Davis v. City of Montreal

and a first court of appeal has reversed that judgment, a second court of appeal should interfere with DEMRS the judgment on the first appeal, only if clearly satisfled that it is erroneous; Symington v. Symington (1). Now here the appellant has not only failed to satisfy us that the judgment of the court of appeal is erroneous, but the evidence on record establishes clearly raschereau that the judgment of the Superior Court in his favour J. could never be supported.

Mc Gibbon, Hogle d Mitchell. ADOLPHE

DAVIS alias DAVID

A

(PLAINTIFF) ..............................

PPELLANT; THE CITY OF MONTREAL

*June7?. (DEFENDANT)...................

.

RESPONDENT. ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).

Master and servant-Hirinq personal services-Municipal corporation- A ppointment of - Summary dismissal-Libellous resolution- Statute, interpretation of-Dfference in text of English and French versions-52 V. c. s. (Q.)-"A discrdtion "-"At pleasure." The Charter of the City of Montreal, Vict. section gives power to the City Council to appoint and remove such officers it may deem necessary to carry into execution the powers vested in it by the charter, the French version the Act stating that such powers may be exercised "d discretion," while the English version has the words "at its pleasure." Held, that notwithstanding the apparent difference between the two versions of the statute, it must be interpreted as one and the same enactment, and the City Council was thereby given full and unlimited power, in cases where the engagement has been made indefinitely to duration, to remove officers summarily and without previous notice, upon payment only of the amount of salary accrued to such officer up to the date of such dismissal. :-Taschereau, Gwynne, Sedgewick, King and Girouard JJ.

(1) L.

Bench for Lower Canada (appeal side) which set aside and varied the judgment of the Superior Court, District of Montreal in favour of the plaintiff.

By the judgment of the trial court the plaintiff was awarded $3,000 damages for wrongful and abrupt dismissal as an officer of the Corporation of Montreal and a further sum of $487.50, (the equivalent of his salary at the rate of his engagement from the date of the last payment made to him up to the institution of the action,) as salary and damages for the violation of the contract of engagement between him and the respondent.

On appeal the Court of Queen's Bench reversed the finding of the Superior Court as to the damages for wrongful dismissal, and reduced the other item to $257.50, amount of salary remaining unpaid at the time of his dismissal.

A statement of the circumstances under which the action was brought ant of the facts and questions at issue, will be found in the judgment reported. The resolution of the Council of the City of Montreal dismissing the appellant was in the following terms:- "Whereas it appears by the report of the Sub-Committee, that Adolphus Davis, the Superintendent of the Water Works Department, Montreal, committed a serious fault by making unfounded charges against his assistant Mr. Laforest, and especially by accusing the latter of incompetency;

"Whereas in said report, said Davis is charged with negligence towards his committee;

"Whereas it appears that said Davis, since he is employed by the city, has refused and still refuses, systematically and without any cause whatever, to recognize Mr. Laforest as his assistant, and tends to render inefficient the administration of the Water Department;

"Be it resolved to dismiss said Davis as Superin- VE tendent of the Montreal Water Works, and that he be hereby dismissed as such."

On the appellant's appointment his salary was fixed at a certain rate per year. His engagement was therefore a yearly engagement subject to the ordinary rules as to renewals and termination; Arts. 1609, 1642, 1667, 1670 C. Appellant is entitled to his full salary up to the time he brought action, and further recourse for whatever balance he can claim under his contract.

No unusual privilege arises from the respondent's powers under Vict. ch. 79, sec. 79. The right of dismissal given by the statute cannot be exercised arbitrarily; it must be done according to the laws applicable to the lease and hire personal services.

In the exercise of all discretion thus given, the rules of reason and justice must be followed. Rooke's Case (1) ; Keighley's Case (2) ; Lee v. and Torrington Junction Railway Co. ; and dismissals made in a manner legal and regular and not capriciously. Substantial reasons must be given. In re Taylor (4); Dohertqy. Allman (5); Wilson v. Rastall There is a difference between the term " at pleasure " used in the English version of this section 79 and "d discrdtior " in the French version,-and it is quite evident that the French text expressed the intention of the Quebec legislature with the greatest certainty. Section 79 is the reproduction of section 64 of ch. 51 of 37 Vict., (Que.) under which Dugdale v. The City of Montreal was decided.

This disposition did not give the right to dismiss servants, unfairly, without notice and in violation of contract. The Montreal Turnpike Trustees v. Rielle decided under or a similar clause of the charter of the Montreal Turnpike Trustees supports this contention, as also does Brown v. City of Montreal (2).

The respondents have failed to justify their conduct and ought to be mulct in damages on account of the libellous terms of their resolution, which was malicious and based only upon the hostility of certain members of the council towards the appellant.

It has not been proved that the city council or its members who voted for the motion of dismissal were actuated by malice, but the council appears to have acted in good faith. The proper interpretation of section 19 of the city charter (52 Vict. ch. 79) gives the council power to appoint and remove officers at its pleasure.

We have to deal here with a commission conferred during pleasure, called by the authors ad nutum or durante beneplacito. Full power is given to the employer to remove the employee for reasons that may be good or bad, and the value of which cannot be scrutinized by the courts because the employee or officer accepts the position on those terms. Houseinan v. The Commonwealth Angell & Ames on Corporations, sec. 426, and authorities quoted.

Dillon on Municipal Corporations, (4 ed.) secs. 249, 250 and cases cited in note 1 Beach on Public Corporations, sec. 189.

Harrison's Municipal Manual, (5 ed.) p. 205 and cases cited under note

No damages have been proved by appellant.

J.-The appellant, who held the position of superintendent of the water-works in the city of s Montreal, having been summarily dismissed, has taken

V.E an action against the city for damages and a portion of his salary, pretended to have become due subsequently to the date of his dismissal.

The facts of the case may be briefly stated as follows :-On the first of August,

1892, the appellant was appointed by the city council as superintendent of the water-works.

At that time nothing was mentioned of his salary, but two months later, on the third day of October, a resolution was passed by the council fixing it at $3,500 per annum.

On the twenty-first day of May, 1895, the city council passed a resolution dismissing him.

Hence the present action, containing a number of allegations, to the effect that the council were prompted by pure malice and hostility towards the appellant; that a conspiracy had been got up by certain members of the council with the object of getting rid of him ; that an investigation had taken place before the water committee with the determination on the part of its members to obtain his dismissal ; that Laforest, his assistant, with a view superseding him, had influenced the committee in every possible way, and that, the dismissal being unjustifiable, he, (the appellant), was well founded in asking

$50,000 damages and $487.50 for salary.

The answer of the respondent to those allegations consists in stating that the agreement entered into between the city and the appellant on the first of August,

1892, was vague and uncertain; no time was therein mentioned for its duration, and even no salary of any kind was determined; that by 52 Vict. ch. 19, sec. 79, that this privilege of nominating and dismissing officers is absolute.

The Superior Court gave judgment in favour of the appellant for $3,000 damages and $487.50 salary. In iz.

the court of appeal the action was dismissed in toto as to the damages claimed and judgment entered but for the salary that had accrued at the time of the dismissal. There is no cross appeal, and the amount so granted to the plaintiff in the court of appeal is not in controversy here.

The plaintiff's appeal must in my opinion be dismissed.

As to the damages, there is no evidence whatever in the record that the corporation acted through malicious motives when passing the resolution to dismiss the appellant. There is nothing that I can see in the wording of that resolution of a nature at all injurious to the appellant's character and reputation, either as an engineer or as a private citizen. As to the claim for salary the appeal must also fail. When the legislature empowered the corporation to remove its officers at its pleasure, it must have intended to vest it with the power claimed by it in this case.

The statute would otherwise have no meaning. It must be interpreted as giving powers which otherwise would not lie in the corporation.

The appellant has attempted in vain to have us find a difference this point between the French and English versions of the statute. There would appear at first sight to be one, but we have to interpret both as one and the same enactment, not as two different ones.

And the statute would mean nothing if the appellant's contention as to the French vord discrdtion as differing from the English version " at pleasure " was to prevail. Chief Justice Sir Alexandre Lacoste's reasoning for the court