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. 
 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.