Emms v. The Queen et al., [1979] 2 SCR 1148

Supreme Court of Canada

Emms v. The Queen et al., [1979] 2 S.C.R. 1148

Date: 1979-10-02

John A. Emms (Plaintiff) Appellant;

and

Her Majesty The Queen, represented by the Deputy Minister of Indian Affairs and Northern Development and the Public Service Commission (Defendants) Respondents.

1979: February 26; 1979: October 2.

Present: Martland, Pigeon, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Crown—Public Service—Employee rejected during purported extension of probationary period—Regulation respecting extension of probationary period ultra vires—Rejection not legally justified—Declaratory remedy denied—Quantum of damages—Public Service Employment Act, R.S.C. 1970, c. P-32, s. 28—Public Service Employment Regulations, SOR/67-129, ss. 30, 31.

The appellant was appointed a Field Officer in the Department of Indian Affairs and Northern Development and began his employment on April 1, 1970. Under the provisions of the Public Service Employment Act, R.S.C. 1970, c. P-32, and the Public Service Employment Regulations, the probationary period applicable to the appellant was twelve months and the notice period was one month. Although the appellant’s superiors were not satisfied with his performance, no notice of an intention to reject the appellant was given during the 12-month period. Instead, on the basis of s. 30(2) of the Regulations, the deputy head purported to extend the probationary period for a further six months and the rejection of the appellant occurred during the extended period.

The trial judge found that the circumstances were such that the appellant knew or ought to have known that his probation had been extended for an additional period of six months. Notwithstanding this finding, the trial judge was of the opinion that because the respondent had not given the appellant written notice of the extension in accordance with s. 30(3) of the Regulations, the appellant was no longer a probationary employee after March 31, 1971. As a result, the Court declared that the purported rejection on probation by the respondent was a nullity and that the appellant’s employment had not been terminated.

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After his employment with the Department of Indian Affairs and Northern Development was de facto terminated, the appellant promptly obtained employment with the Government of Saskatchewan, at first on a temporary basis, later on a permanent basis. The trial judge allowed damages only for the few days during which the appellant was unemployed.

The appellant appealed to the Federal Court of Appeal against the quantum of damages awarded by the trial judge. The Crown cross-appealed on the grounds that the trial judge had erred in law in holding that at the time of his rejection the appellant was not a probationary employee. The Court of Appeal did not disagree with the trial judge’s findings, but it held that the failure to formally notify the appellant in writing of the extension of the probationary period did not invalidate the extension. It was accordingly held that he had been properly rejected within the extended probationary period. From this decision the appellant appealed to this Court.

Held: The appeal should be allowed.

Per Pigeon and Pratte JJ.: Subsequent to the judgment of the Federal Court of Appeal in this case, judgment was rendered by the Trial Division, October 25, 1977 ([1978] 1 F.C. 672), affirmed in the Federal Court of Appeal, June 14, 1978 (21 N.R. 247), in Ouimet v. The Queen. This judgment declared that s. 30(2) of the Public Service Employment Regulations is ultra vires.

At the hearing in the instant case, counsel for the respondent informed the Court that no appeal had been taken from the Ouimet judgment but invited the Court to overrule it. The Crown was thus faced with a formal declaration made by the Court below of the invalidity of the very provision of the Public Service Employment Regulations on which its appeal in this case depends. This declaration was made in another case and it is allowed to stand in favour of another claimant but the Court is asked to decide otherwise as against the appellant herein. This raised the question as to whether it should be possible for an administrative agency to allow a declaration of invalidity to stand in a given case while ignoring it towards other parties, on the chance that in another case it might succeed in having it overruled by a higher court, if not by a different judge.

However, it was unnecessary to express an opinion on this question because, assuming the respondent was entitled to ask that the judgment in Ouimet be overruled, there was no reason to do so. No argument was submitted to support the validity of s. 30(2) of the

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Regulations which had not been considered and dealt with by the trial judge and the Federal Court of Appeal and no error was shown in the decisions rendered thereupon.

As the provision in the Regulations for an extension of the probationary period, s. 30(2), was ineffective, it followed that the appellant was never properly dismissed because the notice given to him purported to be a rejection during probation. The submission made on the appeal to the Court of Appeal that even if it was so, the rejection should be considered as a dismissal effectively terminating the plaintiff’s employment could not be accepted. As held in Ouimet, at least for the purpose of the statutes that govern the Public Service an ineffective attempt to reject under s. 28 of the Public Service Employment Act is not the equivalent of a dismissal.

Another point not considered by the Federal Court of Appeal in the present case but also dealt with in Ouimet is the propriety of a declaration, not only that the termination of employment was ineffective, but also that the plaintiff continues to be an employee of Her Majesty. The circumstances in the present case did not justify the making of a declaration of continued employment and the proper remedy was in damages.

Accordingly, the appeal should be allowed, the judgment of the Federal Court of Appeal should be set aside and the judgment at trial restored but varied by deleting from the declaration therein the words “and that the plaintiff still continues to be an employee of Her Majesty”, and by increasing the damages to $6,899.40 (i.e., the difference in salary and benefits which the appellant would have received had he been allowed to continue his employment with the Department).

Per Martland, Beetz and Estey JJ.: The extension of the probationary period by the deputy head was based upon s. 30(2) of the Regulations. If the deputy head did not have power to extend the probationary period, then the rejection of the appellant occurred after his probationary period had expired and could not legally be justified. As held by the Federal Court of Appeal in the case of Ouimet v. The Queen, supra, s. 30(2) of the Regulations was ultra vires of the Commission to enact. It followed, therefore, that the appeal should be allowed.

APPEAL from a judgment of the Federal Court of Appeal[1], reversing the judgment of the Trial

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Division which had granted the appellant declaratory relief and damages. Appeal allowed and judgment at trial restored but varied.

Maurice W. Wright, Q.C., and James L. Shields, for the plaintiff, appellant.

J.A. Scollin, Q.C., and Pierre Barnard, for the defendants, respondents.

The judgment of Martland, Beetz and Estey JJ. was delivered by

MARTLAND J.—The facts which gave rise to this case have been fully stated in the reasons of my brother Pigeon who has also cited the relevant statutory provisions, namely, subss. (1) to (4) inclusive of s. 28 of the Public Service Employment Act, R.S.C. 1970, c. P-32, and ss. 30 and 31 of the Public Service Employment Regulations enacted by the Public Service Commission pursuant to that Act.

Briefly stated, s. 28 of the statute provides for the position of employees on probation. The period of probation is to be established by the Commission. The deputy head may reduce or waive the probationary period if an appointment is made from within the Public Service. The deputy head may at any time during the probationary period, upon giving required notices to the employee and the Commission of his intention to reject the employee, set in motion the procedure which results in his ceasing to be an employee.

The Regulations establish the probationary periods for defined groups or classes of employees. The probationary period applicable to the appellant was twelve months. No notice of an intention to reject the appellant was given during that period. Instead, the deputy head purported to extend the probationary period for a further six months and the rejection of the appellant occurred during the extended period.

The extension of the probationary period by the deputy head was based upon subs. 30(2) of the

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Regulations. Subsections (1) and (2) of s. 30 of the Regulations provide as follows:

30. (1) The probationary period referred to in subsection (1) of section 28 of the Act for an employee who comes within a class or group mentioned in Column 1 of Schedule A is the period set out opposite that class or group in Column II of the said Schedule.

(2) The deputy head may extend the probationary period of an employee but the period of extension shall not exceed the period for that employee determined pursuant to subsection (1).

If the deputy head did not have power to extend the probationary period, then the rejection of the appellant occurred after his probationary period had expired and could not legally be justified. The respondent’s case, therefore, depends upon the validity of subs. 30(2) of the Regulations.

Subsequent to the judgment of the Federal Court of Appeal in the present case, that Court, in the case of Ouimet v. The Queen[2], confirmed the judgment in the Trial Division that subs. 30(2) of the Regulations was ultra vires of the Commission to enact. I agree with the reasons delivered by Jackett C.J., for the Court, for reaching that conclusion.

I am therefore of the opinion that this appeal should succeed. I agree with the disposition of the appeal proposed by my brother Pigeon.

The judgment of Pigeon and Pratte JJ. was delivered by

PIGEON J.—This is an appeal by leave of this Court from the judgment of the Federal Court of Appeal dated July 15, 1977 (17 N.R. 14; [1978] 2 F.C. 174) reversing the judgment of the Trial Division ([1977] 1 F.C. 101) which had granted declaratory relief and damages in the amount of $219.76.

Emms was appointed a Field Officer in the Department of Indian Affairs and Northern Development. He began his employment on April 1, 1970. He was stationed at Stony Rapids, Saskatchewan. His immediate superior was one C.E.

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McKee, District Supervisor at Prince Albert. On February 26, 1971, the latter wrote asking Emms to attend at the Prince Albert office for reviewing his Employee Evaluation Report that was required to be submitted before the end of the probationary period. In this Report there was this recommendation:

—Recommend that Mr. Emms be placed on a further six months probation to attempt to resolve his communication problem. It is also recommended that Mr. Emms be considered for transfer to another area and given opportunity to work in the development field.

The trial judge referred in his reasons to the meeting that Emms had with McKee and F.A. Clark, Regional Director, in Regina, on March 26, 1971, to discuss the Report, and said (at p. 106):

… The plaintiff testified that he left the meeting under the impression that the difficulties were resolved. The manner in which those difficulties were resolved was not disclosed with certainty or exactitude but the impression sought to be conveyed by the plaintiff in his testimony was to the effect that the extended probationary period of 6 months within which he was to satisfy his superiors of his ability to satisfactorily discharge his duties was waived. I have grave doubt if that impression was justified.

By letter dated July 8, 1971, (Exhibit P-4), which is beyond the initial probationary period but within the further six-month period, C.E. McKee again referred to the manner in which the plaintiff performed his duties and as were discussed at the meeting between them on March 26, 1971, and concluded by stating:

In the circumstance, I intend to recommend to the Regional Director your rejection on probation; however, before doing so, I invite your explanation for difficulties which have developed and your inability to perform satisfactorily.

The plaintiff replied by letter dated July 19, 1971, (Exhibit P-5), and explained the difficulties which he had encountered. He concluded his reply by requesting to be advised of the steps to be taken to review, through the staff union, his federal government service that is covered by pension. The tenor of that letter, after pointing out that he had exceptional ability to communicate with Indian people, is a tacit acceptance of his inevitable dismissal and in this letter the plaintiff does not dispute

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the statement in Mr. McKee’s letter of July 8, that he was “on probation” at that time.

…

Because of the view I have reached it is not necessary for me to come to a conclusion that the plaintiff was advised orally that his probation had been extended for a period of six months from March 31, 1971, until September 30, 1971, but if it were incumbent upon me to do so I would find that the plaintiff knew or ought to have known by the oral communications to him and written statements that was the fact.

I would also quote this passage from pp. 108-9:

There does not seem to me to have been any doubt that the plaintiffs superiors were not satisfied with the plaintiffs performance of his duties during his initial 12-month probationary period and that his rejection on probation was seriously considered during that period. Naturally the plaintiff both disputed and sought to explain the reservations entertained by his superiors as to his capacity and competence. It is equally clear that the solution to the difficulties encountered was to extend the plaintiff’s probationary period for a further six months.

The recommendation to that effect was contained in the Evaluation Report concerning the plaintiff dated March 25, 1971. That report was signed by the plaintiff on March 26, 1971, and was the subject matter of discussion between the plaintiff and his superiors. The plaintiff’s version of that discussion appears to have been that the difficulties were resolved, but unfortunately they were not, and there does not appear to have been a sound foundation for the plaintiff’s assumption to the contrary. There is no doubt in my mind that the plaintiff knew full well on March 26, 1971, it was intended that his probationary period was to be extended for an additional period of six months. However, there is equally no doubt in my mind that the plaintiff was not so advised in writing forthwith by the deputy head or a responsible officer of the Department to whom that authority was delegated by the deputy head that his probationary period had been extended by six months.

Emms was never formally informed in writing of the action taken on this recommendation, which action was within the jurisdiction of F.A. Clark, the Regional Director, who held delegated authority from the Deputy Minister.

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What happened subsequently is thus stated by Ryan J.A. (at pp. 20-21):

An Employee Evaluation Report, the purpose of which was indicated as being a probation review, was prepared under date of August 18, 1971, and signed on August 19, 1971. Under the heading “Recommendations” was the entry: “Rejected on probation effective September 24, 1971.” Mr. Emms signed the Report, but indicated in writing, on the Report, that he contested the decision “… on the grounds stated.”

By letter dated August 18, 1971, Mr. McKee informed Mr. Emms that he was rejected for further service in the Department of Indian Affairs and Northern Development effective September 24, 1971.

Mr. Emms then submitted a grievance in which he protested “… the Employee Evaluation Report dated August 19, 1971 as an unfair, incomplete and basically untrue document.” He stated:

I request an impartial investigation of the matter with a view to having the situation corrected and the true reasons for my dismissal stated. I also request a review of my previous valid pension service time with Indian Affairs and an explanation of how so many supervisors granted salary increments and promotions if the above mentioned report is true. I do not contest the dismissal. I do contest the evaluation.

His reference to previous pension service and promotions appears to relate to a period he had served in the Public Service some time before his appointment in April 1970.

His grievance did not succeed.

Shortly after his rejection, which was effective September 24, 1971, Mr. Emms obtained employment with a department of the Saskatchewan government until November 15, 1971. He obtained employment with another Saskatchewan government department on a temporary basis from November 15, 1971 to January 31, 1973. He secured further employment in the Saskatchewan government service in February 1973, first as a temporary, and then as a permanent employee.

As previously stated Emms was successful at trial. Notwithstanding the above-quoted finding that he knew or ought to have known that his probation had been extended until November 30, 1971, the trial judge said (at pp. 109-110):

… What is contemplated by the Regulations is a clear and unequivocal notice in writing specifically directed to

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the plaintiff stating that his probationary period has been extended for the appropriate time also to be stated. It is obligatory on the deputy head or his designated representative to do this and if that officer is not aware of his responsibility in this respect it is incumbent upon him to find out before embarking upon an action which may have detrimental consequences to the employee.

This was not done. Accordingly, in my opinion, the purported extension of the plaintiff’s probationary period was a nullity.

Then having held that the defence predicated upon laches must fail, he granted declarations in the following terms (at p. 115):

(1) that Her Majesty has no authority to terminate the employment of the plaintiff under the authority of section 28(3) of the Public Service Employment Act; and

(2) that the termination of the plaintiff’s employment by Her Majesty is null and void and of no effect whatsoever and that the plaintiff still continues to be an employee of Her Majesty.

Concerning damages, the conclusion was (at p. 116):

Immediately upon his abortive dismissal on September 24, 1971, the plaintiff forthwith sought and obtained employment under contract with the Department of Co-operation and Co-operative Development of the Government of Saskatchwewan. Exhibit P-12 indicates that he began that engagement on October 1, 1971, that is a period of seven days before he accepted other employment (for which the plaintiff is to be commended), but by the acceptance of which he precluded himself from performing the duties of the office from which he was not effectively dismissed. I note that in Exhibit P-13 that the plaintiff computed his salary to be $35.68 on a daily basis, which for 7 days totals $219.76. (sic)

The Court of Appeal did not disagree with the trial judge’s findings, but it held that the failure to formally notify Emms in writing of the extension of the probationary period did not invalidate the extension. It was accordingly held that he had been properly rejected within the extended probationary period.

The relevant part of s. 28 of the Public Service Employment Act, R.S.C. 1970, c. P-32, is as follows:

28. (1) An employee shall be considered to be on probation from the date of his appointment until the end

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of such period as the Commission may establish for any employee or class of employees.

(2) Where an appointment is made from within the Public Service, the deputy head may, if he considers it appropriate in any case, reduce or waive the probationary period.

(3) The deputy head may, at any time during the probationary period, give notice to the employee and to the Commission that he intends to reject the employee for cause at the end of such notice period as the Commission may establish for any employee or class of employees and, unless the Commission appoints the employee to another position in the Public Service before the end of the notice period applicable in the case of the employee, he ceases to be an employee at the end of that period.

(4) Where a deputy head gives notice that he intends to reject an employee for cause pursuant to subsection (3) he shall furnish to the Commission his reasons therefor.

Sections 30 and 31 of the Public Service Employment Regulations provide:

30. (1) The probationary period referred to in subsection (1) of section 28 of the Act for an employee who comes within a class or group mentioned in Column I of Schedule A is the period set out opposite that class or group in Column II of the said Schedule.

(2) The deputy head may extend the probationary period of an employee but the period of extension shall not exceed the period for that employee determined pursuant to subsection (1).

(3) Where the probationary period of an employee is extended, the deputy head shall forthwith advise the employee and the Commission thereof in writing.

31. The notice period referred to in subsection (3) of section 28 of the Act applicable in the case of an employee who comes within a class or group mentioned in Column I of Schedule A is the period set out opposite that class or group in Column III of the Schedule, calculated from the day on which the deputy head gives the notice to the employee.

It is common ground that Emms came within group 3 in Column I of Schedule A and accordingly the probationary period specified in Column II was twelve months and the notice period in Column III was one month.

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Subsequent to the judgment of the Federal Court of Appeal in this case, judgment was rendered by the Trial Division October 25, 1977, affirmed in the Federal Court of Appeal June 14, 1978 in Ouimet v. The Queen[3]. The operative part of this judgment reads (at p. 250):

IT IS DECLARED THAT:

(a) Section 30(2) of the Public Service Employment Regulations is ultra vires;…

At the hearing in the instant case, counsel for the respondent informed the Court that no appeal had been taken from the Ouimet judgment but invited us to overrule it. When asked why leave to appeal had not been sought, he could only say that he did not know but he did not apply for leave or for an extension of time in which to apply.

I must confess being troubled by this situation. The Crown is faced with a formal declaration made by the Court below of the invalidity of the very provision of the Public Service Employment Regulations on which its appeal in this case depends. This declaration was made in another case and it is allowed to stand in favour of another claimant but the Court is asked to decide otherwise as against the appellant herein.

In Corporation du Village de Deschênes v. Loveys[4] the headnote reads:

A judgment rendered upon an action brought by a ratepayer of a municipality in which it was alleged that a resolution adopted by a municipal council was illegal, constitutes res judicata as to all other ratepayers of that municipality; and such judgment can be invoked as such in a subsequent action where the legality of the same resolution is challenged. Municipal corporations represent before the courts all the ratepayers, and a judgment rendered in favour of the corporation or against it in an action brought by a ratepayer can be opposed to any other ratepayer. Stevenson v. La cité de Montréal (Q.R. 6 Q.B. 107; 27 Can. S.C.R. 593) app.

Similarly in Dilworth et al. v. Town of Bala et al.[5], Rand J. speaking for a majority said (at p. 289):

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… A direct determination in rem, by means furnished by the statute, of illegality, such as the setting aside of a by-law, will bind all ratepayers. It is so far similar in this action: the appellants are acting on behalf of all the ratepayers; and a decision that the action challenged is intra vires would bind all as between themselves and the corporation as well as between the corporation and the third parties in the proceeding.

The declaration issued by the Federal Court in Ouimet was obtained by virtue of s. 18 of the Federal Court Act which provides:

18. The Trial Division has exclusive original jurisdiction

(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

The Public Service Commission clearly is a “federal board, commission or other tribunal” within the definition in the Federal Court Act and it was properly represented by the Attorney General of Canada in the Ouimet case. I would point out that the Public Service Employment Act does not make it a body corporate and I do not see what difference it can make that, in Ouimet, it is not mentioned in the style of cause as in this case.

It would appear to be immaterial that the judgment in Ouimet was rendered after the institution of the proceedings in this case. In Maynard v. Maynard[6], Cartwright J. (as he then was) quoted from Law v. Hansen[7], at p. 76, this sentence:

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No substantial objection therefore can be said to lie against the bringing forward of a defence based upon a judgment recovered after action brought.

After this, he went on to say:

In that case the judgment held to create an estoppel in the Courts of Nova Scotia was that of a foreign tribunal. It seems to me that the decision would apply a fortiori where the second proceeding is started in the very Court in which the issue is already standing for judgment.

I know of no case in which the doctrine of res judicata has yet been applied to a judicial determination of the validity of an administrative regulation. But the principles governing res judicata are not statutory, they are “judge-made law” like the rule of evidence dealt with in Ares v. Venner[8] and are to be developed by the courts in accordance with the needs of the time.

The judgment at trial in Ouimet indicates how serious it would be to treat a declaration of invalidity as binding only towards the plaintiff in the case in which it was issued. The trial judge makes reference to the grievance that the plaintiff had filed pursuant to the Public Service Staff Relations Act against his dismissal within his extended probationary period. This grievance was heard by Edward B. Jolliffe, Q.C., Deputy Chairman of the Public Service Staff Relations Board, who found that Ouimet’s dismissal was rejection for cause during the probationary period, from which it followed that he was without jurisdiction. Concerning this decision, the trial judge further says (at p. 676):

Before Mr. Jolliffe it has been contended that section 30(2) of the Public Service Employment Regulations, SOR/67-129, was ultra vires and accordingly the deputy head has no power to extend a probationary period.

Mr. Jolliffe quite properly declined to consider the validity of section 30(2) of the Regulations which had been raised before him and he proceeded on the assumption that section 30(2) was intra vires and has the force of law.

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There is overwhelming authority for Mr. Jolliffe proceeding as he did.

Whether regulations are ultra vires is for the courts to determine and not the tribunal. This proposition is so self-evident and so generally accepted that it rarely finds expression. Mr. Jolliffe was well aware of this proposition and gave expression to it in his decision as did G.M. Blackstock, K.C., Chairman of the Board of Public Utility Commissioners, when he said in In re Royalite Oil Company Limited and Tannas [1943] 2 W.W.R. 348 at page 352:

… the Board has no jurisdiction to make any finding as to the propriety or the legality of the regulations. The Board has merely had delegated to it certain duties to perform under an order-in-council. Whether the order-in-council is good or bad is no concern of the Board; it must take it as it finds it. The Court alone has the right to adjudicate on such matters and if the applicant questions either the validity or legality of the order-in-council it must do so in the proper forum.

In Regina v. Unemployment Insurance Commission, Ex parte Heggen (1964) 41 D.L.R. (2d) 436 Aikins J. said at page 442 that if the question: “Is Regulation 195(3) ultra vires?” were put to the Unemployment Insurance Commission “The Commission obviously lacks jurisdiction to deal with such question if put directly.”

Thus it will be seen that if a formal declaration of invalidity of an administrative regulation is not considered effective towards all those who are subject thereto, it may mean that all other persons concerned with the application of the regulation, including subordinate administrative agencies, have to keep on giving effect to what has been declared a nullity. It is obviously for the purpose of avoiding this undesirable consequence that, in municipal law, the quashing of a by-law is held to be effective “in rem”.

Should it be possible for an administrative agency to allow a declaration of invalidity to stand in a given case while ignoring it towards other parties, on the chance that in another case it might succeed in having it overruled by a higher court, if not by a different judge? Should the situation be viewed in the same way as in the case of declarations of invalidity of statutes which seem to have always been considered only as precedents?

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After anxious consideration, I find it unnecessary to express an opinion on this difficult question because, assuming the respondent is entitled to ask that the judgment in Ouimet be overruled, I find no reason to do so. No argument was submitted to support the validity of s. 30(2) of the Public Service Employment Regulations which had not been considered and dealt with by the trial judge and the Federal Court of Appeal and no error was shown in the decisions rendered thereupon.

Having come to the conclusion that the provision of the Public Service Employment Regulations for an extension of the probationary period, s. 30(2), is to be considered ineffective, it follows that Emms was never properly dismissed because the notice given to him purported to be a rejection during probation. On the appeal it was submitted that even if it was so, the rejection should be considered as a dismissal effectively terminating plaintiff’s employment. The Federal Court of Appeal did not consider this point, due to the conclusion that Emms had been properly rejected. It was however dealt with in Ouimet and in my view correctly disposed of, Jackett C.J. saying (at pp. 251-2):

While it was not really relied on during argument, I deem it advisable to refer to an alternative position taken in the appellant’s memorandum, which would seem to be that the purported rejection action should be treated as a dismissal and is based to some extent on the prerogative right of the Crown to dismiss a servant at pleasure. (Compare Zamulinski v. The Queen, [1956-60] Ex. C.R. 175.) A prerogative right of the Crown is, of course, subject to statute and the relevant provision here is section 24 of the Public Service Employment Act, which reads:

24. The tenure of office of an employee is during the pleasure of Her Majesty, subject to this and any other Act and the regulations thereunder and, unless some other period of employment is specified, for an indeterminate period.

Under this provision, tenure at pleasure is “subject to this (the Public Service Employment Act) and any other Act and the regulations thereunder”. Various methods are provided by statute for termination of a public servant’s employment. (Compare Wright v. Public Service Staff Relations Board, [1973] F.C. 765, at pages 775 et seq.)

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In my view, the alternative position, which was not really relied on, cannot be accepted. At least for the purpose of the statutes that govern the Public Service, an ineffective attempt to reject under section 28 is not the equivalent of a dismissal. (Compare Bell Canada v. Office and Professional Employees’ International Union, [1974] S.C.R. 335 at page 340, and Jacmain v. Attorney General of Canada (S.C. of C.) (1977), 18 N.R. 361). Rejection is a part of a probationary system designed to choose permanent employees from those who are employed on a trial basis, and any “cause” based on a view as to the probability of the person developing into an effective member of the “team” would be an acceptable basis for it. Dismissal is quite a different action. It is ordinarily the action whereby a permanent employee’s employment status is terminated otherwise than on retirement; and what would be sufficient “cause” for dismissal would be the result of the application of principles quite different from those applicable in connection with rejection.

Another point which was similarly not considered by the Federal Court of Appeal in the present case but also dealt with in Ouimet is the propriety of a declaration, not only that the termination of employment was ineffective, but also that the plaintiff continues to be an employee of Her Majesty. That part of the declaration was struck out in Ouimet, Jackett C.J. saying (at pp. 252-3):

I have difficulty, however, with upholding the latter part of paragraph (c) of the declaration in the judgment appealed against, whereby it is declared that the respondent “still retains his status as an employee as if his employment had not been terminated”. As I see it, there is nothing either in the pleadings or the facts agreed upon on which to base this declaration. It is one thing to declare that the rejection action in 1976 was not effective to terminate the employment. It does not follow that nothing has happened since to terminate it. There is an infinite variety of possibilities as to what has happened in the interim; and each possible set of facts might raise different questions as to whether the respondent still retains his status in the Penitentiary Service and as to whether he has any right to salary or damages in respect of the interim period. There is simply no basis in the pleadings or in the facts established for a declaration with regard thereto. In my view, the judgment of this Court should be that the words “and that the Plaintiff still retains his status as an employee as if his employment had not been terminated” should be deleted from

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paragraph (c) of the judgment of the Trial Division and that, subject thereto, the appeal should be dismissed with costs.

The situation in the present case is not identical with that in Ouimet. There were allegations and there was evidence given of what occurred after Emms’ employment by the Department of Indian Affairs and Northern Development was de facto terminated. He promptly obtained employment with the Government of Saskatchewan, at first on a temporary basis, later on a permanent basis. The trial judge allowed damages only for the few days during which Emms was unemployed, saying (at p. 116):

The relief sought in paragraph (c) (damages) is mutually inconsistent with the relief sought in paragraphs (a) and (b) which I have granted. Since I have found that the plaintiff’s employment was not terminated, it follows that the plaintiff is entitled to continue in his employment and to receive his salary therefor. But to be entitled to receive his salary the plaintiff must perform the duties of his office or indicate his willingness to do so.

As against this, counsel for the Crown referred us to the judgment of the Privy Council in Francis v. Municipal Councillors of Kuala Lumpur[9] where Lord Morris said (at p. 637):

Accepting, however, the decision of the Court of Appeal, which, as has been pointed out, has not been the subject of any cross-appeal, the position on Oct. 1 was that the removal of the appellant was a removal by the council and not by the president. The council were his employers, but having regard to the provisions of the ordinance their termination of his service constituted wrongful dismissal. Their Lordships consider that it is beyond doubt that on Oct. 1, 1957, there was de facto a dismissal of the appellant by his employers, the respondents. On that date, he was excluded from the council’s premises. Since then he has not done any work for the council. In all these circumstances, it seems to their Lordships that the appellant must be treated as having been wrongly dismissed on Oct. 1, 1957 and that his remedy lies in a claim for damages. It would be wholly unreal to accede to the contention that since Oct. 1, 1957, he had continued to be and that he still continues to be in the employment of the respondents.

…

In their Lordship’s view, when there has been a purported termination of a contract of service a declara-

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tion to the effect that the contract of service still subsists will rarely be made. This is a consequence of the general principle of law that the courts will not grant specific performance of contracts of service. Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the court. In their Lordships’ view there are no circumstances in the present case which would make it either just or proper to make such a declaration.

In my view, the circumstances in the present case do not justify the making of a declaration of continued employment. It would imply that Emms is entitled to his salary for the whole period since the date of his de facto termination of employment, although he made himself unavailable by taking other employment which became of a permanent character. Also it seems this would mean that Emms would be entitled to receive back pay irrespective of what he has received from other employment. This last consequence might be avoided by amending the declaration. However, bearing in mind that the making of such a declaration is an equitable remedy seldom allowed, it appears to me that the circumstances are not such as to justify it here and the proper remedy is in damages.

At the hearing in this Court, counsel for Emms referred to an admission by the parties at trial that the difference in salary and benefits that Emms would have received had he been allowed to continue his employment with the Department amounted to $6,899.40. This sum was claimed as damages which this Court was requested to assess. No objection to this request having been made, it appears proper to render judgment accordingly.

On the whole, I am of the opinion that the appeal should be allowed, the judgment of the Federal Court of Appeal should be set aside and the judgment at trial restored but varied by deleting from the declaration therein the words “and that the plaintiff still continues to be an employee of Her Majesty”, and by increasing to $6,899.40 the sum which the plaintiff shall recover. The appellant is entitled to costs throughout.

Appeal allowed and judgment at trial restored but varied, with costs.

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Solicitors for the plaintiff, appellant: Soloway, Wright, Houston, Greenberg, O’Grady & Morin, Ottawa.

Solicitor for the defendants, respondents: Roger Tassé, Ottawa.