T-2767-84
Mariette Mudarth (Plaintiff)
v.
Her Majesty The Queen in Right of Canada as
represented by the Minister for the Department of
Public Works (Defendant)
INDEXED AS: MUDARTH v. CANADA (MINISTER OF PUBLIC
WORKS) (T.D.)
Trial Division, Addy J.—Ottawa, November 4 and
10, 1988.
Public service — Termination of employment — Whether
employment can be terminated because of "discontinuance of
function" within Act s. 29(l) where duties continue to be
performed within Civil Service — Management rights.
Before the end of her four-year contract as a secretary with
the Department of Public Works, the plaintiff was advised that,
because of a restraint policy, her position was being abolished
and that her services would no longer be required. Her duties
would be performed by several other employees.
This is an action for a declaration that the defendant had no
authority to terminate her employment prior to the end of her
contract and for compensation for the consequent loss of wages
and other benefits.
Held, the action should be dismissed.
The issue is whether the employment was in fact terminated
either "because of lack of work or because of the discontinu
ance of a function" within the meaning of subsection 29(1) of
the Public Service Employment Act. Since in this case there
was no lack of work, the issue turned solely on the question of
whether there had been a "discontinuance of a function".
It was admitted that the work formerly assigned to the
plaintiff continued to be performed by others. It was divided up
among several employees. However, to conclude that the func
tion was therefore not discontinued would preclude the Govern
ment from abolishing any position and discharging the
employee unless some part of the tasks or work performed by
that employee was completely discontinued and no longer
performed by any other person or group in the Civil Service.
This would substantially preclude reorganization of the depart
ments and branches of the service by the redistribution of tasks
and would, to a large extent, paralyze any updating of adminis
trative procedures. Such a radical interpretation of subsection
29(1) was not required to give full effect to the scheme and
spirit of the legislation.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Financial Administration Act, R.S.C. 1970, c. F-10, ss. 5
(as am. by S.C. 1980-81-82-83, c. 170, s. 3; 1984, c. 31,
s. 4), 7 (as am. by S.C. 1984, c. 21,s. 78; c. 39, s. 41).
Interpretation Act, R.S.C. 1970, c. 1-23.
Public Service Employment Act, R.S.C. 1970, c. P-32, s.
29(1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Coulombe v. Canada, T-390-84, Cattanach J., judgment
dated 5/4/84, F.C.T.D., not reported; Public Service
Alliance of Canada et al. v. Canadian Grain Commission
and Canada (Treasury Board) et al. (1986), 5 F.T.R. 51
(F.C.T.D.).
DISTINGUISHED:
Gonthier et al. v. Canada et al. (1986), 77 N.R. 386
(C.A.).
AUTHORS CITED:
Funk and Wagnalls New Standard Dictionary, 1942,
"function".
Shorter Oxford English Dictionary, 3rd. ed., Oxford:
Clarendon Press, 1959, "function".
The Random House Dictionary of the English Language,
New York: Random House, 1966, "function".
Webster's Third New International Dictionary (Una-
bridged), Springfield: G & C Merriam Company,
1976, "function".
COUNSEL:
Andrew J. Raven for plaintiff.
Brian J. Saunders for defendant.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
ADDY J.: The plaintiff was employed as a public
servant in the secretarial capacity under a four-
year contract with the Department of Public
Works. Her employment commenced in May 1982
and was to terminate at the end of March 1986.
Because of the institution of a restraint policy in
early 1983 to reduce staff for economic reasons,
she was advised in writing in March 1983 that her
position was being abolished and that as a result,
her services would no longer be required after the
1st of July 1983.
She is suing for a declaration that the defendant
had no authority to terminate her employment
prior to the end of her four-year contract in March
1986 and claims compensation for the consequent
loss of wages and other benefits. The parties have
agreed that the damages as of the day of trial,
should the plaintiff prove to be successful in her
claim, amount to $48,974.59.
The sole issue before the Court is whether or not
the plaintiff's employment was legally terminated
by the defendant pursuant to subsection 29(1) of
the Public Service Employment Act, R.S.C. 1970,
c. P-32. It was agreed by counsel arguing the
matter at trial that, if the employment was in fact
terminated either "because of lack of work or
because of the discontinuance of a function" as
provided for in that section the plaintiff must fail
in her claim, otherwise she must succeed. Subsec
tion 29(1) of the Public Service Employment Act
reads as follows:
29. (1) Where the services of an employee are no longer
required because of lack of work or because of the discontinu
ance of a function, the deputy head, in accordance with regula
tions of the Commission, may lay off the employee.
The plaintiff had been hired as an assigned
secretary by the Department, that is, she was part
of a secretarial pool of the Department and was
assigned to a specific project team consisting of
engineers, architects and technicians who acted as
a unit, furnishing certain services. Her secretarial
work was performed for the members of that team
in the geographical area of the regional headquar
ters in Edmonton where the team was carrying out
its work. She was the only secretary used by that
team. Following the termination of her employ
ment, the members of the team were obliged to use
the Word Processing Pool for their typing and
correspondence. Other duties of a secretarial
nature such as reservations for trips etc. were
performed by members of an existing group known
as the Special Services Group. The task of answer-
ing telephones formerly performed by the plaintiff
was shared by the members of the project team.
The head of the team had been faced with
implementing the policy of restraint. At the same
time he realized that there existed a need for
increased architectural and engineering services
and decided that an extra person-year could be
provided by releasing the plaintiff. Before coming
to that decision he made several inquiries with the
Word Processing Pool and with Special Services to
satisfy himself that the work could be done satis
factorily without the services of a secretary being
required.
There was ample evidence that, subsequent to
the release of the plaintiff, not only was there no
lack of work for the team but, on the contrary,
more engineers, architects and technicians were in
fact hired and the work of the team increased.
Therefore the work formerly performed by the
plaintiff must also have increased. There was no
evidence that any reduction in work had been
anticipated previously. The whole issue must
therefore turn solely on the question of whether
there had been a "discontinuance of a function" as
mentioned in subsection 29(1) above.
No other secretary was hired to perform the
secretarial duties for the team nor was there a
secretarial position created elsewhere in the
Edmonton office to do the work.
The argument of counsel for the plaintiff in
essence was that, since the actual work formerly
assigned to the plaintiff continued to be performed
for the team, the "function" was not discontinued:
it was merely distributed between the Word Proc
essing Pool, Special Services and the individual
members of the team itself. Counsel for the
defendant on the other hand argued that the func
tion related to the employee and that where, as in
the present case, for reasons of economic restraint
and budget cutbacks the services performed by an
employee are distributed among other employees
or branches of the service, the function of that
employee has been eliminated or discontinued.
The common law generally recognizes the power
of an owner or a general manager of an enterprise,
business or undertaking to hire and fire employees
subject to any contractual rights which the
employees might have. Section 7 of the Financial
Administration Act, R.S.C. 1970, c. F-10 [as am.
by S.C. 1984, c. 21, s. 78; c. 39, s. 41], gives the
Treasury Board the right to determine the man
power requirements of the Public Service of
Canada and to provide for the allocation and
effective utilization of manpower and resources.
Section 5 [as am. by S.C. 1980-81-82-83, c. 170, s.
3; 1984, c. 31, s. 4] of that same Act gives the
Treasury Board the power to organize any part of
the Public Service and to determine and control its
establishments as well as power over such things as
the financial management, managerial proceedings
and financial commitments and expenditures.
In addition to limitations imposed by collective
agreements, the very broad and general powers
granted to the defendant Department by its Act
and the Financial Administration Act can be and
are in fact limited by provisions in other statutes.
Among those is the Public Service Employment
Act and the very section which is presently under
consideration.
The Act does not define the word "function" nor
is it defined in the Interpretation Act [R.S.C.
1970, c. I-23]. Failing a specific statutory defini
tion of a word the interpretation must take into
account one of the common ordinary grammatical
meanings of the word most suitable to the context
and to the general scheme of the statute in which
it is used. It is also important to attempt to
interpret it where possible without doing violence
to other statutes which deal with related subject-
matters. As Joyal J. stated in the case of Public
Service Alliance of Canada et al. v. Canadian
Grain Commission and Canada (Treasury Board)
et al. (1986), 5 F.T.R. 51 (F.C.T.D.), at page 60,
paragraph 52:
[521 In this respect, I should view a court's function in its
enquiry as interpreting a Statute in a manner most consonant
with its purpose and intent and in a manner which does not do
violence to other Statutes whose purpose and intent are in the
same generic mold.
Among the meanings commonly attributed to
the word "function" we find the following diction
ary definitions:
The Random House Dictionary of the English Language,
Random House, N.Y. 1966:
function 1. the kind of action or activity proper to a person,
thing, or institution.
Shorter Oxford English Dictionary, 3rd ed., Oxford: Claren-
don Press, 1959:
Function 3. ... The special kind of activity proper to
anything; 4. ... The kind of action proper to a person as
belonging to a class, esp. to the holder of any office; hence,
the office itself, an employment, calling, trade 1533.
Webster's Third New International Dictionary (Unabridged)
G & C Merriam Company, Springfield, 1976:
function la: professional or official position:
OCCUPATION. 2. the action for which a person or thing is
specially fitted, used, or responsible or for which a thing
exists: the activity appropriate to the nature or position of a
person or thing.
Funk and Wagnalls New Standard Dictionary, 1942 edition:
function Any specific power of acting or operating that
belongs to an age. An office or work properly belonging to a
person in a particular station or character. An activity
properly belonging to a person or thing.
With regard to the meaning of the word "func-
tion" as used in subsection 29(1) of the Public
Service Employment Act which is presently being
considered by me, Cattanach J. had this to say at
page 5 of the unreported case of Coulombe v.
Canada, Federal Court, Trial Division, file
T-390-84, reasons dated the 5th of April 1984:
The word "function" in subsection 29(1) does not relate to
any particular art or science nor is it used in a technical sense.
That being so the word is to be understood as it is understood in
the common language. Thus when a word is used in its ordinary
sense it is a well known rule of courts of law that resort may be
had to dictionaries to ascertain the meaning of that word in
popular language.
Function is the act of performing and is defined as the kind
of action belonging to the holder of an office, hence the
function is the performance of the duties of that office. By the
performance of the duties of an office the holder thereof can be
said to fulfil his function. Functions are therefore the powers
and duties of an office.
Thus it seems to me that when the functions of an office are
transferred elsewhere in the course of a reorganization and the
office is abolished while the functions are continued the func
tion of the holder of the office is discontinued from which it
follows that the services of an employee who held that office
are no longer required because of the discontinuance of the
function formerly performed by him and the deputy head has
authority to lay off the employee.
Counsel for the plaintiff, on the other hand,
relies on a statement by Pratte J. in delivering
reasons for judgment on behalf of the Court of
Appeal in the case of Gonthier et al. v. Canada et
al. (1986), 77 N.R. 386. The case involved a
direction from the Treasury Board to reduce the
amounts spent by the Public Service Commission
in its Language Training Branch. As a result, the
employment of the respondents was terminated
along with approximately one-third of the 1200
employees engaged by that branch. The respon
dents argued before the Court of Appeal that there
was no lack of work, as in some cases the work
done by the respondents was done by others. They
also argued that there was no discontinuance of a
function since the Language Training Branch con
tinued to engage in the same activities both before
and after their dismissal. The part of the judgment
on which the plaintiff now relies is to be found at
paragraph 25 of the above-mentioned report,
where Pratte J. considers these two arguments [at
pages 391-392]:
I am not persuaded by this argument. I am quite prepared to
admit that the respondents were not dismissed "because of the
discontinuance of a function". However, I think it is beyond
question that their services were no longer required "because of
lack of work". At the time the Public Service Commission was
compelled to reduce by one-third the number of employees
working in the Language Training Branch, no one suggested
that these employees were not fully occupied and that there was
no work to give them. However, once the Language Training
Branch budget had been cut, the Branch was compelled to
reduce its activities; and it is because the Branch's activities
were reduced that it could then let go one-third of its
employees. Accordingly, the respondents' services were no
longer required "because of lack of work".
I do not feel that the above statement supports
the plaintiff's argument or in any way overrides
the interpretation of the word by Cattanach J. in
the Coulombe case which I have quoted above.
The facts are quite different. In the Gonthier case
no functions of any kind were abolished: members
of the Language Training Branch continued to
carry out the same functions in the field of Lan
guage Training both before and after the lay-off.
In the case before me the work done and the tasks
and duties performed by the plaintiff were no
longer allocated to any one person but, as previ
ously mentioned, were distributed among the
Word Processing Pool and Special Services Branch
and the members of the team.
To give effect to the argument of the plaintiff
regarding the meaning to be attributed to the word
function would preclude the Government from
abolishing any position and discharging the
employee unless some part of the tasks or work
performed by that employee was completely dis
continued and no longer performed by any other
person or group in the Civil Service. This would of
course greatly preclude reorganization of the
departments and branches of the service by the
redistribution of tasks and would, to a large extent,
paralyze any updating of administrative proce
dures. Such a radical interpretation of subsection
29(1) of the Public Service Employment Act is not
at all required in order to give full effect to the
scheme and spirit of legislation. The Act, of
course, does encroach on and limit the general
powers of management which are given to the
Government of Canada and its various depart
ments but the encroachment should be limited to
the extent required to give effect to its objects and
provisions.
I therefore find that, in the case at bar, the
function was discontinued in accordance with the
provisions of subsection 29(1).
Accordingly, there will be judgment dismissing
the action 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.