CLIFFORD B REILLY Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal from the Supreme Court of Canada, which affirmed a decision of Maclean, J., in the Exchequer Court of Canada, dismissing a petition of right in which the present appellant, Mr. Reilly, was the suppliant. The suppliant's case was that, in pursuance of the Pensions Act, he had on 16 August 1928, been appointed a member of the Federal Appeal Board for a term of five years; that, in breach of contract, he had been dismissed in October 1930, and he claimed damages. There is no dispute as to the facts. By an Act to Amend the Pensions Act, Chap. 62 of the Statutes of Canada, 1923, there was constituted a Board under the title, "The Federal Appeal Board," consisting of not less than three nor more than seven members appointed by the Governor-in-Council on the recommendation of the Minister of Justice. One of the members was to be appointed by the Governor-in-Council Chairman of the Board, " and shall hold that office during pleasure, and any member may be removed for cause at any time by the Governor-in-Council." Of the members first appointed to the Board other than the Chairman one-half were to be appointed for a term of two years, and the others for a term of three years, and they were to be eligible for appointment for such further terms not to exceed five years as the Governor-in- Council may deem advisable. The Chairman was to be paid a salary of seven thousand dollars a year; the other members six thousand, to be paid monthly out of any unappropriated money forming part of the Consolidated Revenue Fund of Canada. R.S.C. 1927, c. 157, S. 50.

(2.) The appellant, Mr. Reilly, was in 1923 a practising member of the Bar of Quebec. On 17 August 1923, in pursuance of an order in Council, he was appointed by letters patent under the Great Seal of Canada a member of the Federal Appeal Board for the term of three years. The appointment was extended by Orders in Council of 4 June 1926 and 18 August 1927, and by an Order in Council of 16 August 1928, was extended for a further five years, provided that the appointment might be terminated at any time in the event of the reduction in the Board's work to an extent sufficient to permit of its performance by fewer Commissioners. This event never arose. But on 30 May 1930, the Canadian Legislature passed "an Act to Amend the Pension Act," Statutes of Canada, 1930, c. 35. By S. 14 of that Act S. 50, Pensions Act, as amended by subsequent Acts, was repealed, and by S. 9 a Pensions Tribunal was constituted, consisting of a Chairman and eight other members, with salaries of $7,000 and $6,000 respectively, to hold office for ten years, subject only to earlier removal for cause. By S. 10 a Pension Appeal Court was constituted, consisting of a President and two other members. Their tenure was the same as that of the members of the Pension Tribunal; their salaries were to be respectively $8,000 and $7,000 a year Mr. Reilly's office was thus abolished: neither he nor any of the members was appointed to the new Tribunal or Court; nor was any compensation paid to any of them. In October 1930, Mr. Reilly was requested to vacate the premises he had occupied in pursuance of his office.

(3.) The petition of right is founded on averments that there was a contract between the suppliant and the Crown and that the contract had been broken. Both Courts in Canada have decided that by reason of the statutory abolition of the office Mr. Reilly was not entitled to any remedy, but apparently on different grounds. Maclean, J., concluded that the relation between the holder of a public office and the Crown was not contractual. There never had been a contract: and the foundation of the petition failed. Orde, J.'s judgment in the Supreme Court seems to admit that the relation might be at any rate partly contractual; but he holds that any such contract must be subject to the necessary term that the Crown could dismiss at pleasure. If so, there could have been no breach.