Date: 20051103
Docket: T-570-03
Citation: 2005 FC 1490
BETWEEN:
JON A. LIVINGSTON
Plaintiff
and
HER MAJESTY THE QUEEN as represented by the MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE
Defendant
REASONS FOR ORDER
HUGHES J.
[1] This is an action in which the Plaintiff Jon A. Livingston is claiming against the Defendant Her Majesty the Queen as represented by the Minister of Foreign Affairs and International Trade. The Plaintiff seeks relief including, but not limited to, a Work Force Adjustment Provision said to be owing to the Plaintiff at the time that his employment with the Department of Foreign Affairs and International Trade terminated.
[2] The Plaintiff was, for thirty two and one half years until August 1995, an employee of the federal government engaged with the Department of Foreign Affairs and International Trade as a Communicator (CM). In that capacity he served at a number of postings abroad including some postings considered to be quite dangerous. He is married and has a daughter. Due to the fact that the Plaintiff moved about considerably in his various postings, his daughter was placed in a private school in England where she was intended to receive an education of a standard at least equivalent to that which she could receive in Canada. This schooling proved to be expensive but so long as the Plaintiff was posted outside Canada, the government paid much of the cost as one of the benefits received by the Plaintiff by reason of his posting abroad.
[3] In about 1993, the federal government commenced a programme of staff reduction. As a result Communicators, such as the Plaintiff, were to be retrained for instance, as Systems Administrators. In August of 1994 the Plaintiff was recalled to Canada for the purpose of such retraining. This recall meant that the government would no longer provide certain benefits relating to a posting abroad such as paying for the Plaintiff's daughter's schooling in England. The Plaintiff nonetheless elected to continue his daughter's schooling in England. He borrowed from relatives and others for that purpose in the belief that his stay in Canada would be short and that he would again be posted abroad or, at least secure a temporary position with the government wherein certain other benefits were paid that would enable him to acquire funds that would defray the costs of his daughter's schooling in England.
[4] Late in 1994 the Plaintiff became aware that two postings of interest to him were coming available, one in Haiti for which he was not eligible since he was not fluent in French, and one in Tehran for which he was eligible and in respect of which he was interviewed. Such posting would have restored the Plaintiff's benefits arising from a posting abroad thus alleviating the Plaintiff's financial difficulties in respect of his daughter's schooling. The Plaintiff did not secure the posting in Tehran but was told that other foreign postings of interest to him were likely to become available in 1996. In the meantime the Plaintiff remained in Canada without the benefits afforded to those posted abroad and the costs of his daughter's education abroad obviously continued to trouble him.
[5] At the same time as the Plaintiff's issues were concerning him, the government was seeking to downsize the civil service by declaring some employees surplus, by offering early retirement incentives to others and, by retraining yet others such as the Plaintiff. Those that were declared surplus in writing by the appropriate government official were eligible to receive a payout package which would include (1) pay in lieu of an unfulfilled work period of up to six months (2) separation benefits of up to 15 weeks pay (3) severance pay of 2 weeks for the first year and one week thereafter for each year worked. Approval of pay in lieu of the period of up to six months was in the discretion of management but that discretion was not to be unreasonably denied. The early retirement incentives offered the removal of pension penalties otherwise imposed on those retiring before the age of 55. Effective July 15, 1995 those that would thereafter be declared surplus were no longer entitled to the separation benefits discussed above as item (2).
[6] The Plaintiff was seeking some way to keep his daughter in school abroad and apparently had several communications and meetings with his supervisors and those in human resources in this regard. Only a few documents can be located in this respect. One is a telex or telegram from Claudette Riel, Exhibit D-5, dated 01 Feb 94 which stipulates the three kinds of benefits available "assuming employee declared surplus". Another is an undated memorandum, Exhibit D-4, enumerating benefits "When a surplus employee is terminated". Another, Exhibit D-7 is a memorandum to the Plaintiff from his Personnel Director dated May 8, 1995 which states:
1. I have carefully read the contents of your memo and have reviewed your request with your assignment officer, David Smith. While I am sympathetic with the points outlined in your memo, we must also be cognizant of our constantly changing environment. During your career as a Communicator, overseas assignment possibilities were far more numerous. Today's realities present fewer opportunities with just 34 missions staffed by Canada-based SAs. Having been selected for training, your success in your new career as a SIGNET Systems Administrator will continue to provide overseas assignment opportunities in the future.
2. As you are aware, the implementation and SA staffing for SIGNET is now complete. This FY, the final two missions, Port-Au-Prince and Tehranwill shortly be staffed by candidates who have been carefully selected. With no further openings this year, your request for an assignment this year can not be actioned. This fall however, your personnel officer will begin the assignment process for seven missions scheduled for SA turnover in 1996 and I believe you have a list of these. You are encouraged to keep in contact with your assignment officer who will keep you aprised of this process.
[7] A handwritten, undated, note to file by a supervisor of the Plaintiff, Ms. Barsalore, records a meeting with the Plaintiff on July 28 in which it was "suggested he pursue possibilities outside".
[8] The Plaintiff apparently submitted a letter of resignation late in July, 1995 but was telephoned by Ms. Barsalore who said words to the effect that he shouldn't do this or that if he did, to ask for a work force adjustment even if he was no longer entitled to it, in the hopes that some compassion might be shown and that he would be given it anyway.
[9] On August 2, 1995 the Plaintiff sent a letter announcing his intention to retire. The relevant text states:
This is to advise that with considerable regret, it is my intention to retire from the Department of Foreign Affairs, effective August 15, 1995. Accordingly, I would be grateful if consideration could be given to offering the early retirement incentive.
As you are aware, my reasons for leaving are due to my personal situation, vis-a-vis our daughter's continued education, and our inability, under present circumstances, to maintain her at school in Englandfor another year. It is our hope that my separation can be used to defray this expense for a further year.
[10] As a result, the Plaintiff received severance pay, a pension, as well as letters of recommendation. He did not receive a work force adjustment. At that time the Plaintiff had not been declared surplus, he had been retrained, he was considered to be a valuable employee, and there was some expectation of a posting abroad in the next year.
[11] After announcing his intention to retire the Plaintiff first went to Vienna in an unsuccessful attempt to seek employment with an agency such as the United Nations. After a few months the Plaintiff returned to Canada and secured employment with a retail hardware store chain where he remains to this day.
[12] In about 1996 the Plaintiff heard rumours that others in circumstances similar to his had received work force adjustment. Although the Plaintiff was quite candid in his evidence before the Court that he realized that he should not expect to receive that adjustment, he wanted to know why others apparently received such adjustment and he did not.
[13] This set the Plaintiff on a course of action which motivated him to seek documents under the Access to Information Act and eventually he appeared before this Court in proceedings commenced in 1997 which were adjourned sine die by Order dated March 10, 1998. In settling such proceeding the Plaintiff received a letter from Simon Fothergill, Counsel, Vancouver Regional Office, of the Department of Justice dated September 19, 1997 stating in part:
More generally, it appears that your concern is not so much about access to information as the failure of the Department of Foreign Affairs to offer you a separation incentive. The latter issue is not presently before the Court. However, I am advised that the Department of Foreign Affairs is prepared to receive further submissions from you with respect to this matter.
In view of the foregoing, I confirm that you have agreed to either discontinue the application for judicial review, or apply to the Court for an order holding it in abeyance pending the outcome of further discussions with the Department of Foreign Affairs.
[14] As a result of such further discussions the Plaintiff received a letter dated June 15, 1999 from the Public Service Commission of Canada stating:
I acknowledge receipt of your request for investigation in which you complain that you were not, unlike others, given the separation incentive when you chose to retire in 1995.
The mandate of the Recourse Branch with respect to staffing is to investigate matters that are within the jurisdiction of the Public Service Commission as it pertains to the application of the Public Service Employment Act and Regulations.
Issues pertaining to separation incentive clearly do not fall within the mandate of the Public Service Commission. Consequently, the Recourse Branch cannot proceed any further with your request, and as a result, I have closed our file on this matter.
[15] The Plaintiff replied by letter dated June 24, 1999 stating:
Reference your letter to me, dated June 15, 1999.
Thank you for your prompt reply to my request for an investigation. I understand and accept the reasons for not proceeding further with my case.
The purpose of this letter is to ask if the Public Service Commission is able to suggest the name of an impartial agency that might be willing to take an objective look at this case. Any assistance you can offer will be most appreciated.
[16] The Plaintiff received a letter dated July 8, 1999 in response stating:
I acknowledge receipt of your letter which we received on June 28, 1999 in which you request the name of an impartial agency that could look into your case.
Unfortunately, there seems to be no impartial agency whose mandate this would fall under. I believe your only recourse at this time would be through the courts.
[17] As a result the Plaintiff instituted these proceedings. He chose to represent himself and not obtain the services of a lawyer. This has caused much of the delay and complexity arising in these proceedings. The pleadings are imperfect and were regularized by an Order of this Court dated the 19th day of April 2005 in which the factual and legal issues for determination at trial were set out as:
(a) Does the Federal Court have jurisdiction to decide the plaintiff's action given the remedies available to him under the Public Service Staff Relations Act, R.S.C. 1985, c.P-35, his Collective Agreement and the Work Force Adjustment Directive?
(b) Was the plaintiff entitled to compensation under the Work Force Adjustment Directive and enhanced pension benefits under the early retirement incentive applicable in 1995?
(c) To what extent was the plaintiff responsible for the consequences of his decision to retire? and
(d) What is the appropriate quantum of damages?
[18] At trial the Plaintiff himself was a witness. I found him to be honest, candid and credible. David Smith and Pat Jezewski, retired employees of the Foreign Service Branch of the government engaged in the personnel area were also called by the Plaintiff as witnesses by way of subpoena. I find them to be credible as well although understandably their memories as to events occurring almost ten years ago in respect of the Plaintiff's particular circumstances could not be expected to be complete.
[19] The Defendant called Ms. Centofanti, a current personnel officer in the Foreign Service Branch of the government, who explained some of the intricacies provisions of the government retirement scheme. I find her to be a credible witness.
[20] None of the evidence was in conflict. The Plaintiff knew he was getting certain benefits and had no expectation that he would also get work force adjustment as well save for his uncomfortable feeling, based on rumour, that others in like circumstances had received such benefits. No evidence was led to show that any others had in fact received such benefits in like circumstances. Others may have received benefits but it was not shown that their circumstances were the same as those of the Plaintiff.
[21] I find, however, that the government has been less than candid and not forthcoming with the Plaintiff. He was told that "your only recourse at this time would be through the courts", yet the government now argued that he should have started a grievance under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 . The Plaintiff sought documents which seem to be missing or destroyed. The Plaintiff sought compassion and was given a cold shoulder.
[22] The Plaintiff, being posted abroad with the Foreign Service, was entitled to luxurious benefits such as free tuition at an expensive private school for his daughter. The rationale apparently was that a Canadian child of a person posted abroad is entitled to an education equivalent to that received in Canada. The Plaintiff's entitlement to such luxury came to an end when he was returned to Canada. He should have brought his daughter back to Canada. He did not, he continued to keep her in an expensive school abroad which resulted in desperate financial circumstances, causing him, rashly, to resign in order to get some money to continue that education.
[23] On the other hand, the government while on occasion expressing some sympathy with the Plaintiff's position, acted lethargically, if at all. Nobody really paid attention. The Plaintiff was finally told to go to the court. He did. Compassion may or may not have been shown to others, this Court does not know.
[24] Therefore, as to the issues as set out in the Court's Order of April 19, 2005.
Issue (a):
Does the Federal Court have jurisdiction to decide the plaintiff's action given the remedies available to him under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, his Collective Agreement and the Work Force Adjustment Directive?
My answer to that is: Yes. The jurisdiction of this Court is not ousted, having regard to the actions of the Crown in the letter of September 19, 1997, to Mr. Livingston from Mr. Fothergill, stating that the Department of Foreign Affairs is prepared to receive further submissions from him in respect of this matter, and the letter of July 8, 1999, from Mr. Seems to Mr. Livingston, stating that Mr. Livingston's only recourse at this point would be through the courts. Vaughan v. Canada a Supreme Court of Canada Decision, [2005]1.S.C.R. No. 146 especially at paragraphs 29 and 33, indicates that the jurisdiction of the Court is not ousted under the PSSRA but that, under circumstances described in that case, and possibly even generally, deference should be given to the grievance procedure.
In this case, because the Crown was not dealing, as I view it, in good faith and expressly told him to go to court, Mr. Livingston has a Cause of Action. The jurisdiction in this Court is not ousted.
Issue (b):
Was the plaintiff entitled to compensation under the Work Force Adjustment Directive and enhanced pension benefits under the early retirement incentive applicable in 1995?
My answer to that is: No, he was not entitled to that compensation, having regard to the arcane provisions in force at that time and the manner in which he elected to retire from the Civil Service.
Issue (c):
To what extent was the plaintiff responsible for the consequences of his decision to retire?
My answer to that is that the Plaintiff, in law, is responsible, although he did have some expectation that he would be looked after. But that expectation is not one that the Courts can enforce.
Issue (d):
What is the appropriate quantum of damages?
In this case, it is nothing. Had I decided differently, it would have been the Work Force Adjustment Directive, together with any applicable interest.
In respect of costs, under Rule 400(6)(d) costs may be awarded against a successful litigant. Here the Crown expressly told Mr. Livingston to go to court. I award costs to the Plaintiff, Mr. Livingston, intended to defray his disbursements, fixed in the sum of $2,500.
[25] As a result, the action is dismissed. Under the provisions of Rule 400(6)(d) Federal Courts Rules, SOR/98-106, the Plaintiff is awarded costs so as to defray his disbursements, fixed in the sum of $2,500.
"Roger T. Hughes"
Ottawa, Ontario
November 3, 2005
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