T-4656-77
Gerald Morin (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Decary J.—Ottawa, January 22,
23, 24 and July 26, 1979.
Public Service — Plaintiff absent from position for more
than a week — Deputy Minister declared position vacant
pursuant to s. 27 of the Public Service Employment Act —
Deputy Minister considering only facts as reported by plain
tiffs superior and without knowledge of plaintiffs reasons for
absence in determining if absence beyond plaintiffs control —
Whether or not Deputy Minister fairly and properly exercised
his discretion — Whether or not certificate declaring position
abandoned is invalid — Public Service Employment Act,
R.S.C. 1970, c. P-32, s. 27.
Plaintiffs position was declared abandoned pursuant to sec
tion 27 of the Public Service Employment Act. The Deputy
Minister in considering whether or not the reasons for plain
tiffs absence were beyond his control, for the purposes of that
section, considered only the facts reported by the plaintiffs
superior and did not take into account the problems that had
been created for the plaintiff prior to his absence. The issue is
whether or not the Deputy Minister exercised fairly, equitably
and reasonably the discretion given him under section 27.
Held, the action is allowed. One of the three conditions to be
met before a Deputy Minister can declare that a position has
been abandoned is that he must hold the opinion that the
reasons for absence were not beyond the employee's control.
The Deputy Minister cannot rely on section 27 if he does not
know all the reasons for the employee's absence, for he must
know those reasons in order to exercise fairly, equitably and
reasonably the discretion conferred on him by the expression
"in the opinion of the deputy head". The annoyances, interfer
ence, pettiness and harassment to which plaintiff was subjected
are facts that must be taken into consideration in deciding
whether the reasons for absence were, in the Deputy Minister's
opinion, within or beyond plaintiffs control. The fact that only
the facts reported by plaintiffs superior, and that the effect of
the problems created for plaintiff were not taken into account,
vitiates the exercise of the Deputy Minister's discretion.
Pure Spring Co. Ltd. v. Minister of National Revenue
[1946] Ex.C.R. 471, considered.
ACTION.
COUNSEL:
Louise Caron for plaintiff.
Yvon Brisson for defendant.
SOLICITORS:
Louise Caron, Ste. Foy, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following is the English version of the
reasons for judgment rendered by
DECARY J.: In essence, the issue is whether the
facts established, the exhibits filed at the hearing
and the conclusions that may be drawn from these
facts and exhibits allowed the Deputy Minister of
Public Works to exercise fairly, equitably and
reasonably the discretion he is given under section
27 of the Public Service Employment Act, R.S.C.
1970, c. P-32, to determine whether the reasons
for plaintiff's absence were beyond his control for
the purpose of declaring that he had abandoned
his position.
Section 27 reads as follows:
27. An employee who is absent from duty for a period of one
week or more, otherwise than for reasons over which, in the
opinion of the deputy head, the employee has no control or
otherwise than as authorized or provided for by or under the
authority of an Act of Parliament, may by an appropriate
instrument in writing to the Commission be declared by the
deputy head to have abandoned the position he occupied, and
thereupon the employee ceases to be an employee.
There are three conditions set out in section 27
that must be met before a Deputy Minister can
declare that a position has been abandoned: there
must be an absence of over one week; he must be
of the opinion that the reasons for the absence are
not beyond the employee's control; and finally, he
must, by an appropriate instrument in writing,
notify the Public Service Commission that the
employee has abandoned his position.
In my view the Deputy Minister cannot rely on
this section if he does not know all the reasons for
the employee's absence, and it is only once these
reasons are known that he is capable of exercising
the discretion the Act confers on him by the
expression "in the opinion of the deputy head",
that is of determining, in the case at bar, whether
the reasons for the absence are beyond or within
the employee's control. If the Deputy Minister
exercises his discretion without knowing all the
reasons for the absence, it cannot be said that this
discretion has been exercised fairly, equitably and
reasonably. In view of the possible consequences of
such action, justice and equity require that section
27 be applied with the greatest care.
In the case at bar the annoyances, interference,
pettiness and harassment to which plaintiff was
subjected are facts that must be taken into con
sideration in deciding fairly whether the reasons
for the absence were, in the opinion of the Deputy
Minister, within or beyond plaintiff's control. It
should be noted that in eight years of service in the
Public Service, it was not until the last two years
that plaintiff had problems with his superiors. This
requires us, in my view, to recognize that his
behaviour in his work environment for six years
was normal. When charged with incompetence in
1975, a few months before section 27 was applied
against him, he won his grievance before the
Public Service Commission.
In my view the fact that an employee does not
answer a letter does not mean that he does not
have one or more reasons beyond his control that
are preventing him from being at his position. In
the case at bar, a junior employee wrote to plain
tiff and, six days after the end of the period of a
few days allowed for replying to the said letter, the
Deputy Minister wrote to the secretary of the
Public Service Commission stating that the
employee had abandoned his position. The evi
dence indicated that plaintiff did not reply to the
said letter because he had always been of the view
that the person who had written it was not in a
position to give him orders.
There is nothing in the record to indicate that
information concerning the reasons for the absence
was sought, except from the employees who had
testified against plaintiff a few months earlier
before the Public Service Commission, which dis
missed the complaint of incompetence. Despite the
fact that the competence of plaintiff had been
recognized, and despite the serious nature of this
second form of action that was being taken, which
had the same effect as the first respecting compe
tence, namely the loss of his employment, the
Deputy Minister did not feel he should himself ask
plaintiff the reasons for his absence.
If a Deputy Minister does not make inquiries of
the employee as well as of his superiors, I cannot
really believe that he is able and in a position to
exercise his discretion fairly, equitably and reason
ably in order to determine the validity of action
which has as many consequences as a declaration
that the position has been abandoned. The possible
loss of employment and the age of plaintiff, who is
in his fifties, his eight years of service in the Public
Service, the recognition of his competence four
months earlier, his service that went unchallenged
until a new regional director arrived, the resulting
personality conflict, which certainly cannot have
been more the fault of the plaintiff than of the
regional director, and which I think can be imput
ed, having regard to the testimony before me,
chiefly to the most senior individual who was
present in the Court before me, but who did not
testify—in my view all these facts made it neces
sary to act not only cautiously and sensibly, but
also decently and fairly, and for effective inquiries
to be made of plaintiff regarding the reasons for
his absence before the conclusion was drawn that
they were not beyond his control.
If we examine the facts disclosed at the hearing
we cannot, if we wish to preserve the notion of
what is fair and equitable, avoid concluding that
plaintiff's absence was due precisely to conduct
caused by the pettiness, harassment, upsets and
humiliation he was subjected to. There was, for
example, the proceeding to dismiss him for
incompetence, which had been dismissed by the
Public Service Commission four months earlier.
Recourse to such a draconian measure as a decla
ration that the position had been abandoned such a
short while later is certainly not evidence of decen
cy, much less of fairness. Plaintiff was "at the end
of his tether", as the expression goes, as a result of
all these occurrences. These circumstances explain
how an employee can be absent from his position
for reasons beyond his control, for he has lost the
courage to face problems which are being made
worse for him as he goes along.
In my view the discretion provided for in section
27 of the Act must be exercised fairly, equitably
and reasonably. This necessarily implies ascertain
ing the cause of the reasons plaintiff had for being
absent. I do not think, on the basis of the hearing
before the Court, that the Deputy Minister was
aware of all these reasons, and he could not there
fore have been of the opinion that there might be
reasons beyond plaintiff's control. In order to be
able to form the opinion that they are beyond or
within the control of an employee, it is necessary
to know all the reasons.
The Deputy Minister was not aware of all the
facts and, not having plaintiffs version, could not
exercise his discretion fairly, equitably and reason
ably as he had to do in order to determine the
nature of the reasons for the absence and be able
to declare, if necessary, that the position had been
abandoned. In view of the evidence on record the
declaration that the position had been abandoned
is invalid, since the Deputy Minister had to deter
mine whether the reasons for the absence were
beyond or within the employee's control in order to
be able to make such a declaration. The facts
established indicate that the absence was caused
by his conduct, which was in turn caused by the
constant problems of which he had been a victim
for two years.
Before discussing the rules governing the exer
cise of discretion, I think it would be well to
summarize certain facts I consider to be decisive:
on May 9, 1975 there was a complaint by the
Department of Public Works with respect to plain
tiffs incompetence as an information officer;
plaintiff appealed to the Public Service Commis
sion; plaintiffs superior and the regional director,
to whom plaintiff was answerable, were the only
witnesses, apart from plaintiff, of course; the
Chairman of the Public Service Commission
Appeal Board, Mr. J. Vinokur, who heard the
case, dismissed the complaint of incompetence: in
other words, he declared plaintiff to be competent
as an information officer; shortly before this pro
ceeding plaintiff had been sent from Montreal to
Ottawa to perform temporary duties there, while
he officially still occupied the position of an infor
mation officer in Montreal; plaintiff never saw an
official document for this transfer; he was given
the assignment of preparing the French version of
signs identifying projects undertaken by the
Department; plaintiff continued to be the victim of
interference, pettiness and harassment; repeated
changes of work location, the use of his office by
other people, the requirement that he keep the
door of his office open, and the requirement that
he fill out informally prepared daily attendance
sheets when this was not the official practice; in
the judgment of the Public Service Commission
Appeal Board, Mr. Vinokur did not consider the
fact that plaintiff had not established a press
clipping service to be very serious, particularly
since the Department refused to pay for the news
papers; with respect to a letter sent to a citizen in
error, a letter signed by Mr. Laurendeau, the
Chairman blamed Mr. Laurendeau for not having
checked the documents he was signing; with
respect to the unflattering remarks plaintiff had
made concerning his superior in the presence of
another employee of the Department, the Chair
man was of the view that this was evidence of a
personality conflict and that there was a lack of
co-operation only with the Regional Director, and
not with anyone else in the Department; the
matter was regarded as a disciplinary matter
rather than one involving competence; with respect
to a notice in a publication put out by the Depart
ment, and to the information used when a building
is inaugurated, the Chairman came to the conclu
sion that plaintiff had never been given precise
instructions; the question of an expense account
was also considered to be a disciplinary matter,
and not a question of competence; and concerning
the incident in the Director General's office in July
1974, when plaintiff was told verbally that his
services were not satisfactory and that he would be
transferred to Ottawa, it is quite natural that he
was upset by this.
This appeal to the Public Service Commission
Appeal Board was won by plaintiff, who was found
to be competent, and in fact in some cases it was
his superiors who were blamed for a lack of preci
sion in their instructions.
One fact that is striking and that must surely be
taken into account is the fact that this case con
cerning incompetence was heard in June 1975, and
that the Department, which lost the case, hastened
to use another device, that of section 27, which is
rarely used, barely four months later.
The evidence indicated that there was a conflict
of temperaments between the Montreal Regional
Director and plaintiff. The fact there was a con-
flict of temperaments does not justify an attempt
to get rid of an employee through a war of attri
tion. The absence of more than six days, caused by
the transfer to Ottawa and the behaviour of the
superiors toward plaintiff, was the opportunity
that had been awaited. These superiors, in Mon-
treal and Ottawa, had let plaintiff know he was
not wanted. It is not surprising that in such cir
cumstances his nerves became frayed and he was
absent for over a week. In my view his conduct was
typical of persons in his situation, and his absence
was beyond his control. Plaintiff could not struggle
alone indefinitely against what may be regarded as
amounting to a plot. The fact that plaintiff must
have been worn down was not taken into consider
ation when the Deputy Minister weighed the rea
sons for his absence. In my view the resort to
section 27 was the next step following the attempt
ed dismissal for incompetence, an attempt in
which the Department had failed.
This manner of proceeding indicates that the
rules established for the exercise of discretion were
not followed; Thorson P., of the Exchequer Court,
as he then was, summarized these rules as follows
in Pure Spring Co. Ltd. v. Minister of National
Revenue:'
The Minister's discretion under section 6(2), although very
wide, has limits, which are inherent in the concept of discretion
itself, as indicated by the House of Lords in Sharp v. Wake-
field ((1891) A.C. 173 at 179) where Lord Halsbury L. C.
said:
"Discretion" means when it is said that something is to be
done within the discretion of the authorities that that some
thing is to be according to the rules of reason and justice, not
according to private opinion: Rook's Case (5 Rep. 100, A);
according to law, and not humour. It is to be, not arbitrary,
vague, and fanciful, but legal and regular. And it must be
exercised within the limit, to which an honest man competent
to the discharge of his office ought to confine himself:
(Wilson v. Rasta!! (4 T.R. at p. 754)
In the case at bar, reason and justice do not
appear to have been a guide to the exercise of
discretion, since plaintiff was not consulted to
determine the reasons for his absence; the declara
tion that the position had been abandoned seems to
have been made out of spite for the Board's deci
sion, in which plaintiff had won his case by being
declared competent.
' [1946] Ex.C.R. 471 at p. 479.
Thorson P. set forth the principles established
by precedent that govern the exercise of discretion,
ibid., pp. 482 and 484:
The principles that should govern a person entrusted with
administrative discretionary powers affecting rights have been
laid down with varying degrees of precision and clarity. He
must not exercise his discretion "in an oppressive manner, or
from any corrupt or indirect motive"—Tindal C. J. in The
Queen v. Governors of Darlington School ((1884) 6 Q.B. 682
at 715). He should act as "a reasonable man desirous of doing
justice"—Knight Bruce V. C. in In re Fremington School
((1847) 11 Jur. 421 at 424). There should be a fair investiga
tion of the facts and just means of explanation and defence
should be afforded—Lord Langdale M. R. in Willis v. Childe
((1850) 13 Beay. 117 at 130). The discretion should be exer
cised "with an entire absence of indirect motive, with honesty
of intention, and with a fair consideration of the subject"—
Lord Truro L.C. in In re Beloved Wilkes' Charity ((1851) 3
MacN. & G. 440 at 447). If the authorities charged with
discretionary duties have acted in an unreasonable manner,
such as acting on a preconceived general resolution when they
should have dealt with the particular case before them, they
have not exercised their discretion—Wightman, J. in The
Queen v. Sylvester ((1862) 31 L.J. (N.S.) (M.C.) 92 at 95). In
Hayman v. Governors of Rugby School ((1874) 18 Eq. 28 at
68) Sir R. Malins V. C. laid it down that discretionary powers,
or arbitrary powers as he described them, should be "fairly and
honestly exercised".
A person entrusted with the formation of an opinion must
honestly exercise his judgment—Lord Herschell in Allcroft v.
Lord Bishop of London ((1891) A.C. 666 at 680). In Leeds
Corporation v. Ryder ((1907) A.C. 420 at 423) Lord Loreburn
L.C. said, in the House of Lords, that justices of the peace who
had a discretionary power to grant licences "must act honestly
and endeavour to carry out the spirit and purpose of the
statute" and added:
The justices ... act administratively, for they are exercis
ing a discretion which may depend upon considerations of
policy and practical good sense—they must of course, act
honestly. That is the total of their duty.
and the Earl of Halsbury, at page 424, applied the same test of
"an honest desire to carry out what the Act of Parliament
intended to be done". The importance and relevancy of this
case lies in its emphasis on the fact that the exercise of
administrative discretion may depend on considerations of
policy and that the administrative officer entrusted with it must
honestly carry out the intention of Parliament.
In the case at bar, the fact that only the facts
reported by plaintiffs superior were considered,
and that the effect of the problems created for
plaintiff was not taken into account, in my view
vitiates the exercise of the Deputy Minister's dis-
cretion. The Court is able to control the exercise of
the discretion, as Thorson P. stated at p. 489 ibid.,
because that exercise was not fair and proper:
The inability of the court to control or interfere with the
exercise of the discretion, if it has been fairly and honestly
exercised, is repeatedly stated by Sir R. Malins V.C. in
Hayman v. Governors of Rugby School ((1874) 18 Eq. 28).
It is my opinion that this device was chosen,
with no hesitation regarding the choice of means,
in order to wear plaintiff down. It was because of
this condition that he was absent, and this condi
tion was beyond his control but within the control
of those who had worn him down. To decide in
such a case, without knowing plaintiffs condition,
that his absence is not beyond his control, is to
dispense with justice, fairness and reasonableness.
Having duly taken all the facts before me into
account, I must conclude that the discretion was
not exercised fairly and properly, and that conse
quently the position was not abandoned, as the
certificate of the Deputy Minister is invalid.
In view of all these facts, I find that the declara
tion that the position had been abandoned was not
validly made, and that plaintiff has not ceased to
occupy his position since September 30, 1975, that
he still occupies it and that he is entitled to all
wages, wage increases and fringe benefits as if
there had never been an alleged abandonment of
the position, and to interest on these amounts from
the date on which each was due.
If the parties cannot agree on the amount of the
wages, wage increases, fringe benefits and dam
ages to which plaintiff is entitled with interest, the
Court shall determine the amount thereof.
The action is allowed with costs.
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.