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T-2767-84
Mariette Mudarth (Plaintiff) v.
Her Majesty The Queen in Right of Canada as represented by the Minister for the Department of Public Works (Defendant)
INDEXED AS: MUDARTH v. CANADA (MINISTER OF PUBLIC WORKS) (T.D.)
Trial Division, Addy J.—Ottawa, November 4 and 10, 1988.
Public service — Termination of employment — Whether employment can be terminated because of "discontinuance of function" within Act s. 29(l) where duties continue to be performed within Civil Service — Management rights.
Before the end of her four-year contract as a secretary with the Department of Public Works, the plaintiff was advised that, because of a restraint policy, her position was being abolished and that her services would no longer be required. Her duties would be performed by several other employees.
This is an action for a declaration that the defendant had no authority to terminate her employment prior to the end of her contract and for compensation for the consequent loss of wages and other benefits.
Held, the action should be dismissed.
The issue is whether the employment was in fact terminated either "because of lack of work or because of the discontinu ance of a function" within the meaning of subsection 29(1) of the Public Service Employment Act. Since in this case there was no lack of work, the issue turned solely on the question of whether there had been a "discontinuance of a function".
It was admitted that the work formerly assigned to the plaintiff continued to be performed by others. It was divided up among several employees. However, to conclude that the func tion was therefore not discontinued would preclude the Govern ment from abolishing any position and discharging the employee unless some part of the tasks or work performed by that employee was completely discontinued and no longer performed by any other person or group in the Civil Service. This would substantially preclude reorganization of the depart ments and branches of the service by the redistribution of tasks and would, to a large extent, paralyze any updating of adminis trative procedures. Such a radical interpretation of subsection 29(1) was not required to give full effect to the scheme and spirit of the legislation.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Financial Administration Act, R.S.C. 1970, c. F-10, ss. 5
(as am. by S.C. 1980-81-82-83, c. 170, s. 3; 1984, c. 31,
s. 4), 7 (as am. by S.C. 1984, c. 21,s. 78; c. 39, s. 41). Interpretation Act, R.S.C. 1970, c. 1-23.
Public Service Employment Act, R.S.C. 1970, c. P-32, s. 29(1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Coulombe v. Canada, T-390-84, Cattanach J., judgment dated 5/4/84, F.C.T.D., not reported; Public Service Alliance of Canada et al. v. Canadian Grain Commission and Canada (Treasury Board) et al. (1986), 5 F.T.R. 51 (F.C.T.D.).
DISTINGUISHED:
Gonthier et al. v. Canada et al. (1986), 77 N.R. 386 (C.A.).
AUTHORS CITED:
Funk and Wagnalls New Standard Dictionary, 1942, "function".
Shorter Oxford English Dictionary, 3rd. ed., Oxford: Clarendon Press, 1959, "function".
The Random House Dictionary of the English Language, New York: Random House, 1966, "function".
Webster's Third New International Dictionary (Una- bridged), Springfield: G & C Merriam Company, 1976, "function".
COUNSEL:
Andrew J. Raven for plaintiff. Brian J. Saunders for defendant.
SOLICITORS:
Soloway, Wright, Houston, Greenberg, O'Grady, Morin, Ottawa, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
ADDY J.: The plaintiff was employed as a public servant in the secretarial capacity under a four- year contract with the Department of Public Works. Her employment commenced in May 1982 and was to terminate at the end of March 1986.
Because of the institution of a restraint policy in early 1983 to reduce staff for economic reasons, she was advised in writing in March 1983 that her position was being abolished and that as a result,
her services would no longer be required after the 1st of July 1983.
She is suing for a declaration that the defendant had no authority to terminate her employment prior to the end of her four-year contract in March 1986 and claims compensation for the consequent loss of wages and other benefits. The parties have agreed that the damages as of the day of trial, should the plaintiff prove to be successful in her claim, amount to $48,974.59.
The sole issue before the Court is whether or not the plaintiff's employment was legally terminated by the defendant pursuant to subsection 29(1) of the Public Service Employment Act, R.S.C. 1970, c. P-32. It was agreed by counsel arguing the matter at trial that, if the employment was in fact terminated either "because of lack of work or because of the discontinuance of a function" as provided for in that section the plaintiff must fail in her claim, otherwise she must succeed. Subsec tion 29(1) of the Public Service Employment Act reads as follows:
29. (1) Where the services of an employee are no longer required because of lack of work or because of the discontinu ance of a function, the deputy head, in accordance with regula tions of the Commission, may lay off the employee.
The plaintiff had been hired as an assigned secretary by the Department, that is, she was part of a secretarial pool of the Department and was assigned to a specific project team consisting of engineers, architects and technicians who acted as a unit, furnishing certain services. Her secretarial work was performed for the members of that team in the geographical area of the regional headquar ters in Edmonton where the team was carrying out its work. She was the only secretary used by that team. Following the termination of her employ ment, the members of the team were obliged to use the Word Processing Pool for their typing and correspondence. Other duties of a secretarial nature such as reservations for trips etc. were performed by members of an existing group known as the Special Services Group. The task of answer-
ing telephones formerly performed by the plaintiff was shared by the members of the project team.
The head of the team had been faced with implementing the policy of restraint. At the same time he realized that there existed a need for increased architectural and engineering services and decided that an extra person-year could be provided by releasing the plaintiff. Before coming to that decision he made several inquiries with the Word Processing Pool and with Special Services to satisfy himself that the work could be done satis factorily without the services of a secretary being required.
There was ample evidence that, subsequent to the release of the plaintiff, not only was there no lack of work for the team but, on the contrary, more engineers, architects and technicians were in fact hired and the work of the team increased. Therefore the work formerly performed by the plaintiff must also have increased. There was no evidence that any reduction in work had been anticipated previously. The whole issue must therefore turn solely on the question of whether there had been a "discontinuance of a function" as mentioned in subsection 29(1) above.
No other secretary was hired to perform the secretarial duties for the team nor was there a secretarial position created elsewhere in the Edmonton office to do the work.
The argument of counsel for the plaintiff in essence was that, since the actual work formerly assigned to the plaintiff continued to be performed for the team, the "function" was not discontinued: it was merely distributed between the Word Proc essing Pool, Special Services and the individual members of the team itself. Counsel for the defendant on the other hand argued that the func tion related to the employee and that where, as in the present case, for reasons of economic restraint and budget cutbacks the services performed by an employee are distributed among other employees or branches of the service, the function of that employee has been eliminated or discontinued.
The common law generally recognizes the power of an owner or a general manager of an enterprise, business or undertaking to hire and fire employees subject to any contractual rights which the employees might have. Section 7 of the Financial Administration Act, R.S.C. 1970, c. F-10 [as am. by S.C. 1984, c. 21, s. 78; c. 39, s. 41], gives the Treasury Board the right to determine the man power requirements of the Public Service of Canada and to provide for the allocation and effective utilization of manpower and resources. Section 5 [as am. by S.C. 1980-81-82-83, c. 170, s. 3; 1984, c. 31, s. 4] of that same Act gives the Treasury Board the power to organize any part of the Public Service and to determine and control its establishments as well as power over such things as the financial management, managerial proceedings and financial commitments and expenditures.
In addition to limitations imposed by collective agreements, the very broad and general powers granted to the defendant Department by its Act and the Financial Administration Act can be and are in fact limited by provisions in other statutes. Among those is the Public Service Employment Act and the very section which is presently under consideration.
The Act does not define the word "function" nor is it defined in the Interpretation Act [R.S.C. 1970, c. I-23]. Failing a specific statutory defini tion of a word the interpretation must take into account one of the common ordinary grammatical meanings of the word most suitable to the context and to the general scheme of the statute in which it is used. It is also important to attempt to interpret it where possible without doing violence to other statutes which deal with related subject- matters. As Joyal J. stated in the case of Public Service Alliance of Canada et al. v. Canadian Grain Commission and Canada (Treasury Board) et al. (1986), 5 F.T.R. 51 (F.C.T.D.), at page 60, paragraph 52:
[521 In this respect, I should view a court's function in its enquiry as interpreting a Statute in a manner most consonant with its purpose and intent and in a manner which does not do violence to other Statutes whose purpose and intent are in the same generic mold.
Among the meanings commonly attributed to the word "function" we find the following diction ary definitions:
The Random House Dictionary of the English Language, Random House, N.Y. 1966:
function 1. the kind of action or activity proper to a person, thing, or institution.
Shorter Oxford English Dictionary, 3rd ed., Oxford: Claren- don Press, 1959:
Function 3. ... The special kind of activity proper to anything; 4. ... The kind of action proper to a person as belonging to a class, esp. to the holder of any office; hence, the office itself, an employment, calling, trade 1533.
Webster's Third New International Dictionary (Unabridged) G & C Merriam Company, Springfield, 1976:
function la: professional or official position:
OCCUPATION. 2. the action for which a person or thing is specially fitted, used, or responsible or for which a thing exists: the activity appropriate to the nature or position of a person or thing.
Funk and Wagnalls New Standard Dictionary, 1942 edition:
function Any specific power of acting or operating that belongs to an age. An office or work properly belonging to a person in a particular station or character. An activity properly belonging to a person or thing.
With regard to the meaning of the word "func- tion" as used in subsection 29(1) of the Public Service Employment Act which is presently being considered by me, Cattanach J. had this to say at page 5 of the unreported case of Coulombe v. Canada, Federal Court, Trial Division, file T-390-84, reasons dated the 5th of April 1984:
The word "function" in subsection 29(1) does not relate to any particular art or science nor is it used in a technical sense. That being so the word is to be understood as it is understood in the common language. Thus when a word is used in its ordinary sense it is a well known rule of courts of law that resort may be had to dictionaries to ascertain the meaning of that word in popular language.
Function is the act of performing and is defined as the kind of action belonging to the holder of an office, hence the function is the performance of the duties of that office. By the performance of the duties of an office the holder thereof can be said to fulfil his function. Functions are therefore the powers and duties of an office.
Thus it seems to me that when the functions of an office are transferred elsewhere in the course of a reorganization and the office is abolished while the functions are continued the func tion of the holder of the office is discontinued from which it follows that the services of an employee who held that office
are no longer required because of the discontinuance of the function formerly performed by him and the deputy head has authority to lay off the employee.
Counsel for the plaintiff, on the other hand, relies on a statement by Pratte J. in delivering reasons for judgment on behalf of the Court of Appeal in the case of Gonthier et al. v. Canada et al. (1986), 77 N.R. 386. The case involved a direction from the Treasury Board to reduce the amounts spent by the Public Service Commission in its Language Training Branch. As a result, the employment of the respondents was terminated along with approximately one-third of the 1200 employees engaged by that branch. The respon dents argued before the Court of Appeal that there was no lack of work, as in some cases the work done by the respondents was done by others. They also argued that there was no discontinuance of a function since the Language Training Branch con tinued to engage in the same activities both before and after their dismissal. The part of the judgment on which the plaintiff now relies is to be found at paragraph 25 of the above-mentioned report, where Pratte J. considers these two arguments [at pages 391-392]:
I am not persuaded by this argument. I am quite prepared to admit that the respondents were not dismissed "because of the discontinuance of a function". However, I think it is beyond question that their services were no longer required "because of lack of work". At the time the Public Service Commission was compelled to reduce by one-third the number of employees working in the Language Training Branch, no one suggested that these employees were not fully occupied and that there was no work to give them. However, once the Language Training Branch budget had been cut, the Branch was compelled to reduce its activities; and it is because the Branch's activities were reduced that it could then let go one-third of its employees. Accordingly, the respondents' services were no longer required "because of lack of work".
I do not feel that the above statement supports the plaintiff's argument or in any way overrides the interpretation of the word by Cattanach J. in the Coulombe case which I have quoted above. The facts are quite different. In the Gonthier case no functions of any kind were abolished: members of the Language Training Branch continued to carry out the same functions in the field of Lan guage Training both before and after the lay-off. In the case before me the work done and the tasks
and duties performed by the plaintiff were no longer allocated to any one person but, as previ ously mentioned, were distributed among the Word Processing Pool and Special Services Branch and the members of the team.
To give effect to the argument of the plaintiff regarding the meaning to be attributed to the word function would preclude the Government from abolishing any position and discharging the employee unless some part of the tasks or work performed by that employee was completely dis continued and no longer performed by any other person or group in the Civil Service. This would of course greatly preclude reorganization of the departments and branches of the service by the redistribution of tasks and would, to a large extent, paralyze any updating of administrative proce dures. Such a radical interpretation of subsection 29(1) of the Public Service Employment Act is not at all required in order to give full effect to the scheme and spirit of legislation. The Act, of course, does encroach on and limit the general powers of management which are given to the Government of Canada and its various depart ments but the encroachment should be limited to the extent required to give effect to its objects and provisions.
I therefore find that, in the case at bar, the function was discontinued in accordance with the provisions of subsection 29(1).
Accordingly, there will be judgment dismissing the action with costs.
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