Date: 20001117
Docket: T-1883-95
BETWEEN:
KIM LEE GILMOUR
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT
GIBSON J.:
INTRODUCTION
[1] By letter dated the 30th of August, 19931, the Deputy Director, Operations, of the Canadian Security Intelligence Service (the "Service") advised the plaintiff:
| Since you did not report to work at the Counter Intelligence Branch (Headquarters) on the date required (93-08-23), and since the one week grace period has expired without your reporting to Headquarters, you are now considered to have abandoned your position with the Canadian Security Intelligence Service. Accordingly, your employment with CSIS ends as of 93-08-30. |
The plaintiff, after lengthy negotiations with the Service, had effectively refused to comply with an order to leave her home and employment with the Service in British Columbia and report for employment with the Service at its headquarters in the National Capital Region.
[2] The plaintiff grieved the foregoing notice of termination by reason of abandonment as well as the decision requiring her to relocate from Vancouver to the headquarters of the Service. Her grievances were unsuccessful at all three levels. She sought adjudication before the Public Service Staff Relations Board. The Board rejected her application for want of jurisdiction. The decision of the Board was the subject of an application for judicial review in this Court which was subsequently abandoned. This action followed. The trial of the action took place over the course of three (3) days at Vancouver from September 19 to 21 inclusive.
BACKGROUND
[3] The Canadian Security Intelligence Service was established by the Canadian Security Intelligence Service Act2 (the "Act") which received royal assent on the 28th of June, 1984. The portions of the Act establishing the Service and providing for its management, duties and functions were proclaimed in force the 16th of July, 1984. The relevant provisions of the Act relating to its management are subsections 6(1) and 8(1) to (3). Those subsections read as follows:
6. (1) The Director, under the direction of the Minister, has the control and management of the Service and all matters connected therewith.
...
6. (1) Sous la direction du ministre, le directeur est chargé de la gestion du Service et de tout ce qui s'y rattache.
...
8. (1) Notwithstanding the Financial Administration Act and the Public Service Employment Act, the Director has exclusive authority to appoint employees and, in relation to the personnel management of employees, other than persons attached or seconded to the Service as employees,
(a) to provide for the terms and conditions of their employment; and
(b) subject to the regulations,
(i) to exercise the powers and perform the duties and functions of the Treasury Board relating to personnel management under the Financial Administration Act, and
(ii) to exercise the powers and perform the duties and functions assigned to the Public Service Commission by or pursuant to the Public Service Employment Act.
(2) Notwithstanding the Public Service Staff Relations Act but subject to subsection (3) and the regulations, the Director may establish procedures respecting the conduct and discipline of, and the presentation, consideration and adjudication of grievances in relation to, employees, other than persons attached or seconded to the Service as employees.
(3) When a grievance is referred to adjudication, the adjudication shall not be heard or determined by any person, other than a full-time member of the Public Service Staff Relations Board established under section 11 of the Public Service Staff Relations Act.
8. (1) Par dérogation à la Loi sur la gestion des finances publiques et à la Loi sur l'emploi dans la fonction publique, le directeur a le pouvoir exclusif de nommer les employés et, en matière de gestion du personnel du Service, à l'exception des personnes affectées au Service ou détachées auprès de lui à titre d'employé_:
a) de déterminer leurs conditions d'emploi;
b) sous réserve des règlements_:
(i) d'exercer les pouvoirs et fonctions conférés au Conseil du Trésor en vertu de la Loi sur la gestion des finances publiques en cette matière,
(ii) d'exercer les pouvoirs et fonctions conférés à la Commission de la fonction publique en vertu de la Loi sur l'emploi dans la fonction publique.
(2) Par dérogation à la Loi sur les relations de travail dans la fonction publique mais sous réserve du paragraphe (3) et des règlements, le directeur peut établir des règles de procédure concernant la conduite et la discipline des employés, à l'exception des personnes affectées au Service ou détachées auprès de lui à titre d'employé, la présentation par les employés de leurs griefs, l'étude de ces griefs et leur renvoi à l'arbitrage.
(3) Les griefs renvoyés à l'arbitrage ne peuvent être entendus et tranchés que par un membre à temps plein de la Commission des relations de travail dans la fonction publique constituée par l'article 11 de la Loi sur les relations de travail dans la fonction publique.
[4] The relevant portion of the Service's mandate reads as follows:
12. The Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada.
12. Le Service recueille, au moyen d'enquêtes ou autrement, dans la mesure strictement nécessaire, et analyse et conserve les informations et renseignements sur les activités don't il existe des motifs raisonnables de soupçonner qu'elles constituent des menaces envers la sécurité du Canada; il en fait rapport au gouvernement du Canada et le conseille à cet égard.
"Threats to the Security of Canada" is a term defined in section 2 of the Act that has been the subject of a substantial amount of debate.
[5] The mission of the Service, though technically not before the Court as an exhibit, is briefly stated in a document that was before the Court as part of the "plaintiff's book of documents"3. It reads as follows:
| CSIS, as a unique component of the Government of Canada, contributes to the protection of Canada's interests and the safety of its people through the information it gathers and analyses and the advice it provides. |
[6] The passage of the Canadian Security Intelligence Service Act through Parliament attracted substantial attention and, more particularly, interest from persons interested in pursuing a career with the Service. The plaintiff was among those persons. She wrote to appropriate authorities to express her interest in employment with the Service, enclosing her resume, in the spring of 1984.
THE PLAINTIFF'S CAREER WITH THE SERVICE
| (1) Employment Interviews and Training |
[7] The plaintiff was interviewed regarding employment with the Service in the spring of 1985. On the 13th of March, 1985, she signed a statement to the following effect:4
I, Kim Lee Gilmour understand that as an employee of the Canadian Security Intelligence Service I may at anytime be required to work anywhere in Canada. Further, I understand that the nature of my employment will be such that I cannot discuss it with persons outside the service.
| [emphasis added] |
Je, soussigné, Kim Lee Gilmour, suis conscient que je peux, à tout moment, en tant qu'employé du Service canadien du renseignement de sécurité, être appelé à aller travailler n'importe où au Canada. En outre, je sais que la nature de mes fonctions m'interdit d'en discuter avec des personnes qui ne font pas partie du Service.
| [je souligne] |
[8] Following an interview on the 2nd of May, 1985, a record of the interview5 records the following:
| Mrs. Gilmour was advised as regards the mobility requirements of the work. She suggests that while she would prefer to remain in Vancouver, both she and her husband are prepared to relocate as the organization requires. |
| ... |
| Mrs. Gilmour suggests that her husband, a ten-year member of the Vancouver City Police, supports her application with CSIS and is willing to give up his career in order to follow her current interests. This situation, I find, is somewhat unusual; however, applicant assures me that she and her husband have arrived at this decision after much consultation. ... I have cautioned her to consider the difficulties of blending two careers where transfers are a continuous requirement of the job. |
[9] The plaintiff received a written offer of employment from the Service dated the 2nd of August, 1985. That offer contained the following sentence6:
| Also, as explained during your interviews, as a condition of employment you may be required, on occasion, to relocate, depending on the operational needs of the Service. |
The plaintiff accepted the offer of employment and, in the autumn of 1985, entered training at a location in Ontario for a period of some five (5) months. Following training, the plaintiff was posted to the British Columbia regional office of the Service in an entry level "Intelligence Officer" position.
[10] The plaintiff continued in her employment with the Service until she was declared to have abandoned that employment, as noted earlier. She rose through the ranks as an Intelligence Officer to the point where her position was at the "full working level". Her performance was appraised annually at the "fully satisfactory" level or above7. Most of the appraisal reports contained commentary regarding "mobility" in the employment of the Service.
| (2) The Transfer Process and its Aftermath |
[11] The Service adopted a "Human Resource Deployment and Development" policy effective the 1st of June, 1990. The policy was distributed to all employees under cover of a memorandum dated that day. The philosophy underlying the policy was expressed within the policy itself in the following terms8:
The employees of CSIS are its most important resource. The objectives and principles of human resource management in the Service reflect this belief and are designed to promote a corporate approach to human resource management. Management's practices must ensure that the Service as a whole excels in its work, and that all employees are treated fairly and reasonably.
Les employés du SCRS sont sa ressource la plus importante. Les objectifs et principes de gestion des ressources humaines, conçus de façon à promouvoir une approche globale reflètent cette conviction. Les pratiques de gestion doivent favoriser l'excellence et le traitement juste et raisonnable des employés.
The Policy defines "Employee Assignment" as involving:
| ... |
| 1. Mobility: the redeployment of resources between regions and Headquarters. |
| ... |
| 1. Mobilité: le redéploiement des ressources entre les bureaux régionaux et l'Administration centrale. |
| 2. Transfer: the movement of an employee from one position to another at the same level. |
| 2. Mutation: l'affectation d'un employé d'un poste à un autre de même niveau. |
At page 28 of the Policy, the following appears:
| 5. Rotational Development Transfer Program (RDTP): The purpose of the RDTP is to enable IOs [Intelligence Officers such as the plaintiff] who have worked at Headquarters for at least two years to obtain experience in a region and eventually vice versa. The RDTP will give all IOs equal development opportunities, and facilitate transfers from Regions to Headquarters. To be eligible for the program, employees must meet the following requirements: |
| 5. Programme de mutation par rotation des AR (PMR); le PMR vise autant à permettre aux AR [Agents de renseignements telle que la demanderesse] en poste à l'Administration centrale depuis au moins deux ans d'acquérir de l'expérience en région et par la suite, l'inverse. Le PMR offrira à tous les AR des chances égales de perfectionnement et facilitera des mutations vers l'Administration centrale. Les employés visés par le programme sont des agents de renseignements: |
| 1. They must be at the IO-02 or IO-03 level (indeterminate period). |
| 1. de niveau IO-2 ou IO-3 (période indéterminée); |
| 2. They must have at least two years experience as an Intelligence Officer in the Service. |
| 2. qui ont au moins deux (2) ans d'ancienneté à titre d'agent de renseignements au Service; |
| 3. They must have undergone the full Intelligence Officer entry training, (in analysis and investigation), or equivalent, i.e. intensive training. |
| 3. qui ont reçu la formation préparatoire entière (analyse et enquête pour agents de renseignements ou l'équivalent c'est-à-dire formation intensive; |
| 4. They must have worked only at Headquarters or in a region. |
| 4. qui ont travaillé uniquement à l'Administration centrale ou uniquement en région. |
| 5. They must have signed the mobility agreement, or be prepared to do so. [emphasis added] |
| 5. qui ont signé l'engagement en matière de mobilité ou qui sont disposés à le faire. [je souligne] |
[12] The plaintiff fell squarely within the terms of the Program and met all of the requirements. In effect, she was put on notice that "eventually", she would have to move to headquarters in the National Capital Region.
[13] By notice dated the 16th of May, 1991, the plaintiff and other employees of the Service were notified that the "...eventually vice versa" phase of the RDTP had been reached. The notice read in part9:
| We now ask all eligible IOs from classes 1, 2, 3 who will be transferred this summer or in the summer 1992 to HQ to contact their regional personnel managers no later than 91-05-24 and indicate the branches in HQ where they would prefer to work. Insofar as it is possible to reconcile operational requirements and employee preferences, the employee's choice will be respected. In June 1991, the employees who have indicated that they wish to transfer this year will receive notices of transfers with effective dates to be determined by respective directors general. |
[14] The plaintiff was apparently interviewed by her personnel manager, as contemplated by the foregoing passage, on the 4th of June, 1991. A record of the interview10 provides:
| [The plaintiff] indicated that she enjoys her work and wants a career with the Service. However, she expressed concern about the impact of "mobility" on dual-career families in general and her situation in particular. [The plaintiff] believes that HQ experience could be beneficial although she does not see it as essential for non-supervisory positions. |
The plaintiff apparently received, or at least reviewed, the foregoing record. She replied in writing to the record in part as follows11:
| ...However, I would like to emphasize a transfer anticipated for summer/fall 1991 would incur a great hardship on my family situation should my spouse be unable to relocate. A transfer for him at this time would conflict with his own opportunities for advancement. Should we decide to take up two separate residences as a result of the transfer it is essential a time frame be mutually agreed upon with a following rotation to return to B.C. Region. The emotional instability without established support systems, coupled with the financial burden of dual residences would necessitate prior planning required to explore all options available. Timing, would be an important variable, therefore, the earliest time these issues are addressed the more likely plans can be explored. |
[15] During her testimony, the plaintiff acknowledged that the reference in the foregoing quotation to "summer/fall 1991" was a typographical error and should have been a reference to "summer/fall 1992". In any event, the exchange clearly indicates that the plaintiff was put on notice of an anticipated transfer to headquarters in the summer or autumn of 1992. That relocation was confirmed by what would appear to be a facsimile message dated the 2nd of April, 199212.
[16] The plaintiff responded to the notice of impending transfer by a memorandum dated the 21st of April, 199213 partially to the following effect:
| After lengthy deliberation and consultation with my spouse and having explored all available avenues, we reached a joint decision to request a stay in my transfer proceedings. |
The plaintiff went on to outline the compassionate reasons mitigating against a transfer in the summer or autumn of 1992. The requested stay was granted to "...no later than September 1993."14
[17] With the agreement to delay the plaintiff's transfer to Ottawa, she was apparently placed into a position with the Service, surplus to establishment in the B.C. Region, that was "on loan" from headquarters15.
[18] The assignment of the plaintiff to the headquarters of the Service, effective on an unspecified date, was confirmed on the 4th of June, 1993. The date was apparently understood to be the 4th of August, 1993.16
[19] The plaintiff wrote again by memorandum dated the 24th of June, 199317. She wrote:
| ... 3) Transfer and geographical relocation at this time will create extreme hardship on my personal situation as it will require me to choose between my committment [sic] and loyalty to the organization and my committment [sic] to my marriage and family life. I cannot consider a geographical relocation at this time if it adversely affects the career of my spouse, the stability of our current marital relationship, and the stability of our financial situation. A temporary separation where we maintain two separate residences would cause great hardship financially and emotionally; this would not be an alternative for us. |
| 4) I would be in a position to reconsider relocation if the Service can meet the following conditions: |
| a) The transfer to Headquarters does not exceed a period of two years and that I return to the B.C. Region in Metrotown, Burnaby upon completion of that time. |
| b) The Service be successful in relocating my spouse on a secondment to an Ottawa police force, in the drug squad or gang squad for a period not exceeding two years. |
| c) The terms of my spouse's secondment must guarantee the following: |
| i) The salary must not be less than his current rate of pay approximately $52,400.00 which will be subject for increment ii) That he retain his current rank of Corporal iii) That he retain his pension and senority [sic] iv) That his time spent on a secondment to Ottawa be portable when he returns to the Vancouver Police Department |
| 5) If the Service can be successful in meeting the above conditions then my spouse and I will consider a geographical relocation. |
| 6) I understand the spirit of the RDT program is aimed at maximizing the employee's career potential and therefore increasing the organization's efficiency. However, given the circumstances presented previously and reviewed above, I am regrettably unable to fully participate in RDT program and would like to withdraw from the program until such time as my personal circumstances have changed so that I can meet the demands of the program. I am prepared to remain in BC region as an IO 3, Grade 7 level until such time that I receive my Headquarters experience and can apply for promotion. |
| 7) Please consider this submission and understand a transfer at this time, can be accomplished only at the cost of my marriage or my career. If the alternative proposed in paragraph 4 is unacceptable to the Service, please define what terms are acceptable and define the consequences should I be unable to meet these terms. I ask for your compassion and await your reply. [emphasis added] |
[20] The Service indicated that the plaintiff's conditions could not be met. The Director General, Training and Development advised that:
| [The plaintiff] is required to relocate to Headquarters within the time frame provided in the Relocation Policy. Failing to meet this requirement, will lead to termination unless she can be accommodated within B.C. Region in another position outside of the IO group. |
The foregoing information was apparently conveyed to the plaintiff on the 21st of July, 1993 together with a notation that there were no vacant positions outside the IO group that would be currently available to the plaintiff in the BC Region and that no such positions were expected to come vacant in the "foreseeable future"18.
[21] As earlier indicated, the plaintiff grieved the relocation requirement19.
[22] By letter dated the 20th of August, 1993, the plaintiff was advised that she would be given five (5) days "of grace" from the 23rd of August, 1993 to report to Ottawa. She was advised20:
| ... should you not be in your HQ position you will receive a letter from the DG Counter Intelligence advising you that on the grounds of abandonment of position you are dismissed from the Service. |
The plaintiff did not report to Ottawa by the expiration of the grace period provided. In the result, the plaintiff was advised that she had been dismissed for abandonment of her position.21 It is the letter of dismissal that is at the heart of this action. The plaintiff grieved the dismissal. As earlier indicated in these reasons, her grievances of both her transfer and her dismissal were rejected at the first and second levels. Both were taken to the third level, the Director of the Service.
[23] On the 27th of October, 1993, the Director of the Service wrote to the plaintiff in the following terms22:
| This letter is in response to the two (2) grievances you launched; one against your transfer from B.C. Region and the other against the DDO's termination of your employment when you refused to accept this transfer. In reaching my decision on these matters, I have considered carefully all of the pertinent facts, including those matters raised in your submissions and that of the Employees' Association. |
| In short, although I regret that you chose not to comply with the Service's transfer order, I fully support the DDO's decision to release you for having abandoned your position in the Counter Intelligence Branch of HQ. |
| Your transfer was a necessary part of the Service's long-term strategy to continue to effectively discharge its mandate. Moreover, you were aware, even before your engagement in 1985, that mobility was a condition of employment. In the face of a one-year deferral, and the knowledge that your peers were accepting their transfers to HQ on a regular basis, you refused to honour your commitment. |
| In my view, to accept such a posture would be unfair to your colleagues who have been relocated in accordance with policy requirements and detrimental to the future effectiveness of CSIS. |
| For these reasons, your grievances are denied. |
[24] As earlier indicated, the plaintiff took her grievances before the Public Service Staff Relations Board for adjudication. She did so with the support of the Service's Employees' Association, an association established and funded by the Service to support non-unionized employees of the Service, such as the plaintiff, in their relationships with the Service. The Public Service Staff Relations Board rejected the plaintiff's application for want of jurisdiction. The Board nonetheless made certain observations that are pertinent with respect to this action. At page 1 of its decision23, it wrote:
| The grievor [here the plaintiff] alleges that the proposed transfer and subsequent termination were improper and that she had not abandoned her position. She had refused to relocate to Ottawa because her personal situation did not permit her to accommodate the transfer at that time. In her grievance, she stated as follows: |
| I have not abandoned my position as I am ready, willing and able to continue my employment. I have never considered abandonment as an alternative. To the contrary, I am currently in the process of seeking redress through a formal grievance to have the transfer overturned. The transfer itself is improper. |
[25] On the final page of its reasons, the Board wrote:
| Although I have concluded that I am without jurisdiction in this case, I wish to point out that even if I did have jurisdiction I would not have found in favor of the grievor [the plaintiff] based on the merits of this case. The employer satisfied me that mobility for Intelligence Officers is a bona fide operational requirement. It is difficult to conceive how CSIS could function otherwise. The grievor knew this when she was hired and signed documents indicating her willingness to relocate as required. Nevertheless, when she was first asked to relocate, the grievor asked for a deferral which was granted for a one-year period. When the grievor was ordered to transfer, she refused unless certain conditions which she set out were met. In my opinion, not only were these conditions difficult, if not impossible, for CSIS to meet, they amounted to a repudiation of the employment terms under which she was hired. Finally, as I noted earlier in this decision, when the grievor was asked during cross-examination why she had joined CSIS when she knew she would be subject to being transferred at any time, she replied as follows: |
| I took a chance on never having to relocate. |
| (3) The Role of the Employees' Association |
[26] As earlier indicated, the plaintiff was apparently supported in her negotiations with the Service regarding relocation, in her grievances and in her reference to arbitration before the Public Service Staff Relations Board, by the Employees' Association within the Service. The mandate of the Association is spelled out in a booklet which, according to the President of the Association at all times relevant to this matter, who testified before me, was in the hands of all members of the Association such as the plaintiff. The mandate is in the following terms24:
| The Employees' Association has the responsibility to provide support to its members in dealing with the senior management of the Service. In addition, the Association endorses co-operative initiatives involving senior management on matters pertinent to the policies/programs of the Service and its membership. The Association believes in a two way commitment to ensure the well-being of its members and the fulfilment of the mandate of the Service. |
The president of the Association wrote to the Director of the Service on the 6th of October, 1993 with regard to the third level grievances of the plaintiff25. The president also wrote to a Senior Staff Relations Officer in Personnel Services of the Service regarding a discussion that he and the Staff Relations Officer apparently had about the President's memorandum to the Director, just referred to.26
[27] The Officer (National) of the Association also wrote to the Public Service Staff Relations Board in support of the position of the plaintiff.27 The President of the Association acknowledged in his testimony before me that he saw the letter from the Officer (National) and, impliedly at least, endorsed it. Apparently in the normal course of things, a copy of the letter found its way into the hands of senior officers of the Service. According to the President of the Association, once again in testimony before me, it caused a storm of reaction within the Service. The Officer (National) was removed from her position with the Association. The President of the Association felt compelled to write to the Public Service Staff Relations Board substantially softening the position in support of the plaintiff. The President of the Association acknowledged in his testimony that he felt "intimidated" by the reaction of the Service. Indeed, the Service effectively cut resources available to the Association by failing to provide the Association with an alternative Officer (National) to replace, for a number of months, the Officer (National) who had been removed.
[28] Counsel for the Service urged that all of the testimony before me on behalf of the Association and the associated documents were irrelevant and should not be admitted at trial. I reached a different conclusion. While the testimony and documents may not have been directly relevant to the treatment of the plaintiff by the Service itself, they were, nonetheless, relevant to the importance that the Service attached to the conduct of the plaintiff in refusing a transfer to headquarters to the point where she was dismissed for abandonment for her employment. While I attach little weight to the testimony on behalf of the Association and related documents, I regard them as nonetheless worthy of some weight in assessing the bona fides and fairness of the Service in its treatment of the plaintiff.
THE TESTIMONY AT TRIAL AND RELATED READ-INS FROM AN EXAMINATION FOR DISCOVERY
[29] Only the plaintiff and the person who was the President of the Employees' Association at all relevant times testified at trial. To a very large extent, they simply identified the quite substantial number of documents that were before the Court, mostly by agreement, and spoke to their contents and circumstances surrounding their relevance to the issues in this trial. The testimony involved small, but significant additions of note. The plaintiff acknowledged that at the time of the trial, she had no interest in returning to employment with the Service and would not give up her current employment to return to the Service; this, despite the fact that reinstatement is one of the reliefs sought in the plaintiff's statement of claim. As earlier noted, the President of the Employees' Association acknowledged that he was intimidated by the Service in his efforts and those of his colleagues to support the plaintiff in her dispute with the Service regarding redeployment. In fact, the President acknowledged that the Employees' Association had been substantially penalized by the Service for the support that it provided.
[30] Counsel for the plaintiff read in extracts from the examination for discovery of an officer on behalf of the Service. Those extracts, together with supplements advocated by counsel for the Service and added to the record with the consent of counsel for the plaintiff, demonstrated that a number of other officers besides the plaintiff were substantially inconvenienced by the application of the human resource deployment and development policy to them. A number nonetheless accepted transfers to headquarters. Others were accommodated through transfers to positions outside the Intelligence Officer stream in the regions, albeit not in the British Columbia region, and by other arrangements. The officer who was examined for discovery acknowledged that, to his knowledge, the plaintiff was the only employee of the Service in the Intelligence Officer stream who was asked to transfer under the policy, adamantly refused, was not accommodated, and then was deemed to have abandoned her position when she failed to transfer.
RELIEFS SOUGHT
[31] In a second amended statement of claim filed the 28th of February, 1996, the plaintiff sought the following reliefs:
| a) a declaration that the Service breached its duty to act fairly and in accordance with the principles of natural justice; |
| b) a declaration that the purported transfer and subsequent termination of employment of the plaintiff by the Service was unlawful, null and void, and of no force and effect; |
| c) judgment in favour of the plaintiff of monies sufficient to compensate her for any wages, salary, or other employment benefits or privileges which the plaintiff would have earned had the Service not unlawfully terminated her employment; |
| d) interest; |
| e) costs; and |
| f) such further and other relief as this Court considers just. |
ANALYSIS
| (1) Declaratory Relief |
[32] By virtue of subsection 18(1) of the Federal Court Act28, the Trial Division of this Court has exclusive original jurisdiction to grant declaratory relief against any federal board, commission or other tribunal. There can be no doubt that the Service, and officers of the Service, in directing that the plaintiff report for employment at the headquarters of the Service in Ottawa and in terminating the plaintiff's employment when she failed to report in accordance with that direction, were acting as a "federal board, commission or other tribunal" within the meaning assigned to that expression in subsection 2(1) of the Federal Court Act. By virtue of subsection 18(3) of the Federal Court Act, declaratory relief may be obtained only on an application for judicial review made under section 18.1 of that Act, not in an action such as this.
[33] In Sweet et al v. Canada29, the Federal Court of Appeal determined that where, as here, different sorts of relief are claimed, some of which require institution of proceedings as an action and others as judicial review, the proper course is to determine which relief it makes more sense to decide first, and then to determine whether the procedure taken is the proper one with respect to that relief. On the evidence before the Court and in the light of submissions of counsel, I am satisfied that the principal relief here sought is monetary compensation. Further, based upon the analysis that follows with respect to monetary compensation, I am satisfied that the declarations sought should not be granted, even if this proceeding were properly constituted as a base for declaratory relief. No declaratory relief will be granted.
| (2) Monetary Compensation |
[34] Counsel for the plaintiff urged that the Service breached its contract of employment with the plaintiff where that contract of employment should be taken to be comprised of the Service's offer of employment to the plaintiff, the mobility clause30 which the plaintiff signed, representations of managers of the Service made to the plaintiff throughout the course of her employment, and the Service's human resource policies at the relevant time.
[35] On the totality of the evidence before the Court, I cannot concur with counsel's representation. The summary of the documentary evidence before the Court that is presented in these reasons, when taken together with the testimony of the plaintiff herself, as well as that of the individual who was the president of the Employees' Association at the relevant time, leads me to conclude that, in its dealing with the plaintiff, the Service at all times acted in accordance with its relevant policy, the representations of managers of the Service made to the plaintiff reinforced that policy and neither policy or those representations provided a rational basis on which the plaintiff might conclude that she would be exempted from the Service's policy regarding mobility for persons employed as Intelligence Officers.
[36] While only referred to in passing earlier in these reasons, documentary evidence before the Court indicated that the plaintiff was regularly subject to performance appraisals.31 Almost without exception, the performance appraisal forms that were before me made direct reference to the mobility policy and its impact on the plaintiff and those forms were signed by the plaintiff.
[37] Reference to the read-ins from examination for discovery of an officer of the Service which disclosed that other Intelligence Officers might have been differentially treated from the plaintiff, I conclude demonstrate precisely the opposite. Each of those other Officers was either required to move in accordance with mobility policy of the Service or was accommodated in a way that was examined for the plaintiff in the British Columbia region with the examination disclosing that there was no possibility of accommodation for the plaintiff within that region. The plaintiff was advised of the lack of opportunity for accommodation in the British Columbia region.
[38] Further, I am satisfied that the Service, throughout the period of time when the plaintiff was expressing concern regarding the impact on her family and economic situation of a move to the Service's headquarters, acted reasonably, openly and with compassion. The plaintiff was granted a deferment. She was advised that no further deferment would be provided. The Service apparently attempted to accommodate the plaintiff's rather extraordinary terms and conditions under which she and her husband would "reconsider" a transfer of the plaintiff to Ottawa. Not surprisingly, the Service was unable to meet those terms and conditions. An accommodation within the British Columbia region was examined and was found to be unavailable.
[39] The foregoing brief analysis would be determinative of the claim for relief in the nature of monetary compensation were it not for what I determine to be a breach of a term or condition of the employment contract between the Service and the plaintiff to which I will refer following a brief review of certain of the case law that was cited before me.
[40] In Machtinger v. H.O.J. Industries Ltd.32, the Supreme Court of Canada dealt with the issue of the vulnerability of non-unionized employees, albeit in the private sector. At page 990, Mr. Justice Iacobucci, for the majority of the Court, wrote:
| This appeal concerns the contractual rights of employees who are dismissed without cause by their employers. Specifically, where a contract of employment provides for notice periods less than the minimum prescribed by the applicable employment standards legislation, ... and absent any claims of unconscionability or oppression, is an employee entitled to reasonable notice of dismissal, or to the minimum statutory notice period? The answer to this question is of considerable importance to employees. |
| Indeed, it has been pointed out that the law governing the termination of employment significantly affects the economic and psychological welfare of employees. See K. Swinton, "Contract Law and the Employment Relationship: The Proper Forum for Reform", ...: |
| The law governing termination of employment is obviously of significant importance to an individual worker, for the degree of job security which he is assured depends upon the ease with which the law allows his employer to terminate his employment. Discharge has serious financial ramifications for the individual in that it puts an end to remuneration, as well as to less quantifiable economic benefits such as accrued seniority. Discharge can have ongoing financial effects, as well, for the reason given for termination (if any) may affect accessibility to future jobs as well as entitlement to government benefits such as unemployment insurance. The psychological effects of discharge are also important, because of the disruption of the individual's life caused by seeking new employment and establishing himself in a new environment. |
[41] Mr. Justice Iacobucci, again on behalf of the majority, appears to fully endorse the foregoing views. He further quotes from the Swinton text, at page 1003 of the reported decision, to the following effect:
| ... the terms of the employment contract rarely result from an exercise of free bargaining power in the way that the paradigm commercial exchange between two traders does. Individual employees on the whole lack both the bargaining power and the information necessary to achieve more favourable contract provisions than those offered by the employer, particularly with regard to tenure. |
[42] While, as noted, the Machtinger case dealt with private sector employment, counsel before me were in agreement that there is a substantial convergence between the foregoing principles in relation to private sector employees and the situation of non-unionized public sector employees.
[43] Recently in Wells v. Newfoundland33, Mr. Justice Major, for the Court, wrote at paragraph 29:
| In my opinion, it is time to remove uncertainty and confirm that the law regarding senior civil servants accords with the contemporary understanding of the state's role and obligations in its dealing with employees. Employment in the civil service is not feudal servitude. The respondent's position was not a form of monarchical patronage. He was employed to carry out an important function on behalf of the citizens of Newfoundland. The government offered him the position, terms were negotiated, and an agreement reached. It was a contract. |
[44] At paragraph 33, Mr. Justice Major continued:
| In cases such as this, the Court's inquiry should focus on the terms of the civil servant's contract. These are to be found in the written and verbal manifestations of the agreement, applicable statutes and regulations, and the common law. A good starting point in determining the terms of the respondent's employment contract is s. 5(4) and (5) of the 1970 Act, under which he was appointed. ... |
[45] While the plaintiff here likely did not fall within the description "senior civil servant" which was applicable on the facts of the Wells matter, I am satisfied that the foregoing quotations from the reasons of Mr. Justice Major apply equally to the plaintiff as a non-unionized employee of the Service, particularly in circumstances where, as here, the evidence before the Court clearly indicated that the Employees' Association designated to assist employees such as the plaintiff was significantly limited in its ability to do so and sanctioned when it attempted to do so. The plaintiff was clearly in a position of power imbalance in relation to the Service regarding her concerns with respect to mobility obligations.
[46] At the relevant time, that is to say, the time when the plaintiff was dismissed for abandonment of her position, service policy specifically dealt with the issue of "Abandonment of position". A policy document entitled "704 Non-Unionized Employees: Hours of Work, Leave and Designated Paid Holidays"34 provided at paragraph 3.4.4:
| If an employee is on unauthorized leave for five consecutive days or more, and the absence is not for reasons beyond the employees' control, the employee may be judged to have abandoned the position and employment with the Service may cease. |
[47] I am satisfied that the plaintiff fell within the terms of this policy provision when she failed, as directed, to report for employment at the Service's headquarters in Ottawa on the date on which she was directed to report and continued to fail to report for "...five consecutive days or more, ..." thereafter.
[48] The same policy provision provided at paragraph 3.4.4.b:
| Positions may be declared abandoned only by the Director. [emphasis added] |
Here, as earlier noted in these reasons, the declaration of abandonment and of resultant loss of employment was signed and provided to the plaintiff by the Deputy Director, Operations and not by the Director himself35.
[49] In Armstrong v. Royal Canadian Mounted Police (Commissioner) et al.36, Mr. Justice Rothstein, then of the Trial Division of this Court, wrote at paragraph 15:
| ...The direction to officers and members of the RCMP to observe and comply with the manuals does not confer on them the force of law. This is the same type of directive one would expect to find in any business organization, implicitly or explicitly. It is a notice to employees that they are expected to follow the procedures applicable to them. Such procedures may have the force of law if they are contained in statutes or regulations, or Commissioner's standing orders, but a direction to follow procedures, of itself, does not give the procedures the force of law. [emphasis added] |
[50] I am satisfied that the Service's policy with respect to "Abandonment of position" quoted above is more in the nature of a "Commissioner's standing order" in the context of the RCMP than it is in the nature of a mere direction to officers and members, or in this case, non-unionized employees of the Service. As such, I am satisfied that it has the force of law, particularly when, as here, it is to be interpreted against the Service itself, the employer, with a substantial power imbalance in its favour as against the plaintiff, as opposed to circumstances where it might be interpreted as against an employee.
[51] In the result, I am satisfied that the notice of abandonment of position and the resultant termination of employment given to the plaintiff over the signature of the Deputy Director, Operations of the Service on the 30th of August, 1993, was invalid. That being said, I am satisfied that the invalidity was rectified when, on the 27th of October, 1993, some two months later, the Director of the Service himself wrote to the plaintiff dismissing her grievance at the third level against "...the DDO's termination of your employment when you refused to accept this transfer". The Director continued:
| I fully support the DDO's decision to release you for having abandoned your position in the Counter Intelligence Branch of HQ.37 |
[52] I am satisfied that, in so "fully support[ing] the DDO's decision..." the Director in effect adopted that decision as his own and in so doing exercised the power reserved to him, and to him alone, to declare the plaintiff's position abandoned.
[53] In the result, I conclude that, for a period of approximately two months commencing on the 30th of August, 1993 and terminating on the 27th of October, 1993, the dismissal of the plaintiff from her employment was unlawful and of no force or effect.
[54] Exhibit P-18 before the Court in this matter constituted a statement of the plaintiff's alleged damages. For the year 1993, the plaintiff's damages were fixed at $16,215.33, this figure reflecting the acknowledged responsibility of the plaintiff to mitigate her damages. The damages for the year 1993 reflect the impact of the loss of her employment for a period approximating four months. As I have earlier indicated, I have determined that the dismissal of the plaintiff was of no force or effect for some two months, less a few days, of that four-month period. For the period when her dismissal was of no force or effect, I determine her damages to amount to $8,000.
[55] In all other respects, I determine the plaintiff not to be entitled to compensation for loss of wages, salary or other employment benefits or privileges, based upon the foregoing analysis.
| (3) Interest |
[56] Section 36 and 37 of the Federal Court Act provide for judgment interest in respect of judgments of this Court to be governed by the laws relating to judgment interest in proceedings between subject and subject that are in force in a province where the cause of action giving rise to the monetary judgment arises in that province. It was not in dispute before me that this cause of action arose in the province of British Columbia.
[57] Counsel referred me to the British Columbia Court Order Interest Act38 as the appropriate authority for determination of interest on the monetary award for which I have determined to give judgment in this action. Counsel before me were not in dispute that the interest rates provided in the British Columbia Annual Practice 200039 are here applicable. Further, counsel would appear to be in agreement that with respect to the year 2000, the pre-judgment interest rate for the first six months is 4.50% and for the last six months of the year is 5.50% with post-judgment interest for the last six months of this year at the rate of 7.5%.
[58] I am satisfied that the plaintiff is entitled to pre-judgment and post-judgment interest on the judgment that will be provided herein calculated in the manner proposed by counsel. I assume that counsel will be able to come to an agreement on such calculation and I do not propose, at this point in time, to attempt to make the calculation of behalf of the Court. If counsel have difficulty reaching agreement, I may be spoken to.
| (4) Costs |
[59] In the normal course, costs follow the event. Here, success has been markedly divided although the plaintiff has not been entirely unsuccessful. In the circumstances, costs will follow the event, that is to say, the plaintiff will be entitled to her costs but, given the divided success, I am satisfied that those costs should be as determined on an assessment with fees to be determined in accordance with Column 2 of the Table in Tariff B to the Federal Court Rules, 199840 rather than at the normal rate which is in accordance with Column 3 of the Table in Tariff B.
| (5) Such further and other relief as this Court considers just |
[60] No further or other relief was spoken to by counsel. No further or other relief will be granted.
______________________________
J. F.C.C.
Ottawa, Ontario
November 17, 2000
3 Plaintiff's Book of Documents, Tab 23.
7 See Exhibit P-1, tabs 48, 8, 9, 14, 18, 49 and 52.
16 Exhibit P-1, tabs 24 and 32.
18 Exhibit P-1, tabs 26 and 27.
19 Exhibit P-1, tabs 28 and 31.
24 Exhibit P-12, plaintiff's Book of Documents, tab 42.
25 Exhibit P-13, plaintiff's Book of Documents, tab 17.
26 Exhibit P-14, plaintiff's Book of Documents, tab 24.
27 Exhibit P-16, plaintiff's Book of Documents, tab 26.
29 (1999), 249 N.R. 17 at paragraph [17], page 26 (F.C.A.), (not cited before me).