A-1787-83
Fred Ager (Appellant) (Plaintiff)
v.
The Queen (Respondent) (Defendant)
Court of Appeal, Pratte, Hugessen and Mac-
Guigan JJ.—Ottawa, September 11, 1984.
Public service — Appeal from determination of question of
law — Plaintiff air traffic controller in supervisory capacity
transferred to non-operational service for partisan Union
activities — Trial Judge finding conduct prior to reassignment
relevant to question of whether plaintiff ceased "otherwise
than voluntarily to be employed" — Appeal allowed — State
ment of defence indicating plaintiff not wishing to accept
transfer — Pleading going to intention, negating possibility of
voluntary cessation of operational service — Allegations
regarding conduct prior to transfer irrelevant to question of
whether ceased employment otherwise than voluntarily —
Public Service Superannuation Act, R.S.C. 1970, c. P-36,
ss. 12.12 (as enacted by S.C. 1980-81-82-83, c. 64, s. 3), 12.13
(as enacted idem).
COUNSEL:
Thomas A. McDougall, Q.C. and James R.
Hendry for appellant (plaintiff).
John H. Sims for respondent (defendant).
SOLICITORS:
Perley-Robertson, Panet, Hill & McDougall,
Ottawa, for appellant (plaintiff).
Deputy Attorney General of Canada for
respondent (defendant).
The following are the reasons for judgment
delivered orally in English by
HUGESSEN J.: This is an appeal from a judg
ment of Addy J. [[1984] 1 F.C. 157 (T.D.)],
determining prior to trial two questions of law as
follows:
1. Pursuant to Rule 474 that the following questions of law
be determined:
(a) Whether the actions of the Plaintiff as alleged in the
Defence of the Defendant herein prior to the re-assignment
of the Plaintiff by the Defendant from operational to
non-operational service are relevant to the determination
of the question of whether the Plaintiff has ceased 'other-
wise than voluntarily to be employed' in operational ser-
vice within the meaning of Section 12.13 of the Public
Service Superannuation Act, R.S.C. 1970, Chapter P-36,
as amended, inasmuch as no misconduct is alleged against
the Plaintiff and where the term `operational service' is
defined in the Public Service Superannuation Act?
(b) If the answer to the first question is in the affirmative,
whether the Plaintiff is estopped from denying the findings
of fact made by the Public Service Staff Relations Board
in its decision dated September 5, 1978 in respect of its
files number 166-2-3413 and 166-2-3414 and in its deci
sion dated November 14, 1978 in respect of its file number
166-2-167.
(Order of Jerome A.C.J., 9 September, 1983, Case,
pp. 17-18.)
Addy J., answered the first question in the
affirmative, the second in the negative. Plaintiff
appeals from that part of the order answering the
first question; defendant has appealed from that
part answering the second question.
Plaintiff was an air traffic controller in opera
tional service. He was in a supervisory function. In
the course of a labour dispute which apparently
engendered bitter divisions not only between man
agement and labour but also between the members
of the Union amongst themselves, plaintiff took a
highly partisan position and engaged in certain
activities which, in the view of his superiors,
destroyed the appearance of impartiality and fair
ness necessary to the performance of his duties. As
a result he was transferred to non-operational
service.
Pursuant to the Public Service Superannuation
Act [R.S.C. 1970, c. P-36], air traffic controllers
in operational service enjoy highly preferential
retirement benefits. Where a controller ceases to
be in operational service, some benefits may con
tinue or additional benefits may accrue depending
upon the manner of the cessation.
The statute distinguishes between the air con
troller who voluntarily ceases to be employed in
operational service, who is dealt with in section
12.12 [as enacted by S.C. 1980-81-82-83, c. 64,
s. 3], and the one who ceases such service "other-
wise than voluntarily ... for any reason other than
misconduct", who is dealt with in section 12.13.
The scheme of the enactment, therefore, envis
ages three possible ways in which a controller may
cease operational service:
1. involuntary cessation due to misconduct,
2. other involuntary cessation,
3. voluntary cessation,
and provides for different consequences flowing
therefrom. There is no question of misconduct in
the present case, it being admitted that plaintiffs
transfer was not for this reason. The question
therefore is whether he ceased operational service
voluntarily or involuntarily.
A voluntary cessation is one which is intended
and results from the will of the employee. If such
intention is lacking, the cessation is other than
voluntary.
The intention of an actor may be expressed or it
may be implied from his actions. Here, on defend
ant's own pleading, plaintiff has not expressed the
intention to cease operational service, but rather
the opposite:
... the plaintiff did not wish to accept this transfer of duties
and did so under protest (Defence, paragraph 6(h), Case, p.
10).
While there may be circumstances in which an
intention opposite to what is expressed may be
deemed to exist despite such expression, the plead-
ings do not contain any suggestion that such is the
case here. Indeed, in my view, the quoted para
graph goes further than the simple expression of
plaintiffs intention but goes to the intention itself
so as to negate any possibility of a voluntary
cessation of operational service. Read in this light,
the allegations regarding plaintiffs conduct prior
to his transfer indicate that, at the most, he volun
tarily acted in such a way as to justify his employ
er in imposing a transfer upon him. That is irrele
vant to the determination of the question of
whether he intended such transfer or, in the words
of the statute, whether he ceased otherwise than
voluntarily to be employed in operational service.
The appeal should be allowed and the first
question put in the order of Jerome A.C.J., of 9
September, 1983, should be answered in the nega
tive. That being so, no answer should have been
given to the second question.
PRATTE J. concurred.
* * *
The following are the reasons for judgment
delivered orally in English by
MACGUIGAN J.: I concur and I would add only
a few words.
Both the ordinary meaning of its words and the
overall context provided by a statute are relevant
to its interpretation. It is not necessary for this
case for us to decide in a final way how section
12.13 of the Public Service Superannuation Act,
R.S.C. 1970, c. P-36, should be interpreted, and I
specifically reserve the question of what degree of
reckless conduct might be considered to be suf
ficiently assimilable to intention as to constitute a
voluntary act.
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.