Kelso v. The Queen, [1981] 1 SCR 199

Supreme Court of Canada

Kelso v. The Queen, [1981] 1 S.C.R. 199

Date: 1981-02-03

Donald C. Kelso (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1980: November 10; 1981: February 3.

Present: Laskin C.J. and Ritchie, Dickson, Chouinard and Lamer JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Labour law—Public Service—Tenure of position—Bilingualism—Regulation exempting employees in bilingual positions from statutory linguistic requirements—Operation of Public Service Official Languages Exclusion Order—Right to remain in or to be reinstated to former position—Employer’s management rights as opposed to employee’s rights to remain in position—Public Service Employment Act, R.S.C. 1970, c. P-32, s. 31—Financial Administration Act, R.S.C. 1970, c. F-10, s. 7(1)—Public Service Official Languages Exclusion Order, SOR/77-886, s. 6(a).

Appellant, a unilingual anglophone air traffic controller was transferred under protest from Montreal to Cornwall after his Montreal position had been declared bilingual. Both the Federal Court-Trial Division and the Federal Court of Appeal dismissed appellant’s application for a declaration that he was entitled to remain in, or to be reinstated to, his former position with full salary and benefits. The issues before the Court were narrow. Firstly, did the exception created by s. 6(a) of the Public Service Official Languages Exclusion Order, SOR/77-886, exclude the appellant from the general requirement of bilingualism created by the Public Service Employment Act? Secondly, was appellant’s right to remain in or to be reinstated to his Montreal position extinguished by his having accepted, under protest, the Cornwall position? Thirdly, did the employer’s general power to allocate and manage manpower resources override any right which appellant may have enjoyed to remain in his former position?

Held: The appeal should be allowed.

The Exclusion Order prohibited the government from “separating” an incumbent from his position on the sole basis of language, whether for incapacity under s. 31 of the Public Service Employment Act or by an involuntary transfer. While the Exclusion Order did not have

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the effect of vesting in the appellant a right in any particular position the government’s right to allocate resources and manpower was not unlimited in that it could not override the Exclusion Order.

An employee’s rights were not to be extinguished because he chose not to accept the risk of dismissal for refusing to follow his employer’s reasonable instructions, as required at common law, while contesting the legality of those instructions. A contrary conclusion could lead to the intolerable situation of an employee risking disciplinary action in order to preserve legal rights. The relevant issue, therefore, was whether the employee had been separated de jure from his position and not whether he had been separated from it in fact.

Considerations concerning the bona fides of the officers and the impropriety of the pressure were irrelevant. Where an official lacked the legal authority to do an act, it was not a defence to claim against him that he honestly believed that he had the requisite authority.

The Court could not actually appoint the appellant to the Public Service for the administrative act of appointment was to be performed by the Commission. Nevertheless, the Court was entitled to “declare” the respective legal rights of the appellant and the respondent. The Public Service Commission was subject to the law and if it acted otherwise the courts were entitled so to declare.

Pepper v. Webb, [1969] 1 W.L.R. 514, referred to.

APPEAL from a judgment of the Federal Court of Appeal[1], dismissing an appeal from a decision of Mahoney J. Appeal allowed.

J.P. Nelligan, Q.C., for the plaintiff appellant.

W.L. Nisbet, Q.C., for the defendant respondent.

The judgment of the Court was delivered by

DICKSON J.—Mr. Donald Kelso is a unilingual anglophone, who was employed in position TACQ-0274 as an Air Traffic Controller in the Montreal Area Control Centre. In May 1978, as part of its policy of bilingualism in the Quebec Region, the Ministry of Transport transferred Mr. Kelso under protest to the Transport Canada Training Institute in Cornwall, Ontario. Mr. Kelso seeks a declara-

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tion that he is entitled to remain in, or be reinstated to, his former position with full salary and benefits.

Although such engaging subjects as Canadian bilingualism, air safety, management rights and movement under protest, were canvassed in argument the issues before us are, in reality, very narrow. The first: does the exception created by s. 6(a) of the Public Service Official Languages Exclusion Order, SOR/77-886, a Regulation passed under the Public Service Employment Act, R.S.C. 1970, c. P-32, exclude the appellant, Mr. Kelso, from the general requirement of bilingualism created by the Public Service Employment Act? The second: was Mr. Kelso’s right to remain in, or be reinstated to, position TACQ-0274 in Montreal extinguished by his having accepted, under protest, an offer of employment with the Transport Canada Training Institute in Cornwall? The third: does the general power of the Treasury Board, as employer, to allocate and manage manpower resources override any right which Mr. Kelso may enjoy to remain in position TACQ-0274?

I

On June 3, 1969, Mr. Kelso was appointed by competition from within the Public Service to position TACQ-0274 at Montreal within the Ministry of Transport. Shortly thereafter, the Government of Canada affirmed the concept that every citizen ought to be able to deal with the Government in the official language of his choice. English and French would enjoy equal status and privilege as to their use in all federal institutions. Statutory expression of this policy is to be found in s. 2 of the Official Languages Act, R.S.C. 1970, c. 0-2.

The federal government, however, has not obdurately followed the ethic of bilingualism. It has recognized that even though a position in the Public Service may have been designated “bilingual”, in certain circumstances a unilingual incumbent would be able to continue in the position. The first recognition of this appears in a Joint Resolu-

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tion of the House of Commons and the Senate of Canada (Journals of the House of Commons of Canada, June 6, 1973, No. 97). The pertinent portion reads:

That this House,

(i) aware that, as provided in the Official Languages Act, the English and French languages possess and enjoy equality of status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada;

cognizant that it is the duty of departments and agencies of the Government of Canada to ensure, in accordance with that Act, that members of the public can obtain available services from and communicate with them in both official languages; while

recognizing that public servants should, as a general proposition and subject to the requirements of the Official Languages Act respecting the provision of services to the public, be able to carry out their duties in the Public Service of Canada in the official language of their choice;

Do hereby recognize and approve the following Principles for achieving the foregoing:

…

(6) that unilingual incumbents of bilingual positions may elect to become bilingual and undertake language training or transfer to another job having the same salary maximum, or, if they were to decline such a transfer, to remain in their positions even though the posts have been designated as bilingual; [Underlining added.]

Three options are envisaged in paragraph (6) of the Joint Resolution:

(i) become bilingual,

(ii) transfer to another job,

(iii) remain in present position.

Acceptance of unilingual incumbents in bilingual posts was later reflected in Treasury Board circular 1973-88 of June 29, 1973:

20. Unilingual incumbents of positions identified as bilingual will be given the opportunity of taking up to twelve months in language training to enable them to become bilingual. If they choose not to become bilingual, or are unsuccessful in their efforts to do so, they will be offered a transfer to a unilingual position which has a salary maximum at least within the range of one annual increment of the position previously occupied. If

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they decline a transfer, they will be entitled to remain in their position, even though the position has been designated as bilingual. Where, under the above circumstances, a unilingual employee occupies a position designated as bilingual, the Department concerned will be required to make alternative administrative arrangements to meet the language requirements of the position. The Treasury Board will provide the necessary funds and man-years to give effect to these arrangements. [Underlining added.]

This policy was given statutory recognition in the Public Service Employment Act. Section 20 of the Act provides that employees appointed to the Public Service shall be qualified in English and French “to the extent that the Commission deems necessary in order that… effective service can be provided to the public”. An exception to the general requirement of bilingualism is created by the Public Service Official Languages Exclusion Order. Section 6(a) of the Exclusion Order exempts incumbents of positions in the Public Service from any requirement of bilingualism. It states:

6. The following persons are hereby excluded from the operation of section 20 of the Act, in so far as the knowledge and use of both official languages is required for a bilingual position, for the period during which he occupies that bilingual position, namely,

(a) any person who occupies a position, to which he was appointed for an indeterminate period, that he occupied at the time it was identified by the deputy head as requiring the knowledge and use of both official languages;

…

Implicit in all of this, it seems to me, is the assurance to the unilingual incumbent that he will not be dismissed or adversely affected on the basis of language ability, or perhaps one should say, language inability.

II

Turning then to the position of air traffic controllers and, particularly, Mr. Kelso. In the early 1970’s, the Ministry of Transport began study of the feasibility of introducing bilingual air traffic control at airports in the Province of Quebec. In 1974, the Ministry authorized the use of the French language, in addition to English, in the

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provision of airport control service at five Quebec airports. Following assessment of this pilot project, the Minister of Transport announced in December of 1975 that the Government would begin phasing in bilingual air traffic control throughout the province. To implement this policy, controllers throughout Quebec would have to be fluently bilingual, at least in terms of work‑related terminology.

Such a requirement obviously clashed with the principle that incumbents in the Public Service would be entitled to remain in their positions even after the positions had been designated bilingual. One suggested resolution of the conflict was the provision of a bilingual “double” for each unilingual controller who refused a transfer or was unwilling or unable to meet the language requirements. This alternative was unacceptable to the Ministry, which felt that “their [i.e.—unilingual controllers] continued presence would constitute a threat to the safety and security provisions for which Transport is responsible under the Aeronautics Act” (Transport Canada Submission to Treasury Board, March 24, 1976). Accordingly, the Ministry requested Treasury Board to approve a special “relocation package” which would encourage unilingual controllers to transfer voluntarily out of Quebec. Treasury Board approved this package on April 8, 1976.

Mr. Kelso refused the opportunity of language training. His experience in growing up in Quebec and one month of language training left him with the opinion that he would never be able to attain the necessary proficiency in French.

In December 1975, controllers at the Montreal Area Control Centre were notified that air traffic control services in the Quebec Region would, in the future, be provided in French and English. These controllers were offered the opportunity to apply for transfers out of Quebec Region with special benefits. Employees were permitted to review both their decisions to transfer and the

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destinations of their transfers once the applications had been made.

In February of 1976, Mr. Kelso applied for transfer to Halifax. On March 31, 1976, his position was declared bilingual. He was thereafter, a unilingual incumbent of a bilingual position. In July of that year, he changed his requested destination to Cornwall.

Nothing came of the application for transfer until February of 1978, at which time Mr. Kelso was informed that the date of his move would be May 1, 1978. He then had a change of heart. In April 1978, he informed the Ministry that he was withdrawing his request for transfer and asserting his right to remain in his position in Montreal.

Officials at the Ministry did not take kindly to this. Mr. Kelso’s superiors told him he had two options only: he could accept the transfer to Cornwall, or he would be released for incapacity under s. 31 of the Public Service Employment Act; he was given two days within which to decide. He decided to accept the offer of employment in Cornwall but under protest, stating that he had been required to accept the transfer to protect his employment in the Public Service.

Mr. Kelso shortly thereafter commenced an action in the Federal Court claiming he was entitled to be reinstated in his position in the Montreal region. Mr. Justice Mahoney of the Trial Division refused relief. Mahoney J. accepted the argument that the transfer was contrary to the Joint Resolution of Parliament, but held that a Resolution of the House of Commons is not legally binding. He also found it would have been unlawful for the Crown to have dismissed Kelso for incapacity in light of s. 6(a) of the Exclusion Order. He found that Mr. Kelso did not freely and willingly accept the transfer to Cornwall and that the pressure on him to do so was “real”. He went on to conclude, however, that when Mr. Kelso accepted the transfer to Cornwall his right to remain in his position in Montreal was extinguished: “…a judgment will not issue declaring a past right that has been utterly extinguished”. He held that a right to be reinstated did not flow from the fact that Mr. Kelso could successfully

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have resisted his removal for incapacity or from the fact that Mr. Kelso gave up the position under threat of an illegal removal and under protest.

The Federal Court of Appeal dismissed the appeal from this judgment. All three judges agreed that whatever right Mr. Kelso may have had to remain in the position in Montreal was extinguished when he accepted the position in Cornwall. The Chief Justice, speaking for himself and Kerr J., held that Mr. Kelso was entitled to a declaration only if the transfer to Cornwall had been a “nullity”. The reason for introducing the notion of “nullity” is not clear, though it may flow from the precise wording of s. 6(a) of the Exclusion Order which states that an incumbent is entitled to be exempted from the requirements of bilingualism only “for the period during which he occupies that bilingual position”. The Court seems to have assumed that Mr. Kelso would be entitled to a declaration only if he still occupied the position. If it could be determined that he had left the position, then he was no longer entitled to the protection of the Exclusion Order. If, however, the transfer was a “nullity”, then it could be said he had never left the position. Jackett C.J. decided that the consent obtained to the transfer was not vitiated by duress and accordingly denied the claim for relief. He dealt with the matter in these terms:

On the other hand, there is nothing to indicate that the officers concerned did not act under a bona fide belief that, as the appellant himself alleges in his statement of claim, “position TACQ-0274… was designated bilingual” and he had become “a unilingual incumbent of a bilingual position”; and, assuming that that was so, it is difficult to see in what way the “pressure” exerted was improper. In any event, even if there had been a lack of bona fides on their part in the action that they took, I am not convinced that the result would be that his consent to the transfer was a nullity. If it was not a nullity, the appellant is not, in my view, entitled to the first declaration that he seeks.

III

Before this Court, counsel for the Crown argued but faintly the submissions which found favour with the Federal Court of Appeal. Instead, counsel advanced a separate line of argument based on the

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overriding power of the Crown to allocate and manage resources in the Public Service. These “management rights” are explicitly recognized by the Financial Administration Act, R.S.C. 1970, c. F-10, s. 7(1), which provides, inter alia, that the Treasury Board may,

(a) determine the manpower requirements of the public service and provide for the allocation and effective utilization of manpower resources within the public service;

…

(c) provide for the classification of positions and employees in the public service;

The Crown argues that the effect of s. 6(a) of the Exclusion Order is merely to exempt the employees to whom it is applicable from having to meet any language qualifications the Public Service Commission deems necessary; the section does not have the effect of vesting in the appellant a legal right in position TACQ-0274. Nor does it constitute a bar to the exercise by the Crown as represented by the Treasury Board (or by the Deputy Minister of Transport as the delegate of that Board) of its statutory authority to provide for the allocation and effective utilization of manpower resources within the Public Service and of the statutory authority of the Minister of Transport to manage and direct the Department of Transport. As broad propositions, there can be little debate as to most of these submissions. I agree that Mr. Kelso does not have any vested right in, or long-term tenure to, position TACQ-0274; there is no vested right in any particular position in the Public Service; the tenure is in the Service rather than to a position within that Service. No one is challenging the general right of the Government to allocate resources and manpower as it sees fit. But this right is not unlimited. It must be exercised according to law. The government’s right to allocate resources cannot override a statute such as the Canadian Human Rights Act, S.C. 1976-77, c. 33, or a regulation such as the Exclusion Order. In my view, the meaning and intent of this Order is such as to entitle an employee to remain in a position even though he does not meet the language requirements of the position.

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Although the Joint Resolution of the House of Commons and the Senate of Canada passed in June 1973 may not be legally binding, in the sense of creating enforceable legal rights and obligations, it is, nonetheless, indicative of legislative intention. The resolution explicitly provided that unilingual incumbents of bilingual positions are entitled to “remain in their positions even though the posts have been designated as bilingual”. Treasury Board Circular 1973-88 reinforces this view.

In short, I conclude that the Exclusion Order prohibits the government from “separating” an incumbent from his position on the sole basis of language. This includes an involuntary transfer as well as dismissal for incapacity under s. 31 of the Public Service Employment Act. The first submission of the Crown fails.

IV

The Crown relied, in the alternative, on the contentions that found favour in the courts below. This submission, not pleaded, was based on the proposition that Mr. Kelso had a “past right to remain” in his position in Montreal but that this right had been utterly extinguished when he accepted the transfer to Cornwall, notwithstanding that his acceptance was under protest and a threat of illegal removal from that position. The issue, in the Crown respondent’s submission, is now ‘dead’ and cannot be the subject of a declaratory judgment.

The Court of Appeal accepted this argument. Jackett C.J. assumed that once the government succeeded in “separating” the incumbent from his position his rights were extinguished. The Court accordingly directed its mind to the question of whether the appellant in fact had been separated from his position. Jackett C.J. concluded that since the consent had not been a “nullity”, Mr. Kelso in fact had been separated from his position and his “right to remain” had ended.

With respect, I do not think the issue is whether the appellant in fact had been separated from his position, but whether he has been separated de jure. The question is whether or not the Crown

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respondent had the right to transfer Mr. Kelso out of his position on the sole basis of his language ability. I have already concluded that the Crown possessed no such right.

A contrary conclusion would lead to a curious result. At common law, employees were under a duty to obey all reasonable orders. (See Pepper v. Webb)[2]. This rule has been preserved in the collective bargaining context, where the employee must “obey now, grieve later” except where the order involves the performance of an illegal act or will endanger the safety of the worker. (See Brown and Beatty, Canadian Labour Arbitration (1977) at p. 343, and cases cited therein.) Thus Mr. Kelso was under a duty to obey the order of the employer to accept the transfer to Cornwall. If Mr. Kelso had refused to accept the transfer, this might, in and of itself, have exposed him to disciplinary action. I cannot accept the submission that Mr. Kelso’s rights were “extinguished” by the acceptance “under protest” of the transfer to Cornwall. It would be intolerable if employees were forced to risk disciplinary action in order to preserve legal rights. Rights are not extinguished by obeying the employer’s instruction while at the same time contesting his decision. This maintains the employee in employment and mitigates potential losses if the decision should prove to be wrong. His rights are not extinguished because he chooses not to accept the risk of dismissal.

In the Court of Appeal the question of the bona fides of the officers and the impropriety of the pressure was raised. With respect, these considerations are irrelevant. In cases where an official lacks the legal authority to do an act it is no defence to a claim against him that he honestly believed he had the requisite authority. The pressure was “improper” because the officials had no legal authority to dismiss Mr. Kelso for failing to learn French, his rights being protected by regulation.

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V

The final submission of the Crown is that a declaration should not be issued because it cannot have any practical effect. It is argued that the Public Service Commission has the exclusive right and authority to make appointments to the Public Service. Any declaration by the Court could not have the effect of precluding the exercise of such authority by the Commission, thereby depriving the declaration of any possible practical result.

It is quite correct to state that the Court cannot actually appoint Mr. Kelso to the Public Service. The administrative act of appointment must be performed by the Commission. But the Court is entitled to ‘declare’ the respective legal rights of the appellant and the respondent.

The Public Service Commission is not above the law of the land. If it breaches a contract, or acts contrary to statute, the courts are entitled to so declare.

I would allow the appeal, set aside the judgment of the Federal Court of Appeal and declare that the appellant is entitled to remain in, or be reinstated to, position TACQ-0274 in the Public Service of Canada. I would deny the appellant the further relief sought, namely, a declaration that he is entitled to be reimbursed for all extra costs incurred by him as a result of commuting to Cornwall, Ontario, from his home in Hudson Heights, Quebec. The appellant is entitled to costs in all courts.

Appeal allowed with costs.

Solicitors for the plaintiff appellant: Nelligan/Power, Ottawa.

Solicitor for the defendant respondent: Roger Tassé, Ottawa.