Emms

Parties/Partis: John A. Emms v. Her Majesty the Queen, represented by the Deputy Minister of Indian Affairs and Northern Development and the Public Service Commission

Court # Cour: A-60-76

Judgment/Jugement Date: 1977-07-15

REASONS FOR JUDGMENT

RYAN, J.:

Mr. Emms, the appellant, sued in the Trial Division for a declaration that his employer lacked authority to terminate his employment under subsection 28(3) of the Public Service Employment Act (see note 1 below) and for a declaration that the purported termination was null and void. He also claimed a sum of money sufficient to compensate him for the salary and other benefits he would have received had his employment not been terminated. Mr. Emms was successful in obtaining the declarations he sought and was awarded the sum of $219.76 and his costs of the action.

[note 1: R.S.C. 1970, c. P-32]

Mr. Emms was, however, dissatisfied with the sum of money he was awarded and brought this appeal in respect of the amount. There was a cross-appeal, the cross-appeal before us, seeking reversal of the judgment of the Trial Division and dismissal of Mr. Emms' action.

Mr. Emms was employed on April 1, 1970, as a Field Officer, WP-2, in the Department of Indian Affairs and Northern Development. He was stationed at Stony Rapids, Saskatchewan. Mr. Emms was considered to be on probation for a period of one year. Section 28 of the Public Service Employment Act deals with probation. It provides:

28. (1) An employee shall be considered to be on probation from the date of his appointment until the end of such period as the Commission may establish for any employee or class of employees.

(2) Where an appointment is made from within the Public Service, the deputy head may, if he considers it appropriate in any case, reduce or waive the probationary period.

(3) The deputy head may, at any time during the probationary period, give notice to the employee and to the Commission that he intends to reject the employee for cause at the end of such notice period as the Commission may establish for any employee or class of employees and, unless the Commission appoints the employee to another position in the Public Service before the end of the notice period applicable in the case of the employee, he ceases to be an employee at the end of that period.

(4) Where a deputy head gives notice that he intends to reject an employee for cause pursuant to subsection (3), he shall furnish to the Commission his reasons therefor.

(5) Notwithstanding anything in this Act, a person who ceases to be an employee pursuant to subsection (3)

(a) shall, if the appointment held by him was made from within the Public Service, and

(b) may, in any other case,

be placed by the Commission on such eligible list and in such place thereon as in the opinion of the Commission is commensurate with his qualifications.

Sections 30 and 31 of the Public Service Employment Regulations (see note 2 below) also relate to probation. They provide:

[note 2: SOR/67 - 129]

30. (1) The probationary period referred to in subsection (1) of section 28 of the Act for an employee who comes within a class or group mentioned in Column I of Schedule A is the period set out opposite that class or group in Column II of the said Schedule.

(2) The deputy head may extend the probationary period of an employee but the period of extension shall not exceed the period for that employee determined pursuant to subsection (1).

(3) Where the probationary period of an employee is extended, the deputy head shall forthwith advise the employee and the Commission thereof in writing.

31. The notice period referred to in subsection (3) of section 28 of the Act applicable in the case of an employee who comes within a class or group mentioned in Column I of Schedule A is the period set out opposite that class or group in Column III of the said Schedule, calculated from the day on which the deputy head gives the notice to the employee.

On February 26, 1971, Mr. C.E. McKee, the departmental District Supervisor, wrote to Mr. Emms suggesting that he might arrange to visit the Prince Albert Office during the third week of March so that they might review the evaluation of Mr. Emms' performance, the evaluation Mr. McKee was required to submit before the end of the probationary period. Mr. McKee referred in his letter to problems that Mr. Emms had encountered in carrying out his duties as Field Officer.

An Employee Evaluation Report, dated March 26, 1971, was signed both by Mr. Emms and Mr. McKee. It contained the notation: "I have read and discussed this report." In the report there was this recommendation:

Recommend that Mr. Emms be placed on a further six months probation to attempt to resolve his communication problem. It is also recommended that Mr. Emms be considered for transfer to another area and given opportunity to work in the development field.

The learned trial judge referred in his Reasons to a meeting that Mr. Emms had with Mr. McKee and Mr. Clark, Mr. McKee's superior, in Regina, on March 26, 1971. The trial judge noted that Mr. Emms had not been performing his duties to the satisfaction of his superiors. At the meeting in Regina, the difficulties were discussed. I now quote from the trial judge's Reasons:

...The plaintiff testified that he left the meeting under the impression that the difficulties were resolved. The manner in which those difficulties were resolved was not disclosed with certainty or exactitude but the impression sought to be conveyed by the plaintiff in his testimony was to the effect that the extended probationary period of six months within which he was to satisfy his superiors of his ability to satisfactorily discharge his duties was waived. I have grave doubt if that impression was justified.

By letter dated July 8, 1971 (Exhibit P-4), which is beyond the initial probationary period but within the further six-month period, C.E. McKee again referred to the manner in which the plaintiff performed his duties and as were discussed at the meeting between them on March 26, 1971, and concluded by stating:

In the circumstances, I intend to recommend to the Regional Director your rejection on probation; however, before doing so, I invite your explanation for difficulties which have developed and your inability to perform satisfactorily.

The plaintiff replied by letter dated July 19, 1971 (Exhibit P-5) and explained the difficulties which he had encountered. He concluded his reply by requesting to be advised of the steps to be taken to review, through the staff union, his federal government service that is covered by pension. The tenor of that letter, after pointing out that he had exceptional ability to communicate with Indian people, is a tacit acceptance of his inevitable dismissal and in this letter the plaintiff does not dispute the statement in Mr. McKee's letter of July 8, that he was "on probation" at that time.

In paragraph 3 of the statement of claim, it is alleged:

3. On or about the 31st day of March, 1971, the plaintiff was advised verbally by his employer that the probationary period referred to in paragraph 2 was extended for a period of six months.

(The probationary period referred to in paragraph 2 is that from April 1, 1970, until March 31, 1971.) This allegation in the statement of claim the plaintiff denied in his testimony.

Because of the view I have reached it is not necessary for me to come to a conclusion that the plaintiff was advised orally that his probation had been extended for a period of six months from March 31, 1971, until September 30, 1971, but if it were incumbent upon me to do so, I would find that the plaintiff knew or ought to have known by the oral communications to him and written statements that was the fact.

I would also quote this passage:

There does not seem to me to have been any doubt that the plaintiff's superiors were not satisfied with the plaintiff's performance of his duties during his initial 12-month probationary period and that his rejection on probation was seriously considered during that period. Naturally the plaintiff both disputed and sought to explain the reservations entertained by his superiors as to his capacity and competence. It is equally clear that the solution to the difficulties encountered was to extend the plaintiff's probationary period for a further six months.

The recommendation to that effect was contained in the Evaluation Report concerning the plaintiff dated March 25, 1971. That report was signed by the plaintiff on March 26, 1971, and was the subject matter of discussion between the plaintiff and his superiors. The plaintiff's version of that discussion appears to have been that the difficulties were resolved, but unfortunately they were not, and there does not appear to have been a sound foundation for the plaintiff's assumption to the contrary. There is no doubt in my mind that the plaintiff knew full well on March 26, 1971 it was intended that his probationary period was to be extended for an additional period of six months. However, there is equally no doubt in my mind that the plaintiff was not so advised in writing forthwith by the deputy head or a responsible officer of the Department to whom that authority was delegated by the deputy head that his probationary period had been extended by six months.

The learned trial judge also said:

As I have said, I am convinced that the plaintiff knew he was on probation for an extended period of six months from March 31, 1971...

An Employee Evaluation Report, the purpose of which was indicated as being a probation review, was prepared under date of August 18, 1971, and signed on August 19, 1971. Under the heading "Recommendations" was the entry: "Rejected on probation effective September 24, 1971." Mr. Emms signed the Report, but indicated in writing, on the Report, that he contested the decision "...on the grounds stated."

By letter dated August 18, 1971, Mr. McKee informed Mr. Emms that he was rejected for further service in the Department of Indian Affairs and Northern Development effective September 24, 1971.

Mr. Emms then submitted a grievance in which he protested "...the Employee Evaluation Report dated August 19, 1971 as an unfair, incomplete and basically untrue document." He stated:

I request an impartial investigation of the matter with a view to having the situation corrected and the true reasons for my dismissal stated. I also request a review of my previous valid pension service time with Indian Affairs and an explanation of how so many supervisors granted salary increments and promotions if the above mentioned report is true. I do not contest the dismissal. I do contest the evaluation.

His reference to previous pension service and promotions appears to relate to a period he had served in the Public Service some time before his appointment in April 1970.

His grievance did not succeed.

Shortly after his rejection, which was effective September 24, 1971, Mr. Emms obtained employment with a department of the Saskatchewan government until November 15, 1971. He obtained employment with another Saskatchewan government department on a temporary basis from November 15, 1971 to January 13, 1973. He secured further employment in the Saskatchewan government service in February 1973, first as a temporary, and then as a permanent employee.

It is important to have in mind the issue on which the case went to trial. I therefore quote from the amended Statement of Claim and from the Statement of Defence. Paragraphs 2 to 6 of the Statement of Claim read:

2. The Plaintiff was employed as a field officer with the Department of Indian Affairs and Northern Development for the district of Prince Albert in the Province of Saskatchewan. The Plaintiff was considered to be on probation from the 1st day of April 1970 until the 31st day of March 1971.

3. On or about the 31st day of March 1971, the Plaintiff was advised verbally by his employer that the probationary period referred to in paragraph 2 was extended for a period of six months.

4. The Plaintiff did not receive a notice in writing of the extension of his probationary period as required by section 30(3) of the Public Service Employment Regulations.

5. By letter dated the 18th day of August 1971 addressed to the Plaintiff, the Plaintiff's employer purported to terminate the services of the Plaintiff as a probationary employee to be effective on the 24th day of September 1971.

6. The Plaintiff says that as a result of the employer's failure to comply with the provisions of section 30(3) of the Public Service Employment Regulations, the employer has no authority to terminate his employment as if he were a probationary employee.

Paragraphs 2 to 5 of the Statement of Defence read:

The Deputy Attorney General of Canada on behalf of the defendants, in answer to the Statement of Claim herein, says as follows:

* * * * *

2. With reference to paragraphs 3 and 4 of the Statement of Claim, he does not admit the allegations contained therein and says that the plaintiff received notice in writing of the extension of the probationary period referred to in paragraph 2 of the Statement of Claim.

3. With reference to paragraph 5 of the Statement of Claim, he admits that by letter dated August 18, 1971 from C.E. McKee, District Supervisor, Prince Albert District, Department of Indian Affairs and Northern Development, to the plaintiff, he was advised that he was rejected for further service in the Department of Indian Affairs and Northern Development effective September 24, 1971.

4. He does not admit the allegations contained in paragraph 6 of the Statement of Claim and says that the employer complied with the provisions of section 30(3) of the Public Service Employment Regulations, and had the authority to terminate the plaintiff's employment as a probationary employee.

5. He therefore says that the plaintiff is not entitled to the relief sought in subparagraphs (a), (b) and (c) of paragraph 6 of the Statement of Claim.

The appellant, the plaintiff below, thus did not place in issue that a decision to extend the probationary period had been taken. The issue of fact was whether the plaintiff had received a notice in writing of the extension of his probationary period as required by subsection 30(3) of the Public Service Employment Regulations. The issue of law was whether, if the facts were found in the plaintiff's favour, the probationary period had been extended. If it had been, his rejection was well founded in law. If it had not, his rejection, it was submitted, was a nullity.

The learned trial judge construed "...subsection (3) of section 30 of the Public Service Employment Regulations as being mandatory. That being so, any action thereunder which does not strictly comply with the express provisions of the regulation results in the purported action being a nullity."

He stated:

...What is contemplated by the Regulations is a clear and unequivocal notice in writing specifically directed to the plaintiff stating that his probationary period has been extended for the appropriate time also to be stated...

He held that Mr. Emms had not been given the required notice in writing. He said:

The evaluation report dated March 25, 1971, is not directed to the plaintiff even though he saw and signed it. The subsequent correspondence from Mr. McKee to the plaintiff obliquely refers to the plaintiff being on probation...

He also said of the evaluation report:

It is significant that this evaluation report is prepared for internal departmental administration and is indicated to be an annual review rather than a probation review, that the extension of the probationary period is a recommendation by C.E. McKee directed to Mr. McKee's superior who noted the recommendations of Mr. McKee.

The critical question before us was stated in argument as being whether subsection 30(3) of the Regulations is directory or imperative. This is, I agree, the question, if the significance of the distinction is what I understand it to be (see note 3 below). Subsection 30(3) is, of course, mandatory in the sense that it imposes an obligation on the deputy head of the Department, an obligation which, if not observed, may have legal consequences. But that, for present purposes, is not in my view the significance of the distinction between "imperative" and "directory". The question is whether performance of the duty imposed by the subsection is an essential element in the exercise of the power to extend. Would failure to perform the duty render the extension a nullity? If so, the subsection is imperative in the sense in which the word has been used for the purpose of the distinction between "imperative" and "directory".

[note 3: see Montreal Street Railway Company v. Normandin [1917] A.C. 170]

That a section in a statute or regulation may be mandatory, but not such as to render a decision to which it is related a nullity if a duty imposed by it is not performed, appears in a passage from the judgment of Mr. Justice Winn in Brayhead (Ascot) Ltd. v. Berkshire County Council (see note 4 below) at pages 313 and 314. Mr. Justice Winn was speaking with reference to an article in a Town and Country Planning General Development Order. He said:

[note 4: [1964] 2 Q.B. 303; see also Howard v. Secretary of State for the Environment, [1975] 1 Q.B. 235.]

As a matter of construction it seems clear that article 5(9)(a) requires (1) that the notice of decision be in writing; (2) the reasons be stated in writing; (3) that the notice be accompanied by a notification in the prescribed form; these requirements can be satisfied by a single document or by three physically separate documents.

Should requirement (1) not be complied with, disputes might well arise as to the calculation of the time limit for appeal to the Minister fixed by section 16(1) of the Act; should requirement (3) not be satisfied an applicant might be left in ignorance of his rights. Each of those requirements is therefore essential to the statutory purposes. The interposition of requirement (2) militates strongly against any view that it can be regarded as merely directory; all three requirements appear to be mandatory. It does not follow necessarily that non-compliance with any one of them will render the notice null in law, still less that the decision of which notice purports to be given is itself of no legal effect. The court is not concerned in the instant case with any non-compliance with requirement (1) or requirement (3): the effect of non-compliance with requirement (2) must be decided.

No doubt such a non-compliance may be and often will be inconvenient for an applicant; he may find it necessary to give notice of appeal to the Minister before he knows the strength or weakness of the case which he will have to meet. However, he could undoubtedly demand, as of right, a statement of reasons and by threat or effect of an order of mandamus secure them, and it would be strange if the Minister did not adjourn his appeal until the reasons had been delivered and considered. In the sense that there is a duty to state the reason in writing requirement (2) is undoubtedly mandatory. Comparison may be made of the provisions of section 12 of the Tribunal and Enquiries Act, 1958, requiring that reasons, if requested, be stated, in general, for a decision: a non-compliance with those provisions would certainly found a mandamus.

It is another matter whether the notice of condition in the present case, or such a tribunal decision is rendered null by a failure to state reasons in writing: notwithstanding the obiter dicta of Salmon J. this extreme result is not required for the effective achievement of the purposes of the statute nor intended, as a matter of construction, by Parliament.

The sequence and the wording of subsections (2) and (3) of section 30 of the Regulations are significant. Subsection (2) vests in the deputy head power to extend the probationary period. That there was a decision to extend is not in issue in this case. And I would also refer once again to the trial judge's statement that he was convinced Mr. Emms knew he was on probation for an extended period of six months. This statement was made after the trial judge had said that he had no doubt Mr. Emms knew full well on March 26, 1971 it was intended that his probationary period was to be extended; and also after he had stated that, if it were incumbent on him so to find, he would find that Mr. Emms knew or ought to have known his probation had been extended for a period of six months from March 31, 1971. At the very least then, Mr. Emms knew of the intention to extend the probationary period and ought to have known that it had been extended.

As I read subsection (3), it imposes a duty to advise the employee in writing forthwith after the probationary period is extended. It is not necessary to define "forthwith" precisely. It is enough that the word contemplates a possible interval between the extension and the giving of advice of it to the employee. Communication in the manner specified is not an essential part or condition of the extension itself. Extension precedes the duty to advise.

I have also considered whether the duty to give written advice forthwith is a condition subsequent to the extension in the sense that failure to perform it would operate to nullify the extension when the permitted interval expires. I do not construe the subsection as intending to attach so drastic a consequence to a failure to comply with the mandate of the provision. It is, it seems to me, of some value to note that an extension of a probationary period may well be to the mutual advantage of the employer and the employee. Such an extension may afford the employer additional time in which to assess an employee whose performance has not been altogether satisfactory, and the employee a further opportunity to prove himself rather than be rejected. It would be as well not to encumber the power to extend with the perils of literal compliance, and I do not find an intent so to encumber it.

It is, of course, desirable that an employee should know as soon as possible that his probation has been extended and that he has not become a permanent employee. He might, for example, in the circumstances wish to make other plans for his future. He is not, however, entirely without protection. The duty imposed on the deputy head to give advice forthwith in writing is not an empty one, even if it is not a condition precedent or subsequent to the extension. The deputy head is under a legal obligation which he would certainly be unwise to take lightly. And, although it is not necessary in this case to decide the point, it may be that an employee, damaged by breach of the duty, would have a remedy for his consequent loss.

My conclusion is that the probationary period was extended and that Mr. Emms was rejected within the extended period. I would allow the cross-appeal. I would reverse the judgment of the Trial Division and substitute judgment dismissing the action.

As a consequence of this disposition of the cross-appeal, I would dismiss the appeal.

The respondents are entitled to costs here and below, if demanded.

William F. Ryan, J.

I agree - John J. Urie, J.

I agree - R. Kerr