement of claim, "position
TACQ-0274 ... was designated bilingual" and he
had become "a unilingual incumbent of a bilingual
position"; and, assuming that that was so, it is
difficult to see in what way the "pressure" exerted
was improper. In any event, even if there had been
13 It was not argued before us that a case had been made out
for some other declaration under the general claim for "further
and other relief".
14 I have not overlooked the fact that the learned Trial Judge
also refers to the transfer as "involuntary"; but I do not read
this as meaning anything more than is contained in the lan
guage I have quoted above. In any event, the case was tried on
the documents and, in my view, they do not support any finding
except that that I have summarized above.
a lack of bona fides on their part in the action that
they took, I am not convinced that the result would
be that his consent to the transfer was a nullity. 15
If it was not a nullity, the appellant is not, in my
view, entitled to the first declaration that he seeks.
As I understood counsel for the appellant, he did
not contend that the appeal could succeed with
reference to the second declaration sought if it did
not succeed with reference to the first.
For the above reasons, I am of opinion that the
appeal should be dismissed with costs.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: I agree that the appeal should be
dismissed on the ground that whatever legal right
the appellant may have had to remain in the
position in Montreal that right was extinguished
when he accepted the position in Cornwall, and
that it would not be a proper exercise of judicial
discretion, on the pleadings and facts of this case,
to grant a declaration that he had at one time a
right to remain in the Montreal position. I agree
that the record does not support a finding that
appellant's consent to the transfer to Cornwall was
vitiated by duress. I prefer not to express an
opinion as to the employment status that is created
by the provisions of the Public Service Employ
ment Act and other federal legislation or regula
tions, in so far as the powers to change the require
ments of a position, to abolish a position, or to
transfer an employee from one position to another
are concerned.
* * *
The following are the reasons for judgment
rendered in English by
KERR D.J.: I concur with the reasons for judg
ment of the Chief Justice and with his conclusion
that the appeal should be dismissed.
15 Cf. Stoltze v. Fuller [1939] S.C.R. 235.
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.