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.