Date: 20040624
Docket: T-1513-03
Citation: 2004 FC 908
Ottawa, Ontario, Thursday, the 24th day of June 2004
Present: The Honourable Mr. Justice François Lemieux
BETWEEN:
AMRAM ELKAYAM
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
(Delivered from the bench at Montréal on May 10, 2004, and amended)
[1] These reasons are those I delivered from the bench at Montréal on May 10, 2004, though slightly altered for reasons of style.
[2] I will allow the respondent's motion that this application for judicial review be dismissed on the ground that it has become moot and that in the circumstances I see no reason to exercise the Court's discretion to allow this application to be heard and decided despite having become moot. The background is as follows.
[3] This is an application for judicial review filed by the applicant pursuant to section 7.1 of the Public Service Employment Act from a decision on June 13, 2003, by Gérald Leblanc, Investigation, Conciliation and Mediation Officer, dismissing the complaint by Mr. Elkayam that the selection board responsible for competition 00-DND-0C-MTL-933601, held to staff GL-EIM-10 electrician positions at the Longue Pointe Base, manipulated the assessment of candidates so as to cause them to fail in the competition.
[4] You submitted your candidacy in a public competition for the staffing of one or more term positions. On May 8, 2000, you took part in a written test of your knowledge.
[5] On May 17, 2000, the applicant was informed that he had not achieved the minimum passing grade, and as a result of this information you filed your complaint with the Public Service Commission.
[6] Before the matter was investigated by Mr. Leblanc, we know your complaint was filed with the recourse officer Garceau, and that Martineau J. quashed his decision by consent.
[7] On June 13, 2003, after analyzing the facts, Mr. Leblanc concluded your complaint was not valid and there was no basis for any further involvement by the Commission in your case.
[8] The respondent raised as a preliminary point the fact that your application for judicial review was moot, since no appointment was made from the eligibility list drawn up following the public competition in which you submitted your candidacy. This observation is contained in Mr. Leblanc's reasons (respondent's record, vol. 1, page 13).
[9] The two candidates appearing on the eligibility list following the public competition had also succeeded in another competition for full-time electrician positions at the Longue Pointe Base.
[10] Your application for judicial review became moot as a result of there being no appointment to the term position pursuant to public competition 00-DND-0C-MTL-93360, together with the fact that the eligibility list resulting from that competition expired on July 7, 2002. That eligibility list was only valid for two years.
[11] Accordingly, in view of these facts no effective remedy sought by you can result from your application for judicial review.
[12] This conclusion meets the requirements of the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, where Sopinka J. wrote at paragraph 15:
¶ 15 The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.
[13] I put to you the question [TRANSLATION] "What do you want the Court to decide?" and you answered two things: first, to quash Mr. Leblanc's order; and second, to allow you to sue the Public Service Commission for damages.
[14] I will tell you that you cannot seek damages in an application for judicial review. Here the precedents are very well established: in judicial review damages are not possible. What you must do is bring an action under section 17 of the Federal Court Act, an action against the federal government on the ground you mention.
[15] Quashing Mr. Leblanc's decision would be of no practical value, I repeat, because no appointment was made to the positions concerned in the public competition and the eligibility list has expired and is no longer valid. In other words, if the Department of National Defence wanted to fill term electrician positions at Longue Pointe, the Department would have to hold a new competition.
[16] For these reasons, I think your application for judicial review has become moot and, in accordance with the tests laid down by Sopinka J. in Borowski, supra, I see no reason to justify the exercise of my discretion to continue these proceedings. These three tests are well known.
ORDER
This application for judicial review is dismissed without costs on the ground that it has become moot.
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"François Lemieux"
Judge
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Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1513-03
STYLE OF CAUSE: Amram Elkayam v. A.G.C.
PLACE OF HEARING: Montréal
DATE OF HEARING: May 10, 2004
REASONS FOR ORDER: Lemieux J.
DATED: June 25, 2004
APPEARANCES:
Amram Elkayam FOR THE APPLICANT
Mariève Sirois-Vaillantcourt FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Elkayam (himself) FOR THE APPLICANT
64, rue Gauthier
Longueuil, Quebec
J4L 1Y1
(450) 674-4257
Department of Justice FOR THE RESPONDENT
Complexe Guy-Favreau
200, boul. René-Lévesque ouest
Tour est, 5e étage
Montréal, Quebec
H2Z 1X4
(514) 496-9234
Fax (514) 283-3856
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