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T-1031-90
David Basu (Plaintiff)
v.
Her Majesty the Queen (Defendant)
INDEXED AS.' BASU V. CANADA (T.D.)
Trial Division, Rouleau J.—Ottawa, November 29 and December 9, 1991.
Judicial review — Equitable remedies — Declarations — Action for declaration superior obligated to accept resignation pursuant to Public Service Employment Act, s. 26 — Plaintiff, public servant suspended without pay and charged with fraud — Department refusing to accept resignation — Alleging obli gation to accept resignation thus entitling him to benefits including severance pay which was withheld as discharged for cause — Convicted of fraud — Action dismissed — Public interest considered in exercising discretion to grant declara- tory relief — Maxim no one should benefit from own wrongdo ing applied — Plaintiff attempting to profit from illegal acts — Granting relief sought encouraging illegality, contrary to pub lic policy.
Public Service — Termination of employment — Action for declaration superior obligated to accept resignation of public servant under suspension pending enquiry into alleged miscon duct — Had resignation been accepted employee entitled to severance pay subsequently withheld when discharged for cause — Plaintiff convicted of fraud — Discretionary relief sought denied on ground of public policy.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Public Service Employment Act, R.S.C., 1985, c. P-33, s. 26.
Public Service Terms and Conditions of Employment Reg ulations, SOR/67-118, s. 106.
CASES JUDICIALLY CONSIDERED APPLIED:
Cowan v. C.B.C., [1966] 2 O.R. 309; (1966), 56 D.L.R. (2d) 578 (C.A.); Cleaver v. Mutual Reserve Fund Life Association, [1892] 1 Q.B. 147 (C.A.); Hall v. Hebert (1991), 46 C.P.C. (2d) 192 (B.C.C.A.).
COUNSEL:
Catherine H. MacLean for plaintiff. Dr. Geoffrey Lester for defendant.
SOLICITORS:
Nelligan/Power, Ottawa, for plaintiff.
Deputy Attorney General of Canada for defen
dant.
The following are the reasons for judgment ren dered in English by
ROULEAU J.: The plaintiff, a member of the Public Service of Canada since January 8, 1973, was sus pended without pay from his position on August 11, 1989, while the Department conducted an enquiry into alleged misconduct.
In September, the plaintiff telephoned his superior and advised that due to the stress of the investigation he wanted to resign his position. A few days later, he was charged with fraud, theft, and breach of trust in relation to sums of approximately $94,000. By letter dated October 4, 1990, he resigned his position effec tive October 10, 1990. By return mail, the Depart ment advised him that it refused to accept his resigna tion "as a result of disciplinary matters before the department". On October 10, 1990, Mr. Basu resub mitted his resignation effective immediately on grounds of ill health. This was supported by a letter from his physician.
The investigation continued throughout the fall and eventually the plaintiff was discharged for cause, effective December 22, 1989 in accordance with sec tion 106 of the Public Service Terms and Conditions of Employment Regulations [SOR/67-118]. On April 29, 1991 he pleaded guilty in the Ontario Provincial Court to one charge of fraud over $1,000. He was fined, ordered to make restitution and placed on pro bation for 3 years.
A grievance with respect to the refusal was dis missed by the Public Service Staff Relations Board in March of 1990 but the issue as to acceptance or
refusal of a resignation was determined to be beyond the scope of their authority.
The plaintiff, by this action, is seeking relief by way of declaration that his superior was obligated to accept his resignation and that failure to do so was in breach of section 26 of the Public Service Employ ment Act [R.S.C., 1985, c. P-33], which reads as fol lows:
26. An employee may resign from the Public Service by giv ing to the deputy head notice in writing of the intention to resign and the employee ceases to be an employee on the day as of which the deputy head accepts in writing the resignation.
The plaintiff alleges that his superior, the deputy head, was under an obligation to accept his resigna tion and, had he done so, he would have been entitled to a'number of benefits including severance pay of $10,333.20. This amount was withheld because he was subsequently discharged for cause.
Counsel for the plaintiff submits that the deputy head had no authority to refuse the resignation, that it was effective when tendered and he was conse quently entitled to receive the severance pay.
Both parties submitted very profound and reasoned arguments on the right to resign at common law, the distinction between public and private sector employ ment and an approach to the interpretation and con struction of section 26 of the Public Service Employ ment Act.
Given the nature of the relief sought, I find it unnecessary to rule on the merits of these submis sions. Declaratory relief is discretionary. Schroeder J.A., of the Ontario Court of Appeal wrote in Cowan v. C.B.C., [1966] 2 O.R. 309, at page 314:
The jurisdiction is discretionary, and where specific relief other than a declaration is not claimed the jurisdiction has been said to be one exercised with great caution: Russian Commercial & Industrial Bank v. British Bank of Foreign Trade, Ltd., [1921] 2 A.C. 438 at p. 445, where Viscount Finlay stated: "It should be exercised sparingly 'with great care and jealousy' 'with extreme caution'."
It is obvious to me that the Court in exercising its discretion must have regard and must take into account a number of factors not the least of which is
the public interest. Public policy dictates that I bar the plaintiff's claim. The maxim that "no one should take benefit from his own wrong" has been adopted and followed for centuries. This principle was enun ciated quite succinctly in Cleaver v. Mutual Reserve Fund Life Association, [1892] 1 Q.B. 147 (C.A.), at page 156, where Fry L.J., said:
It appears to me that no system of jurisprudence can with rea son include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person ....This principle of public policy., like all such princi ples, must be applied to all cases to which it can be applied without reference, to the particular character of the right asserted or the form of its assertion.
More recently, the British Columbia Court of Appeal in Hall v. Hebert (1991), 46 C.P.C. (2d) 192 invoked the maxim and went on to elaborate that it would be manifestly unacceptable to fair minded or right thinking persons that a court would assist a plaintiff who has defied the law.
The case at bar is not one of a party seeking com pensation for an injury incurred by him while engag ing in illegal acts. On the contrary, this is a situation where he is actually trying to profit from his illegal ity. I can find no reason whatsoever that would jus tify a favourable exercise of my discretion and award the relief sought. To accede to such a request would be to encourage illegality, would serve a detrimental purpose and would ultimately be contrary to public policy.
This action is dismissed. Costs to the defendant.
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