Reilly v. The King, [1932] SCR 597

Supreme Court Of Canada

Reilly v. The King, [1932] S.C.R. 597

Date: 1932-06-15.

Clifford B. Reilly (Petitioner) appellant,

and

His Majesty The King Respondent.

1932: May 27; 1932 June 15.

Present: Anglin C.J.C. and Rinfret, Lamont, Cannon and Orde (ad hoc) JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA

Crown—Appointment to public office—Abolition of office—Claim by appointee against Crown for damages for breach of contract—Federal Appeal Board—Dominion Acts, 1923, c. 62, s. 10; 1925, c. 49; 1926-1927, c. 66; 1930, c. 35 (Acts to amend the Pension Act).

Appellant was appointed, by Order in Council and by Commission, as a member of the Federal Appeal Board, under s. 10 of An Act to amend the Pension Act, 1923 (Dom.), c. 62. His appointment was extended (under statutory amendments in 1925, c. 49, and 1927, c. 65), the last extension being for a period of five years from August 17, 1928. By c. 35 of the statutes of 1930, Parliament in effect abolished the Board and provided for the establishment of new tribunals, and appellant thereby lost his said office. He claimed damages from the Crown for breach of contract.

Held (affirming judgment of Maclean J., President of the Exchequer Court of Canada, [1932] Ex. C.R. 14), that appellant could not succeed.

Appellant’s appointment to his office, even for a definite period, did not deprive the Crown of the right to terminate the appointment at any time; and a fortiori did not deprive Parliament of the power, by abolishing the office, of automatically terminating the appointment.

In an appointment to public office, while there is a contractual element in that the Crown, in effect, promises to pay the salary or other emolument fixed by law for services performed, yet this in no respect affects the Crown’s prerogative right, unless restricted by statute, to dismiss the servant at any time without incurring liability for damages or further compensation. Even if there be a contract of service, the Crown’s absolute power of dismissal is deemed to be imported into it, and nothing short of a statute can restrict that power.

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APPEAL from the judgment of Maclean J., President of the Exchequer Court of Canada[1], holding that the present appellant (petitioner) was not entitled to the relief sought by his Petition of Right.

The appellant claimed from the Crown a sum for damages for alleged breach of contract.

Section 10 of An Act to Amend the Pension Act, chapter 62 of the Statutes of Canada, 1923, provided for the creation of a Board, to be known as “The Federal Appeal Board,” the members to be appointed by the Governor in Council on the recommendation of the Minister of Justice, to hear certain appeals with respect to pensions, etc. It was provided that the chairman should hold office during pleasure; that of the members first appointed, other than the chairman, one-half should be appointed for a term of two years and the others for a term of three years; that the chairman should be paid a salary of $7,000 per annum and each of the other members $6,000 per annum.

By amendment to the said statute, contained in chapter 49 of the Statutes of 1925, it was provided that the members first appointed (other than the chairman) should be eligible for re-appointment for a further term of two years, should the Governor in Council deem it advisable. By a further amendment to the statute, contained in chapter 65 of the Statutes of 1926-1927, it was provided that the members first appointed (other than the chairman) should be eligible for re-appointment for such further terms, not to exceed five years, as the Governor in Council might deem advisable.

By Order in Council of August 17, 1923 (P.C. 1620), and by letters patent under the great seal of Canada, dated August 17, 1923, the appellant was appointed as a member of the Board for a term of three years. By Order in Council of June 4, 1926 (P.C. 882) his term of appointment was extended to a term of five years from August 17, 1923. By Order in Council of August 16, 1928 (P.C. 1506) his term of appointment was extended for a period of five years from August 17, 1928, (with a proviso “that the appointment of any of the said members may be terminated at any time in the event of reduction in the Board’s

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Work to an extent sufficient to permit of its performance by fewer Commissioners”).

By chapter 35 of the Statutes of Canada, 1930, entitled An Act to Amend the Pension Act, the enactments relating to the constitution of the Federal Appeal Board were repealed, and provision was made for the establishment of new tribunals. Said c. 35 of the Statutes of 1930 received the royal assent on May 30, 1930, and the provisions thereof came into force, as provided by s. 17 thereof, on October 1, 1930.

In his Petition of Right, the appellant alleged (inter alia) that he accepted the appointment and extensions and took up residence in Ottawa in August, 1923, and continuously carried out, until some time in October, 1930, the duties prescribed for him; that he had duly declared himself to be, and was, still willing and able to carry out any duties, obligations or requirements arising out of the said employment; that on October 10, 1930, he was requested to vacate the premises which were allotted to him in August, 1923, for the performance of his duties as a member of the Board, and received a communication that the Federal Appeal Board was abolished and that all legal right of any member of the Board to any salary or emoluments would cease as of October 1, 1930.

The appellant’s claim was against the Crown for damages for alleged breach of contract. Maclean J.[2] held that he could not succeed; and he appealed to this Court.

R. Quain K.C. and J. T. Wilson for the appellant.

A. E. Fripp K.C. for the respondent.

The judgment of Anglin C.J.C. and Rinfret, Lamont and Orde (ad hoc) JJ. was delivered by

Orde J. (ad hoc),—The sole question here is whether or not, by virtue of the legislation creating the office and the nature of his appointment thereto, the appellant acquired a contractual or other vested right to the office and its emoluments.

It is argued that there was a contract between the appellant and the Crown for the performance by the appellant

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of the duties of the office during the period of time covered by his commission and for the payment by the Crown of the statutory salary therefor, and that the Grown cannot escape its liability in respect therefor merely because Parliament abolished the office.

Whether the Crown might not so bind itself by contract to pay for specific services over a certain period as to incur liability for a breach thereof is not the question here. Assuming the possibility of such a contract, was there any such contract in the present case?

I find it difficult to see in what way the appointment of the appellant to be a member of the Federal Appeal Board under the Pension Act as it then stood differed from many other appointments to offices under the Crown. It was urged during the argument that the earlier negotiations or communications between the Minister and the appellant, which culminated in the Order in Council authorizing the appointment, constituted, by way of offer and acceptance, a contract binding upon the Crown. But the circumstances leading up to the appointment did not differ materially from those which must accompany most appointments to public offices, and I cannot see how they distinguished this appointment from any other.

There is, of course, in every appointment to public office a contractual element in that the Crown, in effect, promises to pay the salary or other emolument fixed by law for services performed. But this in no respect affects the Crown’s prerogative right, unless restricted by statute, to dismiss the servant at any time without liability for damages or further compensation.

The principles governing appointments to civil offices under the Crown are summarized in Robertson’s Civil Proceedings By and Against the Crown, at p. 359. Even if there be a contract of service, the Crown’s absolute power of dismissal is deemed to be imported into it, and nothing short of a statute can restrict that power.

Here there was no dismissal from office by the Crown in the ordinary sense. Parliament abolished the office. The power of the Crown to abolish a civil office and thereby to deprive the holder thereof of any right to further compensation is recognized in Young v. Waller[3]. If in cases

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where its power is not restricted by statute the Crown may abolish an office, a fortiori Parliament which created it must surely possess the power.

It was argued that, notwithstanding the abolition of the offices, it must be assumed that Parliament did not intend to deprive those appointed thereto of their vested rights. In other words, that, in the absence of some express statutory provision to the contrary, the rights of the holders of the abolished offices to damages or compensation as upon a breach of contract were implicitly reserved. No authority for this as a general principle was cited, but reliance was placed upon the provisions of sec. 19 of the Interpretation Act, R.S.C. (1927), ch. 1, which preserves rights, privileges, obligations and liabilities acquired, accrued, accruing or incurred under a repealed Act. But this argument begs the question. If there is no right there is nothing to preserve. If the appellant’s appointment to his office even for a definite period did not deprive the Crown of the right to terminate the appointment at any time, and a fortiori did not deprive Parliament of the power, by abolishing the office, of automatically terminating the appointment, what right was there to preserve?

The judgment of the learned President of the Exchequer Court is right, and the appeal should be dismissed with costs.

Cannon J.—The fundamental rule of our constitution requires that the legislative, executive and judicial branches of our body politic must be kept distinct and respect the independence of one another. No tribunal can interfere with the free agency of one or, as in this case, two of the constituent parts of the sovereign powder. We cannot interfere with the dismissal by the Executive, following the abolition by Parliament of plaintiff’s office, although the plaintiff’s commission may be read as indicating that the right of the Crown to terminate his engagement at any time has seemingly not been imported in the order in council which extended his term of office for a definite period of five years from August 17, 1928.

Blackstone, No. 243, says that the subjects of England are not totally destitute of remedy, in case the Crown should invade their rights by private injuries:

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If any person has, in point of property, a just demand upon the King, he must petition him in his court of chancery, where his councellor will administer right as a matter of grace, though not upon compulsion. And this is entirely consonant to what is laid down by the writers on natural law. “A subject, says Puffendorf (Law of N. and N.B. viii, c. 10), so long as he continues a subject, has no way to oblige his prince to give him his due, when he refuses it; though no wise prince will ever refuse to stand to a lawful contract. And if the prince gives the subject leave to enter an action against him, upon such contract, in his own courts, the action itself proceeds rather upon natural equity than upon the municipal laws.” For the end of such action is not to compel the prince to observe the contract, but to persuade him.

We cannot do more. Let Parliament remedy appellant’s wrong if they see fit, but the Exchequer Court and this Court cannot enforce the demand of the Petition of Right; and the appeal must be dismissed with costs, if respondent will exact them.

Appeal dismissed with costs.

Solicitors for the appellant: Quain & Wilson.

Solicitor for the respondent: W. Stuart Edwards.