A-481-79
Gerald Morin (Plaintiff) (Respondent)
v.
The Queen (Defendant) (Appellant)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, April 29 and May 2, 1980.
Public Service — Appeal from decision of Trial Division
wherein it was held that a declaration by the Deputy Minister
re employee's abandonment of position pursuant to s. 27 of the
Public Service Employment Act was invalid — Trial Judge
concluded that the s. 27 power was improperly exercised for
reasons relating to one of three conditions set out in the
section, namely the Deputy Minister's opinion that the reasons
for the employee's absence were within his control — Whether
the Trial Judge erred in his decision — Appeal allowed —
Public Service Employment Act, R.S.C. 1970, c. P-32, s. 27.
Respondent was an employee of the federal government
when his employment was ended pursuant to section 27 of the
Public Service Employment Act, as the Deputy Minister had
declared that he had abandoned his position. This is an appeal
from the decision of the Trial Division wherein it was held that
the declaration of abandonment was invalid. Section 27 gives a
deputy minister the power to declare that an employee has
abandoned his position if the employee has been absent from
work for one week or more, if the deputy head is of the opinion
that the reasons for the absence were within the employee's
control and if the deputy head has notified the Commission in
writing that the employee has abandoned his position. The
Trial Judge considered the first and last of these three condi
tions had been established. He concluded that the Deputy
Minister had not properly exercised the power under section 27
for reasons relating to the second condition, namely the opinion
of the deputy head that the employee had been absent from
work for reasons which were within his control. The issue is
whether the decision of the Trial Judge was correct.
Held, the appeal is allowed. The decision of the Trial Judge
is incorrect as it appears to rest on errors both in law and in
assessment of the facts. There is nothing in the evidence that
can be a basis for concluding that the Deputy Minister acted in
bad faith nor to support the assertion that respondent was "at
the end of his tether" and could not report to work on that
account. The Trial Judge appears to have considered that the
Deputy Minister exercises a discretionary power by formulating
an opinion on the employee's reasons for absence. This is
incorrect: section 27 confers on the Deputy Minister the power
to declare that an employee has abandoned his position. The
Deputy Minister's opinion on the causes for his subordinate's
absence is only one pre-condition necessary for the exercise of
this power. Administrative powers must be exercised in accord
ance with a procedure, which is in conformity with the law and
with justice. The only question for determination by the Trial
Judge was as to whether the Deputy Minister had exercised his
power in accordance with the requirements of section 27 and
the general principles of administrative law. The respondent
had been warned of the Deputy Minister's intention to exercise
his power under section 27, and was required to indicate the
reasons for his absence. If respondent chose not to reply, he has
only himself to blame. The provisions of section 27 do not
require that the Deputy Minister should know all the reasons
for his subordinate's absence; and there is no principle of law on
the basis of which the exercise of the Deputy Minister's power
can be made subject to such a condition. Counsel for the
respondent argued that the evidence produced at trial does not
conclusively demonstrate that the Deputy Minister ever sent to
the Commission the document mentioned in section 27.
Respondent asked the Court to cancel the declaration of aban
donment. In order to succeed, he had to establish either that
this declaration had not been made or that it had not been sent
in accordance with law. That was not proven.
APPEAL.
COUNSEL:
J. M. Aubry and J. M. Mabbutt for (defend-
ant) (appellant).
L. Caron for (plaintiff) (respondent).
SOLICITORS:
Deputy Attorney General of Canada for
(defendant) (appellant).
L. Caron, Quebec City, for (plaintiff)
(respondent).
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: Respondent was an employee of the
Department of Public Works in Ottawa when he
was told, on September 29, 1975, that his employ
ment had ended pursuant to section 27 of the
Public Service Employment Act, R.S.C. 1970, c.
P-32,' as the Deputy Minister of Public Works
had declared, in the manner provided for in that
section, that he had abandoned his position. This
appeal is against the decision of the Trial Division
[[1979] 2 F.C. 642], which allowed an action
' This provision reads as follows:
27. An employee who is absent from duty for a period of
one week or more, otherwise than for reasons over which, in
the opinion of the deputy head, the employee has no control
or otherwise than as authorized or provided for by or under
the authority of an Act of Parliament, may by an appropriate
instrument in writing to the Commission be declared by the
deputy head to have abandoned the position he occupied, and
thereupon the employee ceases to be an employee.
brought by respondent against Her Majesty, and
held that the declaration of the Deputy Minister
that respondent had abandoned his position was
invalid, that respondent still occupied his position
and that he was entitled to the salary and other
monetary benefits of which he had been deprived
as a result of the Deputy Minister's declaration.
Respondent began work for the Department of
Public Works in 1970, first in Ottawa and then in
Montreal. After a certain time, an atmosphere of
hostility arose between respondent and his superior
in Montreal, a Mr. Laurendeau. Respondent
believed he had reason to complain of Laurendeau
and the latter appeared to have a grudge against
his subordinate. In 1975, as a result of unfavour
able reports made by Laurendeau, the Deputy
Minister of Public Works recommended to the
Public Service Commission that it dismiss
respondent for incompetence pursuant to section
31 of the Public Service Employment Act.
Respondent appealed from this recommendation,
as he was entitled to do under subsection 31(3),
and the Board hearing his case allowed his appeal.
As a consequence of this decision in respondent's
favour, the administrators of the Department
decided to transfer him to Ottawa. On July 30,
1975 they wrote to tell him of this decision; a few
weeks later he began work in Ottawa.
On September 17, 1975 respondent's immediate
superior in Ottawa, a Mr. Légaré, wrote him to
tell him that he had been absent from work with
out leave on September 16, and to ask him not to
do so again in future.
On September 26, as the result of fresh unau
thorized absences by respondent, Mr. Légaré
wrote him again to the same effect.
After September 29, respondent no longer
reported to work. It would appear that he sought
by this means to protest against his transfer to
Ottawa, which he regarded as unlawful and unjus
tified, and against the harassment by his immedi
ate superiors of which he alleged he was the
victim. On October 16, Mr. Légaré wrote him to
tell him that it was not possible to comply with his
wish for another transfer to a position in Montreal,
to ask him for reasons for his absence since Sep-
tember 30, and finally, to warn him that if he did
not return to work before October 23 he would be
regarded as having abandoned his position.
Respondent took no action as a result of this letter.
He did not attempt to explain his absence and did
not return to work. However, he telegraphed the
Deputy Minister to ask that he be given back his
position in Montreal. In view of this, the Executive
Secretary of the Department wrote respondent on
October 29 to tell him that as of that date the
Deputy Minister had exercised the power con
ferred on him by section 27 and declared that he
had abandoned his position.
Respondent appears to have first submitted a
grievance against this decision by the Deputy Min
ister. As this grievance was dismissed, on Decem-
ber 5, 1977 he instituted against appellant the
action allowed by the Trial Division. In his state
ment of claim, respondent stated that from the
start of his employment he had been a victim of
injustice, harassment, and wrongful and malicious
acts by appellant's servants; specifically, he alleged
that his transfer from Montreal to Ottawa was
unjustified, unlawful and void, and that he accord
ingly still held his position in Montreal; he further
alleged that, after his transfer, he continued to be
a victim of harassment, injustice and unlawful
disciplinary action; finally, he stated that all these
unlawful acts had caused him considerable injury,
for which he claimed compensation. He concluded
by asking the Court to cancel his transfer to
Ottawa, and to vacate "any instrument which may
be contrary to the rights of plaintiff ... or impede
plaintiff's return to his position in the Department
of Public Works in Montreal", and asking that
appellant be ordered to reinstate him in his duties
and to compensate him for the injury sustained.
The Trial Division allowed this action. Its judg
ment [at page 650] reads as follows:
. I find that the declaration that the position had been
abandoned was not validly made, and that plaintiff has not
ceased to occupy his position since September 30, 1975, that he
still occupies it and that he is entitled to all wages, wage
increases and fringe benefits as if there had never been an
alleged abandonment of the position, and to interest on these
amounts from the date on which each was due.
If the parties cannot agree on the amount of the wages, wage
increases, fringe benefits and damages to which plaintiff is
entitled with interest, the Court shall determine the amount
thereof.
The action is allowed with costs.
Two preliminary observations may be made.
The first is that it is surprising that the Trial
Judge, who had before him an action seeking
primarily a declaration that the decision of
respondent's superiors to transfer him from Mon-
treal to Ottawa was unlawful, nowhere ruled on
this point, giving a decision simply on the legality
of the declaration of abandonment of position,
which was not even expressly alleged in the state
ment of claim. The second observation prompted
by the judgment concerns the Judge's refusal to
decide immediately the amount owed to respond
ent. When the Trial Division has before it an
action for damages, the Judge in rendering judg
ment must (except for cases covered by Rule 480
and those in which the parties expressly consent to
some other procedure) arrive at a decision not only
as to defendant's liability but as to the amount of
damages owed as well; the Judge may not simply
decide part of the action which the parties have
submitted to him. I should at once point out that
these two irregularities are of no great significance
in the circumstances. Only respondent would have
any reason to complain of them, and his counsel
expressly assured the Court at the hearing that he
was entirely satisfied with the Trial Judge's deci
sion, which held that it was not necessary to
determine the quantum of the damages, and which
correctly interpreted his action as being directed
primarily, if not exclusively, against the declara
tion of abandonment of position dated October 29,
1975.
Was the Trial Judge correct in deciding that the
Deputy Minister improperly exercised the power
conferred on him by section 27, and that respond
ent accordingly had not lost his employment as a
result of the declaration of abandonment of posi
tion dated October 29, 1975? This is the funda
mental question presented by this appeal.
Section 27 provides that a public servant loses
his position and ceases to be employed when the
following three conditions are all present:
(1) the employee has been absent from work for
a period of one week or more;
(2) the deputy head is of the opinion that the
reasons for this absence were within the
employee's control; and
(3) the deputy head has sent the Commission an
instrument in writing stating that the employée
has abandoned the position he occupied.
The Trial Judge had to determine whether, in
the case at bar, these three conditions were all
present. It appears from the reasons he gave in
support of his decision that he considered that the
existence of the first and last of the three condi
tions had been established. He held that respond
ent had been absent from his work for over a week,
and that the Deputy Minister had submitted to the
Commission the written declaration required by
section 27. If despite this he concluded that
respondent had not lost his position, he did so for
reasons relating to the second condition mentioned
in section 27, namely the opinion of the Deputy
Head that the employee had been absent from
work for reasons which were within his control.
The grounds given in the judgment a quo are not
easy to summarize. As I understand them, these
grounds are essentially contained in the following
propositions, which I take for the most part from
the Trial Judge's reasons for judgment:
1. "In essence, the issue is whether the facts
established ... allowed the Deputy Minister of
Public Works to exercise fairly, equitably and
reasonably the discretion he is given under sec
tion 27 of the Public Service Employment Act,
R.S.C. 1970, c. P-32, to determine whether the
reasons for plaintiff's absence were beyond his
control .. "•
2. "... the Deputy Minister cannot rely on this
section [section 27] if he does not know all the
reasons for the employee's absence .... If the
Deputy Minister exercises his discretion without
knowing all the reasons for the absence, it
cannot be said that this discretion has been
exercised fairly, equitably and reasonably";
3. in the case at bar, the Deputy Minister based
his opinion on the information which had been
given to him by his subordinates, who were
respondent's immediate superiors: "... the
Deputy Minister did not feel he should himself
ask plaintiff the reasons for his absence. If a
Deputy Minister does not make inquiries of the
employee as well as of his superiors, I cannot
really believe that he is able and in a position to
exercise his discretion fairly, equitably and rea
sonably .. "•
4. the evidence established that, as a result of
the harassment he had suffered, plaintiff was
"at the end of his tether" and, accordingly, his
absence was not within his control; the Deputy
Minister was not aware of all these facts, and so
was unable to validly exercise the discretion
conferred on him by section 27;
5. resort was had to section 27 as a "device" to
get rid of respondent, after having unsuccessful
ly tried to dismiss him for incompetence.
On the basis of these considerations the Trial
Judge concluded that the Deputy Minister had
not, in the case at bar, properly exercised the
power conferred on him by section 27.
In my view this decision is incorrect. It appears
to rest on errors both in law and in assessment of
the facts.
First, assessment of the facts: I see nothing in
the evidence that can be a basis for concluding
that the Deputy Minister acted here with bad
faith, as suggested by the word "device" used by
the Trial Judge. Nor do I find anything in the
evidence to support the assertion that respondent
was a victim of so many injustices and such
harassment that he was "at the end of his tether"
and could not report to work on that account. The
findings of the Trial Judge in this regard seem to
be inaccurate; in my view, the evidence shows
clearly that respondent deliberately failed to report
to his employment as a protest, primarily against
his transfer from Montreal to Ottawa.
I now turn to the law.
The Trial Judge appears to have considered that
the Deputy Minister exercises a discretionary
power by formulating an opinion on the employee's
reasons for absence. This is incorrect: section 27
confers on the Deputy Minister the power to
declare that an employee has abandoned his posi
tion. The Deputy Minister's opinion on the causes
for his subordinate's absence is only one pre-condi
tion necessary for the exercise of this power.
The Trial Judge apparently based his decision
primarily on the principle that a discretionary
power must be exercised fairly and equitably. To
the extent that it exists, this principle means only
that administrative powers must be exercised in a
manner, that is to say in accordance with a proce
dure, which is in conformity with the law and with
justice; it does not mean that an administrative
power is improperly exercised solely because the
result of its exercise is to create a situation which
the Judge finds to be unfair. The only question for
determination by the Trial Judge was, therefore,
as to whether the Deputy Minister had exercised
his power in accordance with the requirements of
section 27 and the general principles of adminis
trative law.
The Trial Judge appears to have considered that
the Deputy Minister could not exercise the section
27 power without having first inquired from his
employee as to the causes for his absence. It is not
necessary to examine the merits or otherwise of
this proposition here as, in the case at bar,
respondent had been warned of the Deputy Minis
ter's intention to exercise his power under section
27, and required, by the letter sent to him on
October 16 by Mr. Légaré, to indicate the reasons
for his absence. If respondent chose not to reply to
this letter because he was challenging the author
ity of the person writing it, he has only himself to
blame, and his silence certainly cannot invalidate
the otherwise legally undertaken action of the
Deputy Minister.
Finally, the provisions of section 27 do not
require that the Deputy Minister, before validly
exercising his power, should know all the reasons
for his subordinate's absence; and I know of no
principle of law on the basis of which the exercise
of the Deputy Minister's power can be made sub
ject to such a condition. If it were otherwise, an
employee could at any time, by concealing the
reasons for his absence from his superiors, prevent
his employment being terminated under
section 27.
In my view the Trial Judge's reasons are without
foundation.
Counsel for the respondent, however, put for
ward another argument which, in her opinion,
might be a basis for the Trial Division's judgment,
namely that the evidence presented at the trial
does not conclusively demonstrate that the Deputy
Minister ever sent to the Commission the docu
ment mentioned in section 27. If this document
was not sent to the Commission, counsel for the
respondent contended, the Deputy Minister did not
validly exercise his power and it follows that the
judgment a quo is correct.
I am not persuaded by this argument. In his
action, respondent asked the Court to cancel the
declaration of abandonment of position made pur
suant to section 27. In order to succeed, he had to
establish either that this declaration had not been
made or that it had not been sent in accordance
with law. That was not proven. The mere fact that
we do not know whether the document referred to
in section 27 was sent to the Commission is not a
basis for concluding that the document was not
thus sent.
For these reasons, I would allow the appeal with
costs, set aside the judgment a quo and dismiss the
action of respondent with costs.
* * *
LE DAIN J. concurred.
* * *
HYDE D.J. concurred.
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.