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was accepted before it was revoked.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.