Date:
20071024
Docket: A-46-07
Citation: 2007 FCA 332
CORAM: LINDEN J.A.
NADON
J.A.
PELLETIER J.A.
BETWEEN:
MICHAEL
KINDRATSKY
Appellant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
Heard at Calgary,
Alberta, on October 22,
2007.
Judgment delivered from the Bench at Calgary, Alberta, on October 22, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: NADON
J.A.
Date:
20071024
Docket: A-46-07
Citation: 2007
FCA 332
CORAM: LINDEN J.A.
NADON J.A.
PELLETIER
J.A.
BETWEEN:
MICHAEL
KINDRATSKY
Appellant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Calgary, Alberta, on October 22,
2007)
NADON J.A.:
[1]
We
are all agreed, on the authority of Re. Peralta et al. and the Queen in
Right of Ontario et al [1985] 16 D.L.R. (4th) 259, Ontario Court
of Appeal, that Mr. Justice Hughes of the Federal Court did not err in
determining that the Stoppage of Pay and Allowances Regulations, S0R/84-886,
as amended, were not ultra vires.
[2]
More
particularly, we note that ss. 22(3) of the Royal Canadian Mounted Police
Act, (the “Act”) R.S. c. R. 9 empowers Treasury Board to make regulations
“respecting the stoppage of pay and allowances of members who are suspended
from duty”.
[3]
We
are satisfied that in enacting s. 2 of the Regulations and in authorizing the
Commissioner to order the stoppage of pay and allowances of a member suspended
from duty, Treasury Board fully complied with the authority given to it by the
legislation. There can be no doubt that section 2 is a regulation “respecting
the stoppage of pay and allowances”.
[4]
By
the use of the word “respecting” it is our view that Parliament did not intend
for Treasury Board itself to set out or specify those particular instances
which would justify a stoppage of pay and allowances. Had that been
Parliament’s intention, more specific language would have been used such as stipulating
that Treasury Board had the power to make regulations “prescribing” or “determining”
when a stoppage of pay and allowances would be justified. However, it did not.
[5]
To
paraphrase the words of MacKinnon J.A., found at pages 272 and 273 of Re. Peralta,
we are satisfied that subdelegation to the Commissioner was intended by
necessary implication, and that, as a result, the prima facie rule of
construction delegatus non potest delegare must give way to the intent
of the legislation.
[6]
We
also see no merit in the Appellant’s argument that the Regulations are invalid
because s. 2 thereof refers, not to section 12.1 of the Act pursuant to which the
Commissioner may suspend a member from duty, but to a non-existent section
13.1. We are satisfied that the reference to a suspension from duty in section
2 of the Regulations was clearly meant as a reference to s. 12.1 of the Act.
Thus, there can be no doubt as to Parliament’s intention.
[7]
For
these reasons, the appeal will be dismissed with costs.
“M. Nadon”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-46-07
(Appeal from the Order of the Honourable
Mr. Justice Hughes dated December 18, 2006, Docket No.: T-1785-05)
STYLE OF CAUSE: MICHAEL
KINDRATSKY
Appellant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: October 22, 2007
REASONS FOR JUDGMENT OF THE COURT BY: LINDEN J.A.
NADON
J.A.
PELLETIER
J.A.
DELIVERED FROM THE BENCH BY: NADON J.A.
APPEARANCES:
|
Mr. D. Robb Beeman
Ms. Caireen E. Hanert
|
FOR THE APPELLANT
|
|
Mr. David J.
Stam
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Heenan Blaikie
Calgary, Alberta
|
FOR THE
APPELLANT
|
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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