Date: 19981103
Docket: T-3236-90
BETWEEN:
IAN V. MACDONALD
Plaintiff
AND:
HER MAJESTY THE QUEEN AND THE
PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE
Defendants
REASONS FOR JUDGMENT
GIBSON J.
INTRODUCTION
[1] By Statement of Claim first filed the 7th of December, 1990 and twice thereafter amended with leave of the Court, the plaintiff seeks the following relief:
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A. A declaration that the allegation of having abandoned his position [in the Public Service of Canada] was wrongful, illegal, null and void and ultra-vires to the Public Service Employment Act1; |
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B. Damages from the Defendant [presumably, her Majesty the Queen] for wrongfully causing the termination of the Plaintiff"s employment without reasonable grounds or any grounds, without notice and without a fair hearing; |
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| E. Pre-trial interest; and |
| F. Such further and other relief as this Honourable Court may deem just. |
[1] The Professional Institute of the Public Service ("PIPS") which represents a range of groups of public servants in their employment relationship with the Government of Canada was added as a defendant by the first Amended Statement of Claim. There is no evidence on the Court file that PIPS was ever served with any version of the Statement of Claim. It filed no defence and did not appear at trial. In the circumstances, counsel for the plaintiff quite properly acknowledged before the Court that PIPS is a defendant in name only. No relief is sought against it. In the result, in these reasons, references to "the defendant" will be to Her Majesty the Queen only.
THE EVIDENCE
[2] The parties filed an Agreed Statement of Facts at the opening of the trial in the following form:
1. The Plaintiff commenced employment with the Department of Trade and Commerce on May 10, 1951, following a national competition for entry into the Trade Commissioner Service, in which he placed second. The Plaintiff remained with the Department for 33 years.
| 2. During 1984, the Plaintiff was employed in the Service Industries Branch of the Department, which was then called the Department of Regional Industrial Expansion. His supervisor was Ms. A.K. Liljefors, Director General of the Service Industries Branch. |
| 3. On May 31, 1984, A.K. Liljefors suspended the Plaintiff for four working days without pay effective June 4, 1984 for failing to carry out instructions regarding work assignments. |
| 4. On the same day, Ms. Liljefors suspended the Plaintiff for six working days effective June 9, 1984 for failing to comply with instructions regarding telephone conduct, hours of work and work assignments. |
| 5. The Plaintiff filed grievances in respect of both suspensions on June 13, 1984. |
| 6. On August 21, 1984, the Plaintiff executed a Physician"s Certificate of Disability for Duty signed by his physician, indicating that the Plaintiff was "subject to assessment in one week"s time." The Plaintiff submitted this certificate to his supervisor Kristyna Liljefors, the Director General of the Service Industries Branch of the Department on or about the same date. |
| 7. On September 5, 1984, the Plaintiff executed and submitted to the Director General a Physician"s Certificate of Disability for Duty signed by his physician, indicating a return date of October 1, 1984. |
| 8. The Plaintiff was absent from work on August 21, 1984 and did not thereafter return to the workplace for the purpose of taking up his duties except Aug 30/98 [sic - 1984]. |
| 9. On October 9, 1984, the Deputy Head of the Department, by his authorized delegate, Mr. Lucien Bradet, Director of the Human Resources Branch of the Department, was of the opinion that the Plaintiff had been absent from duty without authorization from October 1, 1984 to October 9, 1984, otherwise than for reasons over which he had no control. Pursuant to section 27 of the Public Service Employment Act, Mr. Bradet sent a letter to the Plaintiff and to the Public Service Commission declaring that, effective October 9, 1984, the Plaintiff had abandoned his position and ceased to be an employee of the public service. |
| 10. On October 30, 1984, the Plaintiff filed a grievance in respect of the declaration of abandonment of position. |
| 11. On November 1, 1984, the Plaintiff executed a Physician"s Certificate of Disability for Duty signed by his physician and indicating an estimated date of return to duty of December 1, 1984. |
[3] The evidence disclosed that the plaintiff"s employment in the Trade Commissioner Service started well and proceeded well until sometime in 1972. At that time, his posting in Beirut, Lebanon was cut short and he was recalled to Ottawa. The recall apparently centred around a policy dispute between the plaintiff and senior officials of the Department by which he was employed.2 The plaintiff was removed from the Trade Commissioner Service and never returned to it. In effect, his very significant career prospects died. He was placed in positions that he came to regard as increasingly less satisfying. His relationship with the management of the Department never recovered.
[4] As indicated in the Agreed Statement of Facts, at the end of May, 1984, the plaintiff was twice suspended, first for "failing to carry out instructions regarding work assignments" and second "for failing to comply with instructions regarding telephone conduct, hours of work and work assignments." The plaintiff wrote directly to the Deputy Minister of the Department. The Deputy-Minister replied and his letter reads in part:
I consider this conduct [by the plaintiff] to be repeated insubordination on your part and I would ask you to advise Ms. Liljefors of the details of this "limited contact" in order to determine the necessity of any action by management. Further I have instructed her to inform me of any future instances where you do not comply with management"s instructions, and I must advise you that these will be dealt with severely.
[5] In his testimony before me, the plaintiff described the actions of his supervisor, obviously concurred in by his Deputy Minister, as "harassment".
[6] The plaintiff wrote to the Deputy Minister again. The Deputy Ministry replied in part:
I must also comment on your further questioning of Ms. Liljefors" authority. As the Director General of the Service Industries Branch she has been delegated the responsibility for directing its operations. This involves a range of duties, one of which is the assignment of tasks to employees. As a consequence, it was within her authority to re-assign you within the branch, and I am satisfied that she did so based on sound operational requirements.
[7] The plaintiff replied to the Deputy Minister on August 24. His letter reads in part as follows:
Concerning "Ms Liljefors" authority" I can only comment that the authority is subject to certain constraints and may not be exercised arbitrarily, capriciously nor in a manner incompatible with the public interest. The problem in this case is not Ms. Liljefors" authority as such (which I do not question) but the discriminatory use of such authority for purposes for which it was not intended.
[8] I am satisfied on the basis of the documentary evidence filed by the plaintiff, as supplemented by his oral testimony before me, that by August 24, 1984, the relationship between the plaintiff and management of the Department had so broken down that it was beyond salvation.
[9] The plaintiff testified that the atmosphere and environment at his place of employment had, not surprisingly, had a detrimental impact on his health. On August 21, the plaintiff received from a physician a "Physician"s Certificate of Disability for Duty" in which the physician indicated his opinion that the plaintiff was incapable, by reasons of illness or injury, of working at his normal occupation. No estimated date of return to duty was provided. Rather, the physician indicated that his opinion was subject to reassessment in "one week"s time." The physician prescribed medication for the plaintiff which the plaintiff described as being for treatment of depression, apprehension, a sense of inadequacy and overwhelming frustration. No medical opinion was provided by the plaintiff to support this description of his condition.
[10] On August 30, the plaintiff attended at his place of work. He was required to deliver up his security pass and he was denied access.
[11] Apparently responsive to the "reassessment" referred to in the Certificate of Disability dated the 21st of August, the plaintiff was provided with a further certificate indicating that the plaintiff remained incapable of working at his normal occupation and that the estimated date of return to duty was October 1, 1984.
[12] October 1st , came and went. The plaintiff remained away from his place of work. On October 9, the Director of the Human Resources Branch of the Department wrote to the Public Service Commission and to the plaintiff, in a letter apparently delivered to the plaintiff by hand, in the following terms:
I understand that you have been absent without authorization since October 1, 1984, the date on which you were to return to work. As well, it is my understanding that you visited the office on October 4, 1984, but did not see fit to use this opportunity to seek authorization for your absence.
Therefore, under the authority vested in me, pursuant to Section 27 of the Public Service Employment Act, I hereby declare that, effective October 9, 1984, you have abandoned your position and cease to be an employee of the public service. I have notified the Public Service Commission accordingly.3
I derive the following from the substance of the plaintiff"s testimony: a trap had been sprung. The plaintiff"s supervisor had told him that the Department would find a basis to fire him. He had provided the Department, at least technically, with a basis. The Department had seized it and had removed him from his employment in a way that deprived him of all benefits, including accumulated pension benefits based upon his more than thirty-three (33) years of service. This, according to the plaintiff"s testimony, despite the fact that the Department was well aware of his continuing medical condition which was confirmed by an informal Certificate of Disability dated October 9, which indicated the plaintiff should be "off duty" until the 1st of November, and a further Disability Certificate, on the appropriate form, dated November 1st, indicating that the plaintiff was incapable of working at his normal occupation until the 1st of December, 1984.
[13] The plaintiff had for some time been receiving advice and assistance from PIPS of which he was a member. He returned to PIPS and to a lawyer to seek advice with regard to this latest development. He wrote in a letter to a friend or acquaintance:
I have reported the attempted firing to the Professional Institute who are representing me in the grievance process and who will probably provide further assistance as required.
[14] PIPS wrote to the plaintiff on October 18th:
2. As discussed, I would attempt, if you approve, to persuade the department to withdraw the letter concerning abandonment in return for your agreement to resign. Resignation would avoid any financial loss. However, you have indicated that you do not wish to resign.
....
[15] PIPS wrote again to the plaintiff on October 26th, in part as follows:
| 1. It may be possible to persuade the department to: (a) reimburse you for the pay lost during the three periods of suspension, and (b) withdraw the abandonment letter, in return for your resignation. [An officer of PIPS] felt that if this compromise were considered, DRIE [the Department] would probably add a provision about your agreement not to proceed with any type of litigation. |
| This course of action would avoid financial loss and lessen the stress which has made necessary your recent periods of sick leave. ... |
The letter concludes:
We are awaiting your decision on what course of action you wish us to take i.e. an attempt to compromise with DRIE or a combined referral to adjudication of the 3 grievances on suspension and the grievance on abandonment alleging a disciplinary motive.
[16] Clearly, thereafter, and perhaps even before the second letter from PIPS to the plaintiff from which I have quoted, PIPS was engaged in negotiations with the Department on behalf of the plaintiff. While those negotiations produced an agreement signed by the Department, PIPS and the plaintiff to which I will shortly refer, the plaintiff testified before me that he became increasingly concerned that PIPS was not effectively representing his best interests, was indeed in a conflict of interest position, and that the lawyer from whom he was receiving advice was also not representing his best interests.
[17] The agreement which was signed in late December, 1984 is set out as an Appendix to these reasons. The essence of the agreement is as follows: the notice of abandonment was rescinded and all records relating to it were deleted from the plaintiff"s file; all notices of disciplinary action were to be removed from the plaintiff"s file; three suspensions imposed on the plaintiff for a total of 12 days were to be rescinded and the plaintiff was to be paid for the 12 days; the plaintiff was to be granted sick leave with pay from October 1, 1984 through to November 2, 1984; from November 5, 1984 through to the close of business on December 28, 1984 the plaintiff was to be granted vacation leave with pay; the plaintiff agreed to retire effective December 29, 1984 "...with all of the benefits to which he will be entitled upon that date"; PIPS agreed to withdraw all outstanding grievances on behalf of the plaintiff; PIPS and the plaintiff agreed to withdraw all references to adjudication; the plaintiff agreed to withdraw a complaint that he had apparently filed under the Canadian Security Intelligence Service Act;3 and finally, the plaintiff agreed to forego any legal proceedings arising out of his employment in the Public Service up to the date of the agreement.
[18] One of the documents produced as an exhibit before me is entitled "NARRATIVE of Events Leading to "Abandonment of Position" 1984." It is undated. It was prepared by the plaintiff who was unable to testify, with any certainty, as to when he prepared it. The document indicates that the agreement eventually signed was first made available to him in the office of a PIPS official on December 7, 1984. The plaintiff testified that, by that stage, he was, as the document indicates, "deeply depressed and confused", not only by the breakdown in relationships with his employer, but also by what he considered to be "...the apparent ambiguity on the part of my advisors." In the document, the plaintiff refers to advice that he had received from the lawyer to whom he had turned to the effect that "...agreements signed under duress were not legally binding." The plaintiff felt that he was indeed under duress. He testified that he signed the agreement in reliance on the advice that, because of the duress that he felt, he could, at a later date, disavow the agreement by reason of duress.
[19] The defendant presented no evidence.
ISSUES
[20] The issues before the Court in this action may be briefly summarized as follows:
| 1. Whether, at the time this action was instituted, that is to say |
December 7, 1990, the limitation period for bringing the action
had expired;
| 2. If the limitation period in respect of an action such as this had not expired, whether the agreement among the defendant, PIPS and the plaintiff signed in late December 1984 itself constitutes a complete bar to this action; |
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| 3. If the limitation period has not expired and the agreement does not constitute a bar, whether there is, on the facts of this matter, a reasonable cause of action before this Court for wrongful dismissal arising out of the notice of abandonment dated October 9, 1984. |
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| 4. Should an adverse inference be drawn against the defendant on the |
basis of her failure to adduce any evidence at trial.
ANALYSIS
1. Is this action statute barred?
[1] Counsel for the defendant urged that, by virtue of section 32 of the Crown Liability Act4, provincial laws relating to prescription and the limitation of actions apply to proceedings such as this against the federal Crown. He urged that subsection 39(1) of the Federal Court Act 5 is to the same effect. On the facts of this matter, he submitted, the relevant provincial law is the Limitations Act6 of the Province of Ontario. The relevant portions of subsection 45(1) of that Act provides as follows:
45.(1) The following actions shall be commenced within and not after the times respectively hereinafter mentioned,
| (g) an action for trespass to goods or land, simple contract or debt grounded upon any lending or contract without specialty, debt for arrears of rent, detinue, replevin or upon the case other than for slander, within six years after the cause of action arose. |
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Counsel submitted that the plaintiff"s claim here before the Court is a claim in simple contract without specialty and that the cause of action herein arose upon delivery of the notice of abandonment, that is to say, on October 9, 1984. The action herein was commenced by filing of the Statement of Claim, in its original form, on December 7, 1990. Thus, counsel urged, more than six years elapsed between the time the cause of action arose and the commencement of this action.
[2] Counsel for the plaintiff, by contrast, urged that this cause of action arose upon the signing of the agreement among the defendant, PIPS and the plaintiff in late December, 1984, slightly less than six years before the commencement of this action.
[3] On this issue, I conclude in favour of the plaintiff. I am satisfied that, while the notice of abandonment given on October 9, 1984 is a culminating event in the long dispute between the plaintiff and the defendant, the principal issue before the Court in this action is the impact, if any, of the purported contract entered into in late December, 1984. The plaintiff, through PIPS, had filed a grievance in respect of the notice of abandonment. By virtue of the purported contract, he and PIPS gave up the right to pursue that grievance. Thus, I am satisfied that the critical issue before the Court is whether the giving up of that grievance, and any potential remedy that might flow to the plaintiff therefrom, was for valid consideration such as to create an accord and satisfaction between the plaintiff and the defendant. Put another way, the critical issue is whether, at the time he signed the agreement, there was such duress against the plaintiff as to render the agreement, under which he gave up his right to pursue a remedy by way of grievance, an unconscionable bargain.
[4] Thus, I find that the plaintiff"s claim is not statute barred.
2. Does the Agreement among the Defendant, PIPS and the Plaintiff entered into in late December, 1984 constitute a complete bar to this action?
[5] For ease of reference, I repeat here brief provisions of that agreement:
| 7) The Professional Institute of the Public Service and Mr. Macdonald [the plaintiff] agree to withdraw all outstanding grievances. These include; ... |
| c) Grievance of October 30, 1984, in respect of the abandonment of position effective October 1, 1984 ... |
| 10) Mr. Macdonald agrees not to file any future claims, complaints or grievances or take any legal action in respect of any or all of his entire period of employment in the federal public service, and further agrees to discontinue any legal action in this regard now in progress. This does not apply to any claims, complaints or legal action arising out of any future dealings with the federal public service. |
[6] In Blackmore v. Cablenet Ltd.7, on the issue of unconscionability, Mr. Justice Feehan wrote:
In Stephenson v. Hilti (Can.) Ltd., (1989), 29 C.C.E.L. 80 (N.S.S.C.T.D.)...Hallett, J. summarized the law as follows (at 87):
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"A transaction may be set aside as being unconscionable if the evidence shows the following: |
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(1) That there is an inequality of bargaining position arising out of ignorance, need or distress of the weaker party; |
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(2) The stronger party has unconscientiously used a position of power to achieve an advantage, and |
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| (3) the agreement reached is substantially unfair to the weaker party or, as expressed in the Harry v. Kreutziger case, it is sufficiently divergent from community standards of commercial morality that it should be set aside." |
[7] More recently, in Kerster v. Alkali Lake Indian Band,8 Mr. Justice Coultas examined the same issue from the perspective of "accord and satisfaction". He quoted with approval the words of Middleton J. A. in Lindsey v. Heron & Co.9 to the following effect:
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The law applicable to this case is most clearly expressed in Corpus Juris, vol. 13, p. 265: - |
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"The apparent mutual assent of the parties essential to the formation of a contract, must be gathered from the language employed by them, and the law imputes to a person an intention corresponding to the reasonable meaning of his words or acts. It judges of his intention by his outward expressions and excludes all questions in regard to his unexpressed intention. If his words or acts, judged by a reasonable standard, manifest an intention to agree in regard to the matter in question, that agreement is established, and it is immaterial what may be the real but unexpressed state of his mind on the subject. |
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If, whatever a man"s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party"s terms. ..." [citation omitted]
[8] Having observed the plaintiff giving evidence before me, I harbor no doubt as to his honesty and integrity and his commitment to principle. At the same time, both his oral testimony and the documentation which he, through his counsel, placed before the Court demonstrated to my satisfaction that flexibility and a capacity to accommodate policy positions other than those he personally espoused are not among his most prominent personal characteristics. During his testimony he stated:
A. Well, I contacted the assistant deputy minister in charge of that sector of the department, and the deputy minister, protesting that I was being deprived of the ability to exercise my functions and to draw on my experience, and that thereby the director general -- that"s Ms. Liljefors -- was acting perversely and contrary to deparmental interest.
And I think I made a good case again that we should be cultivating these Arab markets simply because that"s where the money was. Whether Arabs are communists, to me that was immaterial, because the exports are sort of non-political unless it"s a case of perhaps sending arms to your enemy, or something like that. Otherwise, it should have been kept on a purely objective and universal basis.
But neither the deputy minister nor the assistant deputy minister accepted the argument and of I was fired again.10
[9] As I indicated earlier in these reasons, I am satisfied that by the summer of 1984, the relationship between the plaintiff and the management of his Department had broken down to the point where it was beyond recovery. The plaintiff testified that he had been advised by management that if he did not voluntarily resign, he would be fired. When he responded by indicating that he would not resign and that he could not be fired without just cause, he was advised that the moment would come when just cause would exist. I have no reason to doubt that such an exchange took place. One impact of such an exchange was to put beyond doubt in the mind of the plaintiff that, while the management of his Department would not act capriciously, if and when the opportunity arose to fire him, management would seize it. In such circumstances, it is not difficult to accept the plaintiff"s evidence that he was under extreme stress in the workplace and that a result was some level of exhaustion. Nonetheless, he soldiered on, without compromise as to his policy views, until he went on certified sick leave in late August of 1984. Even then, he returned to his place of work only to have his security pass seized and his access to his office area barred.
[10] Between October 1 and October 9, the plaintiff provided the management of his Department with the opportunity that management was looking for. He was, beyond question on the evidence before me, "absent" in the words of section 27 of the Public Service Employment Act quoted earlier in footnote 1: "...otherwise than for reasons over which, in the opinion of the deputy head, the employee had no control or otherwise than as authorized or provided for by or under the authority of an Act of Parliament..." . His medical certificate permitting him to be absent had expired. He adduced no evidence to demonstrate that he could not have obtained and provided to his employer a new certificate. Indeed, on October 9, presumably after receiving the notice of abandonment, he did precisely that. While I find that during that critical interval he may have been suffering from depression and exhaustion, the evidence did not go so far as to demonstrate that his condition was such as to preclude him from obtaining and providing to his employer a certificate that would have justified his continuing on medical absence from his place of employment.
[11] Following receipt of the notice of abandonment, the evidence demonstrates that the plaintiff sought advice and assistance with regard to his legal position, was given such advice and assistance, and was provided with a reasonable opportunity to consider his options and to give instructions. The evidence further demonstrates that, whatever might have been his mental state, and I had only the plaintiff"s own evidence on that question, and I place little weight on that evidence, he gave instructions, a draft contract was drawn up, he was given an opportunity to review it and was advised by PIPS to sign it. While the plaintiff now describes the advice of PIPS as self-serving, he nonetheless signed the contract without disclosing to the Department or PIPS the position now foremost in his mind: that he was doing so on the understanding that if he ever changed his mind, he would be free to do so, because he signed the contract under duress.
[12] Against the test for unconscionability quoted earlier from Blackmore, I am satisfied that there was an inequality of bargaining position between the Department and the plaintiff arising out of the distress of the weaker party, the plaintiff. However, I am not satisfied that the stronger party, the Department, "unconscientiously" or, perhaps to confuse terms, "unconscionably", used its position of power to achieve an advantage. Management of the Department had, as I have indicated earlier, made it very clear that it wanted the plaintiff to resign, and that the employer/employee relationship had been irreparably damaged. It also made clear that, failing a resignation, the employer would do what it could, within law, to fire the plaintiff. The plaintiff was on notice. The evidence discloses that he proceeded very cautiously, notwithstanding his distress, to the moment where he made his "fatal" mistake. In all of the circumstances, I cannot conclude that the stronger party, the Department, acted unconscientiously or unconscionably.
[13] Nor can I conclude that the agreement reached, that is to say, the agreement signed in late December, 1984, was substantially unfair to the weaker party, the plaintiff, or was sufficiently divergent from community standards of commercial, or here more aptly, employer/employee, morality that it should be set aside. The plaintiff had, through his own inaction, and through action on the part of the Department of which he was forewarned, lost his entitlement to all benefits that would normally have been his on retirement. By the agreement, those benefits were restored. Negative information appearing on his personnel record was purged. Periods for which he had been suspended without pay reverted to periods of normal employment with pay despite the fact that he did not work during those periods. He was allowed an additional period of sick leave with pay. He was allowed a period of holiday leave also with pay, pending his resignation at the end of December, 1984. The plaintiff described these concessions in his evidence as no concessions at all but rather a provision to him of that to which he was lawfully entitled. I disagree with this characterization.
[14] On the test of accord and satisfaction, I am satisfied that there was an agreement among the Department, PIPS, and the plaintiff, whatever might have been in the mind of the plaintiff when he signed, figuratively speaking, with his fingers crossed behind his back. The outward expression of his intention was his signing of the agreement. That is what is relevant. His unexpressed intention is immaterial. Once again, in the words quoted from Corpus Juris in Kerster:
If his words and acts, judged by a reasonable standard, manifest an intention to agree in regard to the matter in question, that agreement is established, and it is immaterial what may be the real but unexpressed state of his mind on the subject.11
Against that test, accord and satisfaction existed in favour of and against the plaintiff in the agreement that he signed in late December, 1984.
[15] For the foregoing reasons, I conclude that the agreement constitutes a complete bar to success by the plaintiff in this action.
| 3. If the agreement is not a complete bar, then, on the facts of this matter does the Plaintiff have a reasonable cause of action before this Court for wrongful dismissal? |
[16] In view of my conclusion with respect to question 2, this question does not arise. However, in the event that my decision herein might go on appeal and that I might be found to have erred in arriving at the conclusion that I did on question 2, I will very briefly deal with this question.
[17] By virtue of section 24 of the Public Service Employment Act, the plaintiff"s tenure of office as an employee in the Public Service of Canada was for an "indeterminate" period. Where a public servant such as the plaintiff is suspended or discharged during a period of indeterminate employment, by virtue of the Public Service Staff Relations Act12 the employee, here the plaintiff, is entitled to present a grievance and, if dissatisfied following the grievance process, to refer the result to adjudication. Those processes were open to the plaintiff. In fact, through PIPS, he initiated those processes. By the agreement that he signed in late December 1984, he gave up the right to pursue those processes. If that agreement was of no force or effect, and that is not my finding, it is an open question whether now the plaintiff would be at liberty to reinstate those processes. In Ricafort et al. v. Canada13 Mr. Justice Strayer wrote:
It has been frequently held that in the absence of special circumstances, the remedies of a dismissed public servant lie elsewhere and not in actions for wrongful dismissal... A special circumstance might exist, for example, where an employee was appointed for a fixed term ... but that is not what the plaintiffs are alleging here. [cross reference omitted]
This statement of the law by Mr. Justice Strayer was affirmed by the Federal Court of Appeal in Hodson v. R.14. Given my earlier findings, I find no special circumstances here. If I were to be found wrong in my earlier findings and the late December, 1984 agreement were found to be of no force or effect, then I concede that this action might demonstrate special circumstances that would take it outside the general principle enunciated in Ricafort.
| 4. Does the failure of the defendant to adduce any evidence at trial give rise to an adverse inference against the defendant? |
[18] This issue was not raised by the parties but rather was raised by me at the hearing on the basis of my decisions in Apotex Inc. v. Canada (Minister of National Health and Welfare)15 and Highwood Distillers Ltd. v. The Queen.16 Both of those decisions arose out of applications for judicial review on which the respondent filed no evidence. I provided time to counsel to consider those decisions and to submit written representations. Counsel for the defendant provided me with written representations. Counsel for the plaintiff did not respond.
[19] In reasons for the Apotex decision, I wrote:
The Minister filed no evidence on this application that would go to the question of why, in the light of the jurisprudence referred to earlier in these reasons, the Register has been purged in part only of process patents and not at all with respect to intermediate patents. ... There was, of course, no obligation on the part of the Minister to file such evidence.
I then went on to cite evidence before me that, I concluded, " begged for" reply evidence.
[20] As in Apotex, I am here convinced that there was no obligation on the part of the defendant to file evidence if counsel for the defendant was satisfied that the plaintiff, on whom the onus lies, had simply failed to make out his case. Here, unlike in Apotex, nothing in the evidence before me "begged" for reply evidence.
[21] I am satisfied that this matter is entirely distinguishable from the Apotex and Highwood decisions. On the basis of the submissions received from counsel for the defendant, I conclude that there is no basis whasoever on which to draw an adverse inference against the defendants by reason of the decision communicated through counsel to adduce no evidence at trial.
CONCLUSION
[22] In light of my findings, no declaration in favour of the plaintiff, as sought, would be appropriate. The plaintiff adduced no evidence on the question of damages and counsel on his behalf made no substantial submissions with respect to entitlement to punitive or exemplary damages. Given my earlier findings, it will be unnecessary to reconvene the hearing of the action for consideration of these issues and of any quantum of any form of damages. The plaintiff"s action will be dismissed.
COSTS
[23] The defendant is entitled to her costs of this action, as against the plaintiff, if demanded.
There will, of course, be no order as to costs in favour of or against PIPS.
_________________________
Judge
Ottawa,Ontario
November 3, 1998
APPENDIX
Agreement between:
| Her Majesty Queen in Right of Canada as represented by the Minister of Regional Industrial Expansion, |
| The Professional Institute of the Public Service, and |
Mr. I. V. Macdonald
It is understood by the parties to this Agreement that the settlement has been agreed to without prejudice or admission of any liability. Neither the Department of Regional Industrial Expansion nor the Professional Institute of the Public Service will consider the conditions outlined below to establish a precedent with respect to future cases.
Also, the parties to this Agreement agree not to publish or to release to any third party any of the conditions contained herein.
The following conditions have been agreed to by all of the parties to this agreement:
| 1) The Department of Regional Industrial Expansion (the "department") will rescind the notice of abandonment of position dated October 9, 1984 and Mr. Macdonald will be re-instated as an employee of the department effective October 1, 1984. All records pertaining to the abandonment of position will be deleted from the employee"s file. |
| 2) All notices of disciplinary action will be removed from the employee"s file in respect of any or all of his entire period of employment with the federal public service. |
| 3) The three suspensions imposed for the periods, January 16, 17; June 4, 5, 6, 7; and June 8, 11, 12, 13, 14 and 15 (for a total of 12 days) will be rescinded and the employee will be paid for this period. |
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| 4) For the period October 1, 1984 through November 2, 1984, the department will grant sick leave with pay to Mr. Macdonald. |
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| 5) For the period November 5, 1984 through the close of business, December 28, 1984, the department will grant vacation leave with pay. |
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| 6) Mr. Macdonald hereby retires effective December 29, 1984, with all of the benefits to which he will be entitled upon that date. |
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| 7) The Professional Institute of the Public Service and Mr. Macdonald agree to withdraw all outstanding grievances. These includes: |
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| a) Grievance of June 13, 1984, in respect of the four day suspension effective June 4, 1984 |
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| b) Grievance of June 13, 1984, in respect of the six day suspension effective June 8, 1984 |
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| c) Grievance of October 30, 1984, in respect of the abandonment of position effective October 1, 1984 |
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| d) Grievance of October 10, 1984, in respect of the department"s withdrawal of Mr. Macdonald"s building pass. |
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| e) Any other grievances since October 10, 1984 of which the department has yet to receive notice. |
| 9) The Professional Institute of the Public Service and Mr. Macdonald agree to withdraw all references to adjudication. |
| Mr. Macdonald agrees to withdraw his complaint of October 18, 1984, under the Canadian Security and Intelligence Act. |
| 10) Mr. Macdonald agrees not to file any future claims, complaints or grievances or take any legal action in respect of any or all of his entire period of employment in the federal public service, and further agrees to discontinue any legal action in this regard now in progress. This does not apply to any claims, complaints or legal action arising out of any future dealings with the federal public service. |
| The provisions of this Agreement shall be effective upon the date of signing of all the signators. |
| Minister of Regional Industrial Expansion per: |
| "Signed by the Director General" "27/12/84 |
| _________________________________ _______________________ |
Human Resources Branch
Professional Institute of the Public Service per:
| "Signed by K. Phythian" "20 Dec. 84" |
| _____________________________________ ________________________ |
K. Phythian
Manager,
Employment Relations Department
| "Signed by I. Macdonald" " date illegible" |
| _____________________________________ ________________________ |
__________________
1 In the form applicable on the facts of this matter, R.S.C. 1970, c. P-32.
2 As indicated in the Agreed Statement of Facts, the Plaintiff was originally employed by the Department of Trade and Commerce. At least twice during his period of service, that Department was reconstituted, first as the Department of Industry Trade and Commerce and later as the Department of Regional Industrial Expansion. The Department of Government in which the Plaintiff was employed will be referred to simply as the "Department" as I am satisfied the changes of name and mandate were irrelevant for the purposes of this action.
At the relevant time, section 27 of the Public Service Employment Act read 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. |
27. Lorsqu"un employé s"absente de son poste pendant une semaine ou davantage, sauf pour des raisons qui, de l"avis du sous-chef, sont indépendantes de sa volonté, ou sauf en conformité de ce qui est autorisé ou prévu par une loi du Parlement ou sous son régime, le sous-chef peut, au moyen d"un écrit approprié adressé à la Commission, déclarer que l"employé a abandonné le poste qu"il occupait. Cet employé cesse dès lors d"être un employé. |
| |
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3 S.C. 1984, c. 21.
4 R.S.C. 1985, c. C-50 s. 32.
5 R.S.C. 1985, c. F-7.
6 R.S.O. 1980, c. 240.
7 [1995] 3 W.W.R. 305 at 315 (Alta. Q.B.).
8 [1998] B.C.J. No. 1869 (B.C. S. C. ), (Q.L.).
9 (1921), 50 O.L.R. 1, 64 D.L.R. 92 (Ont. C.A.).
10 Transcript, Vol. 1, pp. 42-3
11 Supra, note 9.
12 R.S.C. 1970, c. P-35.
13 (1988), 24 F.T.R. 200 at 203 (F.C.T.D.).
14 [1992] F.C.J. No. 1004 (F.C.A.), (Q.L.).
15 [1998] F.C.J. No. 1096 (F.C.T.D.) (Q.L.).
16 [1998] F.C. J. No. 210 (F.C.T.D.) (Q.L.).
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