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T-84-88
Kenneth J. Payne (Applicant)
v.
Public Service Commission (Respondent)
INDEXED AS: PAYNE V. CANADA (PUBLIC SERVICE COMMIS SION)
Trial Division, Reed J.—Ottawa, February 4, 1988.
Public service Selection process Public servant resign ing to join Minister's staff Under Public Service Employ ment Act, s. 37(3) having priority with respect to employment in public service when employment ceases regardless of wheth er Minister losing position Mandamus granted requiring Commission to give applicant priority for appointment without competition.
Construction of statutes Public Service Employment Act, s. 37(3) Commission interpreting s. 37(3) together with s. 37(2) as requiring loss of employment by Ministerial staff due to Minister's loss of position for priority status S. 37(3) referring neither to Minister ceasing to hold office, nor to s. 37(2) Subsection stands alone unless expressly stated otherwise, or ambiguity, or clear indication of qualification by another subsection Individuals entitled to rely on ordinary grammatical meaning of statutes While administrative practice may be relevant to interpretation, must not contradict clear legislative text.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Public Service Employment Act, R.S.C. 1970, c. P-32, s. 37(2),(3),(4),(6).
CASES JUDICIALLY CONSIDERED
APPLIED:
Hare! v. Dep. M. Rev. of Quebec, [1978] 1 S.C.R. 851.
REFERRED TO:
Vachon v. Canada Employment and Immigration Com
mission, [1985] 2 S.C.R. 417; 23 D.L.R. (4th) 641.
AUTHORS CITED
Coté, Pierre-André. The Interpretation of Legislation in Canada, Cowansville, Qué.: Les Editions Yvon Blais Inc., 1984.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
COUNSEL:
John P. Nelligan, Q.C. for applicant. Brian J. Saunders for respondent.
SOLICITORS:
Nelligan/Power, Ottawa, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order ren dered in English by
REED J.: The issue in this case is very straight forward: the proper interpretation of subsection 37(3) of the Public Service Employment Act, R.S.C. 1970, c. P-32. That provision states:
37e ...
(3) A person who
(a) was an employee immediately before he became employed in the office of a Minister,
is entitled, for a period of one year from the day on which he ceases to be so employed, to be appointed without competition and, subject to section 30, in priority to all other persons, to a position in the Public Service for which in the opinion of the Commission he is qualified. [Underlining added.]
The Public Service Commission has interpreted this section as giving ministerial staff, who meet the requirements of subsection 37(3), priority only when they lose their employment as a result of their Minister losing his or her position.
Subsection 37(2) of the Act defines the termina tion of employment of ministerial staff when a Minister ceases to hold his or her position as a Minister. In these circumstances, ministerial staff will cease to be employed "thirty days after the person holding the position of ... Minister ceases to hold that position". The Public Service Com mission's practice has been to link subsections 37(2) and 37(3) and thereby read into subsection 37(3) the requirement that it only applies to give a member of the ministerial staff priority with respect to employment in the public service when that individual has ceased to be employed as a result of the Minister losing or changing office.
But that is not what subsection 37(3) says. The subsection is very clear; it refers only to the day on which the employee ceases to be employed. It makes no reference to the Minister ceasing to hold office. The interpretation adopted by the Commis sion involves the reading in of words that are not there. If Parliament had intended the section to have the operation for which the Commission argues, it is my view, the subsection would have been specifically drafted to so provide—either by a cross-reference in subsection 37(3) to subsection 37(2) or by some expanded wording of 37(3) itself. I note that the text by Elmer A. Driedger, Con struction of Statutes, 2d ed. Toronto: Butter- worths, 1983, at page 142 states:
Each section (and each subsection) is a separate enactment, but often it is not self-contained ....
In my view, it is an elementary principle of draft ing that each subsection stands by itself unless there is a proviso expressly stating the contrary, or unless an ambiguity exists or a clear indication that the subsection was intended to be qualified by another section or subsection. Subsection 37(3) contains no express proviso of the kind the Com mission would read in; it is not ambiguous; there is no companion subsection which expressly limits its scope in the manner the Commission seeks to support.
The Commission argues that statutes are to be interpreted with their objects in mind and in their entire context: see Driedger (supra), at page 87 and Vachon v. Canada Employment and Immi gration Commission, [1985] 2 S.C.R. 417, at page 431; 23 D.L.R. (4th) 641, at page 652. The Com mission argues that section 37 (i.e. subsections 37(3), (4) and (6)) provide for certain limited exceptions to the merit principle which the Public Service Employment Act is designed to establish. Therefore, it is argued, they should be given a narrow interpretation and restricted so as to oper ate only when the individuals to whom they apply have lost their employment involuntarily as a result of the Minister, for whom they have been working, ceasing to hold office. This policy may be a very laudable one. Unfortunately, it is not what subsection 37(3) of the Act says.
The principle that statutes must be interpreted in their ordinary grammatical meaning when it is
possible to do so, is based on the concern that individuals should be entitled to rely on their wording when read in this fashion. The facts in this case are a good example of the reason behind this principle. Mr. Payne worked as a public ser vant from 1979 to 1986. He was then asked to work for the Minister of State for the Canadian Wheat Board, as Chief of Staff. At that time, he was working as a financial officer with the public service. He made enquiries as to his public service employment status should he take the ministerial staff position. He was informed that he would not be granted a leave of absence to work in a minis ter's office. He was informed that his rights would be governed by section 37 of the Public Service Employment Act. The relevant part of the memo randum sent to him states:
Should Leave of Absence not be granted or should you so wish, you may as an alternative, resign from the Public Service. You would then be subject to the provisions of section 37 of the Public Service Employment Act which deals with Ministers' staffs.
A subsequent letter sent to him as a result of enquiries for further information, stated:
In reply to your questions regarding certain benefits such as GSMIP, superannuation, dental plan, etc., it is my understand ing that as a member of a Minister's exempt staff you maintain all these benefits. Additional information can be obtained from the Personnel Services at Agriculture Canada.
Since we have no record of a Leave of Absence having been approved by Employment and Immigration Canada, an eventu al return to the Public Service would be in accordance with Section 37 of the Public Service Employment Act. I understand that you have a copy of that particular legislation and that you are, therefore, aware of your relevant rights.
An individual reading section 37 would not find the limitation to subsection 37(3) which the Com mission seeks to read into it. Mr. Payne resigned from the civil service in reliance on subsection 37(3). His affidavit material so indicates. A read ing of that subsection would not lead one to expect that priority status by way of a transfer back into the civil service would only be given if the employee stayed as a member of the ministerial staff beyond the date of the Minister himself ceasing to hold office.
Counsel for the Commission argues that administrative practice will sometimes be relevant
to the interpretation of legislation: Harel v. Dep. M. Rev. of Quebec, [1978] 1 S.C.R. 851, at page 859; Côté, Pierre-André, The Interpretation of Legislation in Canada, Cowansville (Que.): Les Éditions Yvon Blais Inc., 1984 at pages 446-448. That may very well be true but as was said by Mr. Justice de Grandpré in the Harel case (supra), at page 859, an administrative interpretation cannot be allowed to contradict a clear legislative text. In the present case the legislative text is clear; the administrative policy is not in accord with that text.
For the reasons given, an order in the nature of mandamus will issue requiring the respondent to give the applicant priority for appointment without competition in accordance with subsection 37(3) of the Public Service Employment Act.
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