Macdonald v. Canada
T-3236-90
Gibson J.
3/11/98
26 pp.
Action for declaration allegation plaintiff wrongfully abandoned position illegal, and for damages-Plaintiff employed with Department of Trade and Commerce (later Department of Regional Industrial Expansion) since 1951-In May 1984 twice suspended for failing to (i) carry out instructions regarding work assignments, (ii) comply with instructions regarding telephone conduct, hours of work, work assignments-By August 1984 relationship between plaintiff, management deteriorated beyond salvation-On August 21 plaintiff obtaining physician's certificate of disability for duty indicating incapable by reason of illness or injury of working at normal occupation, subject to reassessment in one week's time-Plaintiff attending at place of work on August 30 whereupon required to surrender security pass, denied access-Subsequently providing physician's certificate indicating estimated date of return to duty October 1, 1984-On October 9, plaintiff not having returned to work, Director of Human Resources declaring plaintiff had abandoned position pursuant to Public Service Employment Act, s. 27-Plaintiff deprived of all benefits, including accumulated pension benefits based on more than 33 years of service-Union (Professional Institute of the Public Service-PIPS) negotiating agreement with Department on plaintiff's behalf-Agreement provided notice of abandonment would be rescinded, all records relating to it would be deleted from plaintiff's file; all notices of disciplinary action would be removed from plaintiff's file; suspensions imposed would be rescinded and plaintiff would be paid for lost days; plaintiff would be granted sick leave with pay to November 2 and vacation leave with pay to December 28 when plaintiff would retire-PIPS and/or plaintiff agreeing to withdraw all outstanding grievances, references to adjudication, complaints-Plaintiff agreeing to forego any legal proceedings arising out of employment in Public Service up to date of agreement-Plaintiff testifying signed agreement under duress-Believed could at later date disavow agreement by reason of duress based on advice given to him at that time-(1) Action commenced on December 7, 1990 not outside 6-year limitation period imposed by Limitations Act, R.S.O. 1980, c. 240, s. 45-While October 1984 notice of abandonment culminating event in dispute between parties, principal issue before Court whether plaintiff signed December 1984 agreement under such duress as to render agreement unconscionable bargain-(2) Agreement constituting complete bar to action-In summer of 1984 no doubt in plaintiff's mind management would seize any opportunity to fire him, creating extreme stress in workplace, exhaustion-But no evidence condition precluding obtaining medical certificate to justify continued absence for medical reasons-Against test for unconscionability set out in Blackmore v. Cablenet Ltd. (1994), 163 A.R. 41 (Q.B.), although inequality of bargaining position between Department and plaintiff, arising out of distress of weaker party i.e. plaintiff, Department not unconscientiously using position of power to achieve advantage-Agreement not substantially unfair to weaker party or sufficiently divergent from community standards of employer/employee morality that should be set aside-Signing of agreement outward expression of plaintiff's intention-Unexpressed intention immaterial-(3) If previous finding wrong, action might demonstrate special circumstances taking it outside general principle that in absence of special circumstances, dismissed public servant not having right to bring action for wrongful dismissal: Ricafort v. Canada (Treasury Board) (1988), 24 F.T.R. 200 (F.C.T.D.)-(4) Defendant's failure to adduce any evidence at trial not basis for adverse inference against it-No obligation on defendant to file evidence if counsel satisfied plaintiff, on whom onus lay, simply failed to make out case-Nothing in evidence "begged" for reply evidence, unlike Apotex Inc. v. Canada (Minister of National Health and Welfare), [1988] F.C.J. No. 1096 (T.D.) (Q.L.)-Public Service Employment Act, R.S.C. 1970, c. P-32, s. 27.