Filion v. City of Montreal et al., [1970] SCR 211

Supreme Court of Canada

City of, Filion v. Montreal, [1970] S.C.R. 211

Date: 1969-10-21

Ovide Filion (Plaintiff), Appellant;

and

The City of Montreal (Defendant), Respondent;

and

Lucien L’Allier (Defendant), Respondent.

1969: May 22, 23; 1969: October 21.

Present: Fauteux, Abbott, Judson, Hall and Pigeon JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Labour—Lease and hire of personal service—Permanent employee—Refusal to accept transfer to other division in same department—Subsequent dismissal—Action for wrongful dismissal.

In 1956, the plaintiff, an engineer by profession, was given a permanent appointment as assistant-engineer-superintendent of the electricity division of the public works department of the city of Montreal. In 1958, he was named acting superintendent of the division when the superintendent resigned following public charges of grave irregularities in the administration of the division. The defendant L’Allier, as Director of the department, set up a committee of enquiry. The report of the committee disclosed that serious irregularities had occurred. While the plaintiff was not directly criticized, the report indicated a serious lack of administrative capacity on his part. The defendant decided to transfer him to another division in the same department. The transfer did not involve a change in the plaintiff’s job classification and no diminution in salary or pension entitlement. The plaintiff refused to accept the transfer and he was subsequently dismissed. His action claiming damages for wrongful dismissal was maintained at trial, but that judgment was reversed by the Court of Appeal. The plaintiff appealed to this Court.

Held: The appeal should be dismissed.

The plaintiff was not justified in refusing to accept the transfer. By-law No. 684 of the City provides that the public works department shall be administered by the Director of public works who shall determine the respective functions and duties of the officials under his control. In the exercise of that administrative responsibility, the defendant was

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intitled to decide as he did that the plaintiff should be transfered to another division. It follows that when the plaintiff refused to accept the Director’s decision, the City was justified in dispensing with his services.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], reversing a judgment of St-Germain J. Appeal dismissed.

Claude Benoît, for the plaintiff, appellant.

Thérèse Cromp and Armand Pagé, Q.C., for the defendant City of Montreal.

Dollard Dansereau, Q.C., for the defendant L’Allier.

The judgment of the Court was delivered by

ABBOTT J.—On April 7, 1937, the appellant, an engineer by profession, was engaged on a temporary basis by the City of Montreal as an electrical engineer and three months later his engagement was confirmed on a permanent basis.

On June 1, 1956, he was given a permanent appointment as assistant‑engineer‑superintendent, of the electricity division of the City’s Public Works Department. In May 1958, he was named as acting superintendent of the said division, following the resignation of the superintendent, one Rousseau. That resignation followed public charges of grave irregularities in the administration of the division, as a result of which the repondent L’Allier, as Director of the Public Works Department, had set up a committee of enquiry.

On January 30, 1959, the committee of enquiry filed its report with the Executive Committee of the City. The report disclosed that serious irregularities had occurred in the administration of the electricity division. While Filion was not directly criticized in the report, as Tremblay C.J. has pointed out in his reasons, the report did indicate a serious lack of administrative capacity on his part, whatever his abilities as an electrical engineer may have been.

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After considering the report of the committee of enquiry, L’Allier, as Director of the Public Works Department, decided that Filion’s usefulness in the electricity division was at an end. After some hesitation, L’Allier decided to transfer him to another division in the same Department—the buildings division. The transfer did not involve a change in Filion’s job classification as assistant-engineer-superintendent and no diminution in salary or pension entitlement.

What happened after that is summarized by Tremblay C.J., in his reasons as follows:

[TRANSLATION] L’Allier assigned Filion to the buildings division. After first accepting, Filion, dissatisfied with the working conditions, changed his mind and, in the letter of March 25, 1959, quoted by Casey J., his lawyers, in his name, claimed that their client had the right to remain assistant-engineer-superintendent in the electricity division and threatened the city with legal proceedings “unless Mr. Filion is reassigned to his original position”.

On April 15, 1959, following receipt of the letter of March 25, referred to by the Chief Justice, L’Allier recommended to the Executive Committee that Filion be struck from the list of employees of the city as of March 25, 1959. A resolution to that effect was adopted by the Executive Committee on April 22, 1959.

On July 22, 1959, appellant took the present action claiming $183,957.80 as damages for wrongful dismissal. The action was maintained in the Superior Court to the extent of $129,‑214.70, but that judgment was unanimously reversed by the Court of the Queen’s Bench.

In the circumstances of this case, I do not find it necessary to discuss the nature of Filion’s tenure of employment. The essential issue on this appeal is whether he was justified in refusing to accept the transfer to another division within the same Department, made by L’Allier in his capacity as Director of the Department. In my opinion he was not justified.

By-law No. 684 of the by-laws of the City of Montreal provides that (1) the Public Works

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Department shall be administered by an official designated as the “Director of Public Works” and (2) the Director “shall determine the respective functions and duties of the officials under his control”.

In the exercise of that administrative responsibility, and for the reasons which I have indicated, L’Allier was entitled to decide as he did that the appellant should be transferred to another division. To hold otherwise would be to impose a rigidity upon the administration of the Department which would be both unjustified and unworkable. It follows that, when the appellant refused to accept the Director’s decision, the City was justified in dispensing with his services.

For the foregoing reasons and for those of Tremblay C.J., with which I am in substantial agreement, I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the plaintiff, appellant: Gélinas, Bourque, Lalonde & Benoît, Montreal.

Solicitors for the defendant, City of Montreal: Pagé, Mercier & Beauregard, Montreal.

Solicitor for the defendant, L’Allier: D. Dan-sereau, Montreal.