Sheldrick v. Canada, (1986) 1 F.T.R. 222 (TD)

• Judge: Strayer, J.
• Court: Federal Court (Canada)
• Case Date: January 22, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1986), 1 F.T.R. 222 (TD)

Sheldrick v. Can. (1986), 1 F.T.R. 222 (TD)

MLB headnote and full text

John G. Sheldrick v. Her Majesty The Queen

(T-1056-83)

Indexed As: Sheldrick v. Canada

Federal Court of Canada

Trial Division

Strayer, J.

January 31, 1986.

Summary:

Sheldrick began working for the Federal Government in 1965. On December 14, 1981, he turned 65. Prior to that date he reached an agreement with the Federal Government to extend his employment for two years after he became 65, until December 13, 1983. The Government terminated his employment on August 27, 1982. Sheldrick brought an action against the Government for a declaration that he was terminated unlawfully and for damages. The Government argued that the termination was lawful pursuant to s. 28(11) of the Public Service Superannuation Regulations. The Federal Court of Canada, Trial Division, held that s. 28(11) permitted dismissal only for reasons attributable to age and since Sheldrick was terminated because of redundancy, his dismissal was not lawful under s. 28(11). The court awarded damages as agreed by the parties.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application of - To events prior to effective date of s. 15 of Charter - Section 28(11) of the Public Service Superannuation Regulations allowed the Federal Crown to dismiss certain employees after age 65 - The Federal Court, Trial Division, refused to consider a dismissed employee's argument that s. 28(11) was contrary to s. 15 of the Charter, where the employee's dismissal occurred before s. 15 came into operation on April 17, 1985 - See paragraph 14.

Crown - Topic 1088

Contracts with Crown - Employment contracts - Power to dismiss - After age 65 - Public Service Superannuation Regulations - Section 28(11) of the regulations provided that an employee whose job was extended past age 65 could be terminated at any time for reason of age alone on 90 days' notice - The Federal Court, Trial Division, interpreted s. 28(11) to mean that termination was authorized where an employee who was over 65 was unable to perform his job adequately for reasons attributable to age - The court held therefore that an employee over age 65 whose job was extended was unlawfully dismissed when his job was terminated for redundancy.

Interest - Topic 5008

Interest as damages - Prejudgment interest - Crown liability for - The Federal Crown unlawfully dismissed an employee - The employee was granted judgment for over $70,000 - The Federal Court, Trial Division, awarded interest as of the date of judgment - The court stated that pursuant to ss. 35 and 40 of the Federal Court Act it was precluded in actions in contract from awarding prejudgment interest against the Crown, unless such interest was stipulated by contract or provided for by statute - See paragraph 16.

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose of regulation authorized by empowering statute - Public Service Superannuation Regulations, s. 28(11) - Section 28(11) provided that an employee whose job was extended past age 65 could be dismissed at any time for reason of age only on 90 days' notice - The Federal Court, Trial Division, held that s. 28(11) was not ultra vires and was within the regulation making power of the Governor in Council - See paragraph 15.

Cases Noticed:

R. v. MacKay [1980] 2 S.C.R. 370; 33 N.R. 1, refd to. [para. 11].

Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202; 40 N.R. 159, refd to. [para. 11].

R. v. Robertson, [1972] F.C. 796 (F.C.A.), dist. [para. 15].

Eaton v. R., [1972] F.C. 185, refd to. [para. 16].

Corpex (1977) Inc. v. Canada, [1982] 2 S.C.R. 674; 50 N.R. 197, refd to. [para. 16].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 1(b), sect. 2 [para. 11].

Canadian Charter of Rights and Freedoms, sect. 15 [paras. 8, 14].

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sect. 35, sect. 40 [para. 16].

Public Service Employment Act, R.S.C. 1970, c. P-32, sect. 24 [para. 9].

Public Service Superannuation Regulations, C.R.C., vol. 14, c. 1358, sect. 28(11).

Counsel:

Appearances: R.J. Kealey, Q.C., for the plaintiff;

R.P. Hynes, for the defendant.

Solicitors of Record:

Kealey & Lafrange, Ottawa, Ontario, for the plaintiff;

Frank Iacobucci, Q.C., Deputy Attorney General of Canada, for the defendant.

This case was heard at Ottawa, Ontario, on January 22, 1986, before Strayer, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on January 31, 1986: