T-1031-90
David Basu (Plaintiff)
v.
Her Majesty the Queen (Defendant)
INDEXED AS.' BASU V. CANADA (T.D.)
Trial Division, Rouleau J.—Ottawa, November 29
and December 9, 1991.
Judicial review — Equitable remedies — Declarations —
Action for declaration superior obligated to accept resignation
pursuant to Public Service Employment Act, s. 26 — Plaintiff,
public servant suspended without pay and charged with fraud
— Department refusing to accept resignation — Alleging obli
gation to accept resignation thus entitling him to benefits
including severance pay which was withheld as discharged for
cause — Convicted of fraud — Action dismissed — Public
interest considered in exercising discretion to grant declara-
tory relief — Maxim no one should benefit from own wrongdo
ing applied — Plaintiff attempting to profit from illegal acts —
Granting relief sought encouraging illegality, contrary to pub
lic policy.
Public Service — Termination of employment — Action for
declaration superior obligated to accept resignation of public
servant under suspension pending enquiry into alleged miscon
duct — Had resignation been accepted employee entitled to
severance pay subsequently withheld when discharged for
cause — Plaintiff convicted of fraud — Discretionary relief
sought denied on ground of public policy.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Public Service Employment Act, R.S.C., 1985, c. P-33, s.
26.
Public Service Terms and Conditions of Employment Reg
ulations, SOR/67-118, s. 106.
CASES JUDICIALLY CONSIDERED
APPLIED:
Cowan v. C.B.C., [1966] 2 O.R. 309; (1966), 56 D.L.R.
(2d) 578 (C.A.); Cleaver v. Mutual Reserve Fund Life
Association, [1892] 1 Q.B. 147 (C.A.); Hall v. Hebert
(1991), 46 C.P.C. (2d) 192 (B.C.C.A.).
COUNSEL:
Catherine H. MacLean for plaintiff.
Dr. Geoffrey Lester for defendant.
SOLICITORS:
Nelligan/Power, Ottawa, for plaintiff.
Deputy Attorney General of Canada for defen
dant.
The following are the reasons for judgment ren
dered in English by
ROULEAU J.: The plaintiff, a member of the Public
Service of Canada since January 8, 1973, was sus
pended without pay from his position on August 11,
1989, while the Department conducted an enquiry
into alleged misconduct.
In September, the plaintiff telephoned his superior
and advised that due to the stress of the investigation
he wanted to resign his position. A few days later, he
was charged with fraud, theft, and breach of trust in
relation to sums of approximately $94,000. By letter
dated October 4, 1990, he resigned his position effec
tive October 10, 1990. By return mail, the Depart
ment advised him that it refused to accept his resigna
tion "as a result of disciplinary matters before the
department". On October 10, 1990, Mr. Basu resub
mitted his resignation effective immediately on
grounds of ill health. This was supported by a letter
from his physician.
The investigation continued throughout the fall and
eventually the plaintiff was discharged for cause,
effective December 22, 1989 in accordance with sec
tion 106 of the Public Service Terms and Conditions
of Employment Regulations [SOR/67-118]. On April
29, 1991 he pleaded guilty in the Ontario Provincial
Court to one charge of fraud over $1,000. He was
fined, ordered to make restitution and placed on pro
bation for 3 years.
A grievance with respect to the refusal was dis
missed by the Public Service Staff Relations Board in
March of 1990 but the issue as to acceptance or
refusal of a resignation was determined to be beyond
the scope of their authority.
The plaintiff, by this action, is seeking relief by
way of declaration that his superior was obligated to
accept his resignation and that failure to do so was in
breach of section 26 of the Public Service Employ
ment Act [R.S.C., 1985, c. P-33], which reads as fol
lows:
26. An employee may resign from the Public Service by giv
ing to the deputy head notice in writing of the intention to
resign and the employee ceases to be an employee on the day
as of which the deputy head accepts in writing the resignation.
The plaintiff alleges that his superior, the deputy
head, was under an obligation to accept his resigna
tion and, had he done so, he would have been entitled
to a'number of benefits including severance pay of
$10,333.20. This amount was withheld because he
was subsequently discharged for cause.
Counsel for the plaintiff submits that the deputy
head had no authority to refuse the resignation, that it
was effective when tendered and he was conse
quently entitled to receive the severance pay.
Both parties submitted very profound and reasoned
arguments on the right to resign at common law, the
distinction between public and private sector employ
ment and an approach to the interpretation and con
struction of section 26 of the Public Service Employ
ment Act.
Given the nature of the relief sought, I find it
unnecessary to rule on the merits of these submis
sions. Declaratory relief is discretionary. Schroeder
J.A., of the Ontario Court of Appeal wrote in Cowan
v. C.B.C., [1966] 2 O.R. 309, at page 314:
The jurisdiction is discretionary, and where specific relief other
than a declaration is not claimed the jurisdiction has been said
to be one exercised with great caution: Russian Commercial &
Industrial Bank v. British Bank of Foreign Trade, Ltd., [1921]
2 A.C. 438 at p. 445, where Viscount Finlay stated: "It should
be exercised sparingly 'with great care and jealousy' 'with
extreme caution'."
It is obvious to me that the Court in exercising its
discretion must have regard and must take into
account a number of factors not the least of which is
the public interest. Public policy dictates that I bar
the plaintiff's claim. The maxim that "no one should
take benefit from his own wrong" has been adopted
and followed for centuries. This principle was enun
ciated quite succinctly in Cleaver v. Mutual Reserve
Fund Life Association, [1892] 1 Q.B. 147 (C.A.), at
page 156, where Fry L.J., said:
It appears to me that no system of jurisprudence can with rea
son include amongst the rights which it enforces rights directly
resulting to the person asserting them from the crime of that
person ....This principle of public policy., like all such princi
ples, must be applied to all cases to which it can be applied
without reference, to the particular character of the right
asserted or the form of its assertion.
More recently, the British Columbia Court of
Appeal in Hall v. Hebert (1991), 46 C.P.C. (2d) 192
invoked the maxim and went on to elaborate that it
would be manifestly unacceptable to fair minded or
right thinking persons that a court would assist a
plaintiff who has defied the law.
The case at bar is not one of a party seeking com
pensation for an injury incurred by him while engag
ing in illegal acts. On the contrary, this is a situation
where he is actually trying to profit from his illegal
ity. I can find no reason whatsoever that would jus
tify a favourable exercise of my discretion and award
the relief sought. To accede to such a request would
be to encourage illegality, would serve a detrimental
purpose and would ultimately be contrary to public
policy.
This action is dismissed. Costs to the defendant.
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