Emms v. The Queen et al.

Emms v. The Queen et al.

Section 30(2) of the Public Service Employment Regulations is ineffective (ultra vires); therefore the purported extension of probation was invalid, the rejection purportedly during that extension was not legally justified, and the appropriate remedy is damages rather than a declaration that the plaintiff continues as an employee.

Citation
[1979] 2 SCR 1148
Parties
Plaintiff/appellant: John A. Emms; Defendant/respondent: Her Majesty The Queen (represented by Deputy Minister of Indian Affairs and Northern Development and the Public Service Commission)
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
2 October 1979
Procedural Posture
Appeal / On Appeal From the Federal Court of Appeal to the Supreme Court of Canada
Outcome
Appeal allowed; judgment of the Federal Court of Appeal set aside; Trial Division judgment restored but varied
Legal Topics
Ultra Vires, Probationary Employment, Declaratory Relief, Damages, Res Judicata
Source Language
English
Administrative Law Public Employment Law Public Law Ultra Vires Probationary Employment Declaratory Relief Damages Res Judicata

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Parties

John A. Emms

Plaintiff/appellant

Her Majesty The Queen (represented by Deputy Minister of Indian Affairs and Northern Development and the Public Service Commission)

Defendant/respondent

Procedural Posture

Appeal / On Appeal From the Federal Court of Appeal to the Supreme Court of Canada

Legal Issues

  1. 1 Whether s.30(2) of the Public Service Employment Regulations is intra vires
  2. 2 Whether an extension of probation without the written notice required by s.30(3) is valid
  3. 3 Whether an ineffective rejection on probation amounts to a dismissal

Ratio Decidendi

Section 30(2) of the Public Service Employment Regulations is ineffective (ultra vires); therefore the purported extension of probation was invalid, the rejection purportedly during that extension was not legally justified, and the appropriate remedy is damages rather than a declaration that the plaintiff continues as an employee.

Court Disposition

Appeal allowed; judgment of the Federal Court of Appeal set aside; Trial Division judgment restored but varied

Orders

  • Appeal allowed
  • Judgment of the Federal Court of Appeal set aside