Judgments

Decision Information

Decision Content

T-1564-86
Francine Streeting (Plaintiff) v.
Minister of Employment and Immigration and The Queen (Defendants)
INDEXED AS: STREETING V. CANADA (MINISTER OF EMPLOY MENT AND IMMIGRATION)
Trial Division, Reed J.—Ottawa, February 17 and 22, 1988.
Public service — Termination of employment — Plaintiff sending letter revoking prior resignation by courier same day letter accepting resignation mailed — Whether resignation accepted before revoked — Meaning of "on the day" in Public Service Employment Act, s. 26 — Whether "accepts" in s. 26 requiring communication of acceptance — Application of gen eral principles of contract versus principle of appointment of public servants at pleasure — Resignation occurred before revocation received — Plaintiff's use of courier service not making it prescribed mode of communication to exclusion of response by post.
This was an application for a determination of a question of law. The plaintiff had been an employee of the Employment and Immigration Commission. On April 1, 1985 she sent by courier a letter of resignation, dated March 29, 1985 which was to be effective March 28, 1985. On April 3, 1985 a letter was mailed to the plaintiff acknowledging her resignation. That same day, the plaintiff sent a second letter by courier purport ing to revoke her resignation. It was received shortly after the letter acknowledging her resignation was mailed. Section 26 of the Public Service Employment Act provides that "an employee may resign ... by giving ... notice in writing of his intention to resign and the employee ceases to be an employee on the day as of which the deputy head accepts in writing his resignation." The issue was whether the letter of resignation was accepted before it was revoked.
The plaintiff argued that section 26 gives an employee the whole day within which his or her resignation is accepted to revoke that resignation. That argument was based on the words "the employee ceases to be an employee on the day as of which the deputy head accepts his resignation in writing." It was argued that the termination of an employee's status as such must be at the end of that day. The plaintiff also argued by analogy to contract law that "accepts", in section 26, required a communication of the acceptance to the employee and that there had not been either actual or constructive communication of the acceptance. The defendant argued that the principle that a public servant is appointed at pleasure, carries with it the rule that termination of a public servant's tenure can only occur with the consent of the Crown. Therefore, the duty to ascertain whether a resignation has been accepted rested with the employee.
Held, the letter acknowledging the letter of resignation con stituted acceptance of the plaintiffs letter of resignation.
Section 26 deals with two distinct aspects of a resignation: (1) the conditions under which an effective resignation and acceptance thereof will have occurred and (2) the date as of which an employee who has resigned ceases to be an employee. The reference to "on the day" applies only to the latter, and only when a letter of resignation, or the acceptance thereof, does not specify the date on which the employment relationship terminates. In such a case, the employment relationship will cease to exist on the day the resignation is accepted.
The rules respecting appointment at pleasure of Crown ser vants did not apply. An employee's capacity to resign is the same whether he is a public servant or not. The ordinary principles of contract law apply to interpret the terms of employment of public servants.
Acceptance of an employee's resignation requires more than simply signing a writing to that effect, although an employee need not actually receive notice of the acceptance before it becomes effective. However, it was not necessary to decide at exactly what point a deputy head will have been held to have "accepted" a resignation in all cases or what kind of a com munication of acceptance is required. Here, the letter of accept ance was signed by the deputy head and put out of his power to countermand before the letter of revocation was received. Acceptance of the plaintiffs resignation occurred before the letter of resignation was received.
Application of the common law rules respecting communica tion by post would lead to the same conclusion. Given the geographical proximity of the parties, the use of the post and of a courier service were equivalent means of communication. The plaintiff's use of a courier service did not give rise to an inference that that was the prescribed mode of communication to the exclusion of a response by post.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Rules, C.R.C., c. 663, R. 474.
Public Service Employment Act, R.S.C. 1970, c. P-32,
ss. 24, 26.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Reg. v. Cuming (1887), 19 Q. B. D. 13; Marks v. The Commonwealth (1964), 111 C.L.R. 549 (Aust. H.C.); O'Day v. The Commonwealth (1964), 111 C.L.R. 599 (Aust. H.C.).
CONSIDERED:
Friesen v. Treasury Board, [1979] P.S.S.R.B., File 166-2-6159 (Norman); Canadian Air Traffic Control
Association v. The Queen, [1985] 2 F.C. 84 (C.A.).
REFERRED TO:
Lafleur v. Treasury Board, [1976] P.S.S.R.B., File 166-2-2413 (Simmons); Phillips v. The Queen, [1977] 1 F.C. 756 (T.D.); deMercado v. The Queen et al., T-2588-83, Cattanach J., judgment dated March 19, 1984, T.D., not reported; Evans v. Canada (Government of) (1986), 4 F.T.R. 247 (T.D.); Flanagan (H). v. The Queen et al., [1987] 2 C.T.C. 167 (F.C.A.).
AUTHORS CITED
Brown, Donald J. and Beatty, David M., Canadian Labour Arbitration, Agincourt: Canada Law Book Limited, 1977.
Cheshire and Fifoot's Law of Contract, 10th ed. M. P. Furmston, London: Butterworths, 1981.
Christie, Innis M., Employment Law in Canada, Toronto: Butterworths, 1980.
Waddams, S. M., The Law of Contracts, 2d ed., Toronto: Canada Law Book Limited, 1984.
COUNSEL:
Timothy G. M. Hadwen for plaintiff. Dogan D. Akman for defendants.
SOLICITORS:
Cavalluzzo, Hayes & Lennon, Toronto, for plaintiff.
Deputy Attorney General of Canada for defendants.
The following are the reasons for order ren dered in English by
REED J.: The issue in this case is whether a letter of resignation written by the plaintiff was accepted before it was revoked. Section 26 of the Public Service Employment Act, R.S.C. 1970, c. P-32, governs the situation:
26. An employee may resign from the Public Service by giving to the deputy head notice in writing of his intention to resign and the employee ceases to be an employee on the day as of which the deputy head accepts in writing his resignation.
Facts
This case has proceeded on the basis of an agreed statement of facts. These facts are as follows:
The plaintiff, Francine Streeting, began to work for the Employment and Immigration Commission of Canada in May, 1981.
In November, 1982, Michel Monette was the individual responsible, as Branch Manager, for Streeting's work. He reported to Lionel Carrière, Metro Manager of the Commission in Ottawa.
At all material times, Carrière had been lawfully delegated the authority and power of the "deputy head" under section 26 of the Public Service Employment Act to receive and accept resigna tions tendered by employees of the Commission.
On April 1, 1985, Streeting sent by courier, to the Vanier office, addressed to Monette, a letter dated March 29, 1985, in which she resigned her position with the Commission effective March 28, 1985.
On April 1, 1985, Monette forwarded the letter of resignation to the Personnel Office of the Commis sion in Ottawa and instructed them as follows:
As per Employee's request please action immediately.
In turn, Personnel forwarded the letter of resigna tion to Carrière.
During the morning of April 3, 1985, the Person nel Office telexed the Commission's Headquarters for Pay and Benefits (Ontario Region) at Willow- dale, Ontario to request that Streeting be "struck off strength of employees".
On April 3, 1985, sometime after 11:00 a.m., Carrière signed a letter addressed to Streeting, acknowledging her resignation and wishing her well in her future endeavours. The letter reads as follows:
This will acknowledge receipt of your letter of resignation dated March 29 1985; your last working day being March 28, 1985.
I would like to sincerely thank you for your cooperation and the good service you provided during your employment with the commission.
I would also like to take this opportunity to wish you success in your new endeavours.
Sometime before 1:00 p.m. on April 3, 1985, Car- rière placed the letter in the outgoing mail basket on his secretary's desk. The letter was picked up between 2:00 p.m. and 3:00 p.m. by an employee of the Commission who delivered it, along with other mail, to the Post Office before 3:00 p.m. for the 3 o'clock mailing.
On April 3, 1985, Streeting wrote to Monette and asked that her letter of resignation be revoked. At 1:57 p.m. of that day, she called a courier to have the letter delivered to Monette. The letter was picked up at 2:21 p.m. and delivered to the Com mission office at 3:00 p.m. Monette was handed the letter in his office at 3:10 p.m.
Section 26—"ceases to be an employee on the day as of which ..."
Counsel for the plaintiff argues that the accept ance letter signed by Mr. Carrière was not effec tive because it did not respond to an unrevoked letter of resignation. It is argued that section 26 of the Public Service Employment Act gives an employee "a day of grace" within which to revoke a resignation. This argument is based on the assumption that the policy behind section 26 is to ensure that employees do not resign precipitously. A decision of the Public Service Staff Relations Board was referred to: Friesen v. Treasury Board, [1979] P.S.S.R.B., File 166-2-6159 (Norman). At page 12 of that decision, a quotation from another P.S.S.R.B. decision was quoted:
The decision to quit must be a rational, considered step and cannot be concluded to reflect an employee's true wish if seized upon in an aberrant moment of impetuosity.
And at page 11 of the Friesen decision, a quotation from Brown and Beatty's Canadian Labour Arbi tration is found:
... the act of quitting embraces both a subjective intention to leave one's employ and some objective conduct which manifests an attempt to carry that intention into effect.
Thus, it is argued, that section 26 is designed to give the employee the whole day within which his or her resignation is accepted to revoke that resig nation. This interpretation is based on the words in section 26: "the employee ceases to be an employee on the day as of which the deputy head accepts his
resignation in writing". It is argued that the termi nation of an employee's status as such must be at the end of that day and therefore, the employee is purposely given an opportunity to revoke his or her resignation up to the end of the day. In this case, the resignation was revoked before the end of the day on which the letter accepting that resignation was signed, April 3, 1985.
I do not interpret section 26 in this manner. I agree that the section is not well drafted. Never theless, in my view, it deals with two distinct aspects of a resignation: (1) the conditions under which an effective resignation and acceptance thereof will have occurred (i.e. it has to be in writing); (2) the date as of which an employee who has resigned ceases to be an employee. The refer ence to "on the day" in my view, applies only to the latter. I do not think it speaks to the time of day or date as of which a resignation or acceptance of a resignation occurs.
An employee may tender a resignation which indicates an intention to terminate employment at some future date (e.g. the end of the month). An employee may tender a resignation which indicates an intention that the termination of employee status be treated as having occurred at an earlier date (in this case, both the letter of resignation and the acceptance specified that the termination of employment would be considered to have occurred on March 28, 1985). In my view, the wording in section 26, which refers to "on the day" deals with the situation in which a letter of resignation or the acceptance thereof, specifies no date for the termi nation of the employment relationship. In such a case, the employment relationship will cease to exist on the day the resignation is accepted. The words in question do not have anything to say about the date or time as of which a resignation is accepted (e.g. the end of the day, beginning of the day, middle of the day on which the acceptance in writing is given).
Section 26—Communication of an Acceptance
Counsel for the plaintiff's second argument is that the word "accepts" in section 26 of the Public Service Employment Act requires a communica tion of the acceptance to the employee. It is argued that a deputy head who signed a writing purport ing to accept a resignation, but did not send that
writing to the employee, or otherwise communicate its content to the employee, could not be said to have accepted the employee's resignation. An analogy is drawn to the rules which pertain in contract law. I quote from Cheshire and Fifoot's Law of Contract (10th ed., 1981), at page 32:
Proof of an offer to enter into legal relations upon definite terms must be followed by the production of evidence from which the courts may infer an intention by the offeree to accept that offer. It must again be emphasised that the phrase `offer and acceptance', though hallowed by a century and a half of judicial usage, is not to be applied as a talisman, revealing, by a species of esoteric art, the presence of a contract. It would be ludicrous to suppose that businessmen couch their communica tions in the form of a catechism or reduce their negotiations to such a species of interrogatory as was formulated in the Roman stipulatio. The rules which the judges have elaborated from the premise of offer and acceptance are neither the rigid deductions of logic nor the inspiration of natural justice. They are only presumptions, drawn from experience, to be applied in so far as they serve the ultimate object of establishing the phenomena of agreement, and their application may be observed under two heads, (a) the fact of acceptance and (b) the communication of acceptance.
Decisions of the Public Service Staff Relations Board interpreting section 26 in the light of the general principles of contract law respecting offer and acceptance were cited: Lafleur v. Treasury Board, [1976] P.S.S.R.B., File 166-2-2413 (Sim- mons) and the Friesen decision (supra).
Counsel for the defendant argues that the gener al rules of contract law have no application in the area of Crown employment. He argues that they are "two separate universes of discourse". As I understand this argument, it is that historically, employees of the Crown were hired at pleasure; see: Phillips v. The Queen, [1977] 1 F.C. 756, at page 758 (T.D.); deMercado v. The Queen et al., (T-2588-83, Cattanach J., judgment dated March 19, 1984, T.D., not reported); Canadian Air Traf fic Control Association v. The Queen, [1985] 2 F.C. 84 (C.A.); Evans v. Canada (Government of) (1986), 4 F.T.R. 247 (T.D.). Counsel relies par ticularly on the Canadian Air Traffic Control Association case and the comments of Mr. Justice Marceau at pages 102-103:
... the issue cannot be resolved in the public sector on the same terms as in the private sector. Collective bargaining with
respect to employer-employee relations in the private sector is, of course, basically governed by statute law, but provincial labour relations legislation does not cover every aspect and leaves room for the introduction of superadded elements which will carry necessarily the application of common law rules ... One may easily understand, therefore, that the consideration of the issue we are concerned with has always resolved [sic], in the private sector, around notions of representation of agency, of privity of contract, and has been seen as bringing into play mainly the rules of construction of agreement. In the federal public sector, on the contrary, the legislation, as I read it, simply does not allow the introduction of such superadded elements, the position and role of the parties to the collective bargaining, the authority they both have and the binding effect of their agreement being all established exclusively and peremptorily by statute. If this is the case, and it seems to me clearly that it is, it would be inappropriate to seek a solution to the issue, when a Federal Public Service collective agreement is involved, by having recourse to the common law doctrines of agency, of representation, or of privity of contract, and by reducing it to a question of intention of the parties. The solution, if not spelled out, can only be inferred from the principles adopted by the legislation and with sole regard to the scheme established by Parliament.
The principle that in the absence of statutory provision to the contrary a civil servant is appoint ed at pleasure, is expressly preserved by section 24 of the Public Service Employment Act. This prin ciple, it is argued carries with it the rule that termination of a civil servant's tenure can only occur with the consent of the Crown. From that, it is argued that the duty to ascertain whether a resignation has been accepted rests with the employee and there is no requirement that the deputy head communicate his or her acceptance of a resignation to the employee.
I have difficulty with this argument. I simply do not see the relevance of the historically antecedent rules respecting the appointment at pleasure of Crown servants (even as codified by section 24). Three of the cases cited, respecting the inability of a Crown servant to terminate his or her employ ment, deal with members of the military: Reg. v. Cuming (1887), 19 Q. B. D. 13; Marks v. The Commonwealth (1964), 111 C.L.R. 549 (Aust. H.C.); O'Day v. The Commonwealth (1964), 111 C.L.R. 599 (Aust. H.C.). This is an entirely differ ent situation from that of civil servants in general. What is more, I do not see that the position of a civil servant, when it comes to the capacity to resign, is much different from that of an employee of any private sector employer. In the case of a private sector employee, the contract of employ ment is terminated by mutual agreement (see,
Christie, Innis M., Employment Law in Canada, 1980, at page 323), but there is no termination of the employment relationship until the employer accepts the employee's tendered resignation. As a practical matter, of course, when an employee refuses to return to work (and will not be required to do so by the courts ordering specific perform ance) the employer is effectively forced to accept the resignation. It is not likely that an employer, neither private sector nor the Crown, would con tinue to pay an individual who refuses to come to work.
With respect to the other cases (especially the Canadian Air Traffic Control Association case), I take them to say no more than that when there is a statutory code set out, the text of that code gov erns. I do not take those decisions as saying that the ordinary principles of contract law have noth ing to say about the interpretation of the terms under which civil servants are employed pursuant to the Public Service Employment Act. Conse quently, the Public Service Staff Relations Board cases which were cited were not incorrect in look ing to the general principles of contract law for guidance. Those decisions held that in determining whether an individual had resigned, it was neces sary to ascertain whether there has been, in fact, a real intention to do so (as opposed, for example, to being "persuaded" by a superior to take such action).
As I understand counsel for the defendants' argument, it is that given section 26 of the Public Service Employment Act and its historical antece dents, the word "accepts" in the section must be interpreted in a very strict sense. In this regard, reference was made to Flanagan (H.) v. The Queen et al., [1987] 2 C.T.C. 167, where the Federal Court of Appeal held that "sending" (in the Income Tax Act) did not carry with it a requirement of "receipt". Reference is also made to the definition of the word "accept" found in Webster's Ninth New Collegiate Dictionary. The definition in question equates "accept" with "to receive". I notice, however, that one of the other definitions of "accept" found in this definition in Webster's Dictionary is:
accept ... to make a favorable response to <' an offer>
A response would certainly carry with it a require ment of communication to the opposite party.
Counsel for the plaintiff's argument is that com munication of an acceptance is required and that in this case, it did not occur because: (1) there was no actual communication to the plaintiff prior to her revocation of the resignation; (2) there was no constructive communication of the acceptance to her because she had not made the Post Office her agent for the purpose of receiving the acceptance (she had used a courier service to send both her letter of resignation and her letter of revocation). A discussion of the jurisprudence concerning means of communication for offers and accept ances can be found in Waddams, The Law of Contracts (2d ed., 1984), at pages 68-70, 75-79, and in Cheshire and Fifoot's Law of Contract, (10th ed., 1981), at pages 41-49.
I return then, to the issues in this case: what constitutes acceptance ("accepts") for the pur poses of section 26 of the Public Service Employ ment Act; did it occur on the facts of this case, prior to the revocation of the resignation by the plaintiff. In my view, accepting an employee's resignation requires more than simply signing a writing to that effect. I do not think I need to deal, however, with the issue of exactly at what point a deputy head will have been held to have "accept- ed" a resignation, in all cases, or what kind of "communication" of an acceptance is required. Suffice it to say, I do not think the employee need actually receive notice of the acceptance before it becomes effective. That is not necessary under the ordinary rules of offer and acceptance in contract law and it would seem to me to do violence to the wording of section 26 of the Public Service Employment Act. That wording speaks of "accepts in writing"; it does not say "communicated to the employee".
In the present case, an acceptance in writing was signed by the deputy head and it was delivered to the Post Office before the revocation was received. Thus, the letter of acceptance had been signed by the deputy head, and effectively put out of his power to countermand, before the letter of revocation was received. In such circumstances, I think acceptance of the plaintiff's resignation
occurred before the letter of revocation was received.
Indeed, application of the common law rules respecting communication by post, would lead, in my view, to the same conclusion. In the circum stances of this case, (the geographical proximity of the parties) the use of the post and the use of a courier service are substantially equivalent means of communication. I do not think that the plain tiff's use of a courier service, should lead to an inference that that was the prescribed mode of communication to the exclusion of a response by post. It is highly unlikely that the plaintiff would have expected a response from the deputy head to have been sent by courier.
Conclusion
The question posed, pursuant to Rule 474 [Fed- eral Court Rules, C.R.C., c. 663], is answered as follows:
The letter of Carrière dated April 3, 1985, constitutes an effective and binding acceptance of Streeting's letter of resignation dated March 29, 1985.
 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.