Ivor St. Aubin d'Ancey v. Canada, docket T-464-94

     Court No. T-464-94

B E T W E E N:

     IVOR ST. AUBIN D'ANCEY

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN

     Defendant

     REASONS FOR JUDGMENT

CULLEN, J.:

     The above parties appeared before this Court in a breach of employment contract action.

     This is an application, pursuant to Rule 474 of the Federal Court Rules, for a preliminary determination of a question of law in accordance with an Order of this Court issued August 2, 1996. This Court has been asked to decide whether Section 14 of the Locally Engaged Staff Employment Regulations (SOR/79-545, Canada Gazette Part II, as amended) applied to the plaintiff, a civilian component employee. If this question is decided in the positive, this Court has been asked to determine whether Section 14 permits the plaintiff to receive more severance pay than he did in fact receive and also whether his notice period should have been assessed according to German law.

THE FACTS

     The plaintiff was a member of the Canadian Armed Forces for a good portion of his career. After retiring from the Canadian Armed Forces and while living in Canada, he was hired as a locally engaged civilian component employee with the defendant at Headquarters, Canadian Forces Europe (hereinafter, HQ-CFE). He commenced that employment on September 6, 1985.

     From November 10, 1986, to September 7, 1993, the plaintiff held the position of Senior Staff Officer, Civil/Military Co-Operation and Civic Affairs at HQ-CFE in Lahr, Germany. As such, the plaintiff was a member of senior management at HQ-CFE. The plaintiff's employment contract from November 10, 1986, to November 9, 1989, was governed by the Locally Engaged Staff Employment and Terms and Conditions Regulations (1979). The plaintiff's final employment contract with the defendant, dated October 15, 1991, which amended the 1986 contract, was also governed by these regulations, as well as "applicable directives, instructions, policies and orders of the Canadian Armed Forces and Canadian Forces Europe." This final contract stated that the term of employment in this position would be from November 9, 1991, until "the close of work on reaching age 65." Given the plaintiff's date of birth, the contract was to terminate on October 22, 1997.

     On January 27, 1993, the plaintiff, like many other civilian component employees of CFE, received official written notice of his lay-off due to work force adjustment pursuant to CFEO 24-53, advising that,

... due to Work Force Adjustment (WFA), your position has become surplus to Canadian Forces Europe (CFE) requirements. In accordance with the policy on WFA, you have been granted status as a surplus employee for a period of six (6) months. If you are not appointed to another position in CFE during your period as a surplus employee, you will be laid-off on 01 August, 1993.

     This letter also indicated that, because the plaintiff was a Canadian citizen and was not a dependent of military persons remaining, he would lose his privilege to be in Germany under the NATO Status of Force Agreement. As a result, the plaintiff would have two options: 1) re-locating to what was described as a new place of residence within the time specified (in the plaintiff's case, this meant re-locating to France within 60 days from the lay off date); or 2) applying to German authorities to establish residence in Germany.

     After being notified in January, 1993, of his lay-off, the plaintiff continued to be employed until September 7, 1993. At that time, he was given 2 2/3 months of severance pay in addition to the six month notice mentioned above.

     The notice and severance pay were given to the plaintiff in accordance with the Work Force Adjustment Policy of the defendant.

     The plaintiff was at all times an Appointment Priority Group "B" employee; that is, his NATO status was that of a Canadian citizen who was locally engaged under the Canadian Forces Europe - Civilian Component Appointment Priorities and Tenure of Employment Policy (hereinafter, "CFEO 24-57") This position stands in contrast to Priority Group "A" civilian component dependants of Canadian Forces members and Priority Group "C," civilian component nationals of other NATO Treaty Organization states. Apart from these three groups of CFE employees, there were also Collective Tariff Agreement (hereinafter, "CTA") employees. These employees were local German nationals subject to local German laws and regulations.

ANALYSIS

The submissions

     In the main action, the plaintiff primarily claims that his contract of employment with the Department of National Defence was for a specific term and was to continue until October 22, 1997. Since there was no cause for his termination, he is entitled to compensation for all wages,and the value of all benefits until that date.

     The subject of the application before this Court today concerns the plaintiff's alternative claim, that, pursuant to S. 14 of the Locally Engaged Staff Employment Regulations, he is entitled to notice which is equivalent to that required by the law of the country of termination in which he was posted. The plaintiff was posted in Germany and, pursuant to German law, he would be entitled to a minimum of 12 months of notice or pay in lieu thereof.

     The defendant submits that the plaintiff, as a civilian component employee of CFE, was not subject to the application of subsections 14(1) and (2) of the Regulations. Therefore, the plaintiff's notice period and severance pay were not subject to assessment according to German law. The defendant submits that the plaintiff's contract of employment was at all times governed by the policies and orders of the Canadian Armed Forces and Canadian Forces Europe. That policy provided for six month notice in a lay-off situation.

     The defendant submits that, in the overall scheme of workforce adjustment at CFE, the purpose of section 14 of the Regulations was to provide reasonable notice and severance pay to local national employees who were laid off; while other regulations, specifically, Management of the Civilian Work Force and Work Force Adjustment (WFA) in Canadian Forces Europe (CFEO 24-53), accomplished the same purpose for civil component employees who were laid off.

The Statutory Provisions

     The plaintiff's job existed pursuant to the Locally-Engaged Staff Employment Regulations SOR/79 545 (hereinafter, the "Regulations"), under the Public Service Employment Act. These are regulations respecting the employment of persons locally abroad. Section 2 of the Regulations makes a clear distinction between persons who are "civilian component employees" and those who are merely "employees." The relevant portions of this section read:

"civilian component employee" means a person who is employed locally under these Regulation and who

(a) qualifies as a member of the civilian component of Canadian Forces Europe under the Nato Status of Forces Agreement,

(b) is not in receipt of allowances under the Foreign Service Directive or the Military Foreign Service Regulations (1974) as amended, and

(c) is not a contributor under Part I of the Public Service Superannuation Act;

"employee" means a person, other than a civilian component employee, who is employed locally under these Regulations and who

(a) is not in receipt of allowances pursuant to the Foreign Service Directives, and

(b) is not a contributor under Part I of the Public Service Superannuation Act;

[emphasis mine]

This section also distinguishes between "integrated employees" and "non-integrated employees."

     Section 5 of the Regulations authorizes the Under-Secretary of State for External Affairs to employ persons locally as employees for various periods of time, and specifies the procedures to be followed for such hiring.

     Section 6 of the Regulations authorizes the Deputy Minister of National Defence to employ persons locally as civilian component employees for various periods of time, and also specifies that,

6. (3) All powers of the Under-Secretary of State for External Affairs under these Regulations with respect to employees are exercisable, with such modifications as the circumstances require, by the Deputy Minister of National Defence with respect to civilian component employees.

[emphasis mine]

     Section 10 of the Regulations speaks to the twelve-month probationary period that every employee and civil component employee shall be subject to. This section also authorizes the Under-Secretary of State to serve notice specifically to employees during the probationary period.

     Subsection 14, the interpretation of which is in dispute in this case, reads as follows:

14. (1) Where the services of an employee are no longer required due to lack of work or the discontinuance of a function, the Under-Secretary of State for External Affairs shall serve the employee with written notice that he is laid off effective on the expiration of

(a) one month from the date on which he receives such notice, or

(b) such period as is required by the law of the country in which the Post is situated,

whichever period is the greater.

(2) An employee who has been served with a notice pursuant to subsection (1) ceases to be an employee on the expiration of the greater period specified in that subsection.

(3) A person who has been laid off is entitled, for a period of twelve months following the lay-off, to enter any competitive process at the Post for which he would have been eligible, had he not been laid off.

[emphasis mine]

     Employees and civilian component employees are thus each given distinctive treatment under the Regulations. An interpretation section distinguishes between "civilian component employees" and "employees." Other sections separately authorize the hiring of each of these two categories of workers. Yet other sections speak to both employees and civilian component employees. The deliberate organization of the Regulations with respect to these two categories of workers leads me to conclude that Parliament intended that these two categories of workers be kept distinct. Different provisions apply to each. Where specified, these two categories of workers are treated separately. The civilian component employees fall under the authority of the Minister of National Defence, while the employees fall under the authority of the Under-Secretary of State for External Affairs. The only exception to this is found in s. 6(3), where the Deputy Minister of National Defence is authorized to exercise, with respect to civilian component employees, all powers of the Under-Secretary of State for External Affairs in certain situations.

     The above interpretation of the Regulations is in keeping with the definition given to "civilian component" in the Agreement between the Parties to the North Atlantic Treaty Regarding the Status of their Forces. This document is referred to in s. 2(a) of the Regulations, and states that the "civilian component" means,

... the civilian personnel accompanying a force of a Contracting Party who are in the employ of an armed service of that Contracting Party, and who are not stateless persons, nor nationals of any State which is not a Party to the North Atlantic Treaty, nor nationals of, nor ordinarily resident in, the State in which the force is located;

[emphasis mine]

A clear distinction is drawn between people whom the Canadian Forces hire who are nationals or who are ordinarily resident in the State in which the Canadian Forces are located, and people hired locally who are not nationals or ordinarily resident in the particular state. The plaintiff fell into the latter category, and thus was classified as a "civilian component employee." Were the plaintiff a German national or ordinarily resident in Germany, he would have been classified as an "employee" under the Regulations, and his severance notice and pay would have been assessed according to German law.

CONCLUSION

     Upon hearing counsel and considering the written evidence before this Court, it is clear that, expressio unius est exclusio alterius, the references to "employee" in s. 14(1) and (2) do not include "civilian component employees." Accordingly, subsections 14(1) and (2) do not apply to the plaintiff, who is, therefore, not entitled to receive more severance pay than he did, in fact, receive. The plaintiff's notice period need not have been assessed according to German law.

OTTAWA

     B. Cullen

October 31, 1996.

     J.F.C.C.