Date: 20020325
Docket: T-2232-01
Neutral citation: 2002 FCT 332
Ottawa, Ontario, March 25, 2002
BEFORE: PELLETIER J.
BETWEEN:
CHARLOTTE RHÉAUME
Plaintiff
- and -
ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
[1] Charlotte Rhéaume, the plaintiff, appealed the order by which prothonotary Morneau struck out her application for judicial review. The prothonotary concluded that the application was moot in light of the establishment of an appeal board by the Public Service Commission to hear the plaintiff's appeal, as she had requested in her application. The plaintiff argued that her application for judicial review claimed various remedies and was not limited to a claim for the establishment of an appeal board, and furthermore that the so-called appeal board was a nullity.
[2] The origins of this case go back to an appeal document dated October 30, 2001 which the plaintiff forwarded to the Public Service Commission. In that document she purported to appeal all appointments to the position of AU-02 in the Technical Interpretation Service throughout Canada after January 1, 1999. The plaintiff objected to certain organizational changes which resulted in the creation of positions designated AU-02, none of which was in the province of Quebec.
[3] The power to appeal the appointment of a candidate to a position is set out in s. 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33:
21. (1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.
(1.1) Where a person is appointed or about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service by a process of personnel selection, other than a competition, any person who, at the time of the selection, meets the criteria established pursuant to subsection 13(1) for the process may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or theirrepresentatives, shall be given an opportunity to be heard.
21. (1) Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
(1.1) Dans le cas d'une nomination, effective ou imminente, consécutive à une sélection interne effectuée autrement que par concours, toute personne qui satisfait aux critères fixés en vertu du paragraphe 13(1) peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
[4] The appeal document filed by the plaintiff was brought to the attention of Françoise Huneault, Deputy Registrar at the Public Service Commission. In a letter to the plaintiff, dated November 19, 2001, Ms. Huneault decided that no further action would be taken on her appeal. The relevant portions of the letter are set out below:
[TRANSLATION]
After reviewing your appeal document, we note that you did not identify the specific appointments which you wished to appeal. Further, it would seem that the appointments which are ostensibly in issue occurred some time ago as a result of which they are not subject to your right of appeal or to your right to complain to the Public Service Commission.
As of November 1, 1999, the Canada Customs and Revenue Agency is no longer subject to the Public Service Employment Act and so the Public Service Commission has no jurisdiction to intervene in this matter.
Consequently, no further action will be taken on your appeal and the file will be closed. I suggest you contact the Agency for information as to your remedies.
[5] Faced with this refusal to hear her appeal, the plaintiff contacted the Commission again, asking for reconsideration of the decision of November 19, 2001. She did this by letter dated December 3, 2001. But the time limits for filing an application for judicial review threatened to expire before the Commission could reply to this request. On December 19, 2001, the plaintiff filed her application for judicial review of Françoise Huneault's decision of November 19, 2001. She claimed the following relief:
[TRANSLATION]
ALLOW this application for judicial review;
DECLARE that the plaintiff's [classification] and appointment is within the jurisdiction of the Public Service Commission of Canada;
DECLARE that the plaintiff's remedies arise under the Public Service Employment Act and Regulations;
DECLARE that the selection and appointment process was in breach of the Public Service Employment Act and Regulations and the Canadian Charter of Rights and Freedoms;
DECLARE that the plaintiff's appeal is not subject to any time limits;
DECLARE NULL AND VOID the two decisions rendered by the Public Service Commission of Canada on November 19, 2001;
ORDER the Public Service Commission of Canada to hear the plaintiff's appeal filed on October 30, 2001;
THE WHOLE WITH COSTS.
[6] Following her request that the decision be re-considered, the Public Service Commission again contacted her in a letter dated January 11, 2002, indicating that an appeal board would be set up to decide whether it had jurisdiction to hear her appeal. The appeal board would proceed by way of a teleconference call to be held on January 31, 2002. Based on the fact that an appeal board had in fact heard the appeal, on February 13, 2002, the defendant filed a motion to strike claiming the following:
[TRANSLATION]
1. An order striking the application for judicial review of the decision by Françoise Huneault, Deputy Registrar of the Proceedings Branch of the Public Service Commission of Canada, rendered on November 19, 2001 informing the plaintiff Charlotte Rhéaume that no further action would be taken on her appeal and that the file would be closed;
2. Alternatively, if the application to strike the application for judicial review is dismissed, a 20-day period from receipt of the order to be made on this motion for serving and filing the reply affidavits . . .
[7] Counsel for the defendant alleged at the hearing of her motion to strike that Ms. Huneault's decision was not a decision within the meaning of s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, and that in any case the application for judicial review is moot since the creation of the appeal board gave the plaintiff what she was claiming in her application for judicial review.
[8] The plaintiff, for her part, did not agree that her application for judicial review was moot. She argued that, pursuant to administrative circular of the Public Service Commission, Ms. Huneault had all the powers of an appeal board. In her submission, a second appeal board cannot take the place of an initial appeal board, so that the creation of the appeal board was a nullity. Further, she noted that several of the remedies she was claiming were not within the jurisdiction of an appeal board. The declarations of nullity and the remedies for infringement of the Canadian Charter of Rights and Freedoms could only be granted by a trial judge.
[9] The prothonotary dealt with the matter and struck out the plaintiff's application for judicial review. He found that the plaintiff was not entitled to treat Ms. Huneault's decision as the decision of a board of appeal when she demanded that such a board be established in her application for judicial review. He therefore concluded that the application for judicial review was moot in view of the establishment of an appeal board by the Commission.
[10] The plaintiff appealed the prothonotary's decision. She noted that the Federal Court Rules (1998) SOR/98-106 do not contemplate the possibility of filing a motion to strike an application as they do in the case of an action. She relied on David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (F.C.A.) to support her argument that the motion to strike lacked any basis in the Federal Court Rules and the Federal Court Act. She dismissed the establishment of the Appeal Board, as in her view, it was an attempt to supplant a first Appeal Board by a second. She pointed out that she did not claim the establishment of an Appeal Board until after she had obtained the various declarations of invalidity which she sought. It was her view that the judge hearing the application would instruct the Appeal Board to give effect to the declarations of invalidity which he would make. In short she claimed the right to be heard on the merits of her application for judicial review.
[11] The defendant repeated the arguments made before the prothonotary and maintained the correctness of the decision.
[12] It is true that David Bull Laboratories (Canada) Inc. sets out the reasons why motions to strike are not to be encouraged in dealing with applications for judicial review. It is better to respect the summary nature of such applications by submitting all arguments against the application at one time. However, David Bull does leave open the possibility of striking an application which is devoid of any chance of success:
This is not to say that there is no jurisdiction in this Court or through Rule 5 by analogy to other rules to dismiss in secondary manner a notice of motion which is so clearly improper as to be bereft of any chance of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion.
[13] So it cannot be said from the outset that the prothonotary lacked jurisdiction to make the order at issue in this appeal.
[14] In the course of the argument it became clear that the plaintiff had a particular view of the scope of her application for judicial review. She believed that the application for judicial review of Ms. Huneault's decision allowed her to put into issue all aspects of the appointment and competition system in effect at the Agency. However, Ms. Huneault's decision did not deal with the substance of the appeal, but only with the plaintiff's right to appeal and the Commission's power to hear it. The judicial review of such a decision could only address three very specific points:
- can the plaintiff rely on s. 21 of the Public Service Employment Act?
- did the Commission have jurisdiction to hear an appeal from a person who is an employee of the Canada Customs and Revenue Agency?
- did Ms. Huneault have jurisdiction to dismiss the plaintiff's appeal without referring it to an appeal board?
[15] In the event that the plaintiff were successful, the Court would not rule on the merits of the appeal, as the jurisdiction to hear and decide appeals is conferred by the Act upon the appeal board. The Court cannot decide in its place. It follows that questions of nullity and invalidity would not be decided by the Court in disposing of the application for judicial review of Ms. Huneault's decision. The fact that certain relief claimed by the plaintiff is not within the appeal board's jurisdiction does not mean that those questions can therefore be raised in the application for judicial review of Ms. Huneault's decision. The fact that the Trial Division of the Federal Court of Canada may have jurisdiction to decide some of these points does not mean that the plaintiff can address them through an application for judicial review of a decision on the Commission's jurisdiction.
[16] Ultimately, the only remedy which the Court could give the plaintiff in the event of a favourable decision would be to refer the case back to the Commission for her appeal to be heard. When the Commission agreed to establish an appeal board to consider her appeal, the plaintiff already had everything which the Court could give her. It is in this sense that her application for judicial review was moot.
[17] The plaintiff questioned this conclusion by objecting to the creation of the appeal board. In her submission, Ms. Huneault had all the powers of an appeal board, which meant that there already was an appeal board in existence. The plaintiff correctly argued that one appeal board cannot take the place of another. In the plaintiff's submission, the statutory basis of the proposition that the Deputy Registrar has all the powers of an appeal board is an administrative circular prepared by the Commission to enable its counsel to answer questions put to them by judges of the Federal Court in judicial reviews of appeal board decisions. The circular suggests two means of proceeding when jurisdiction is in issue (and I quote):
[TRANSLATION]
First, the Registrar, who has all the powers of an appeal board, may after hearing the parties make a decision on jurisdiction.
[18] Neither the plaintiff nor counsel for the Department of Justice could refer the Court to the section of the Act or Regulations which might justify such a conclusion. In view of s. 23 of the Public Service Employment Regulations (2000), SOR/2000-80, which states that on receipt of an appeal document the Commission shall create an appeal board consisting of one or more members of the Commission, it cannot be said that a registrar could assume the powers of a member of the Commission or take the place of such a member. Ms. Huneault's decision is a decision which can be the subject of judicial review, but it is not a decision by an appeal board which could subsequently prevent the creation of an appeal board.
[19] It follows from the foregoing that the application for judicial review of Ms. Huneault's decision is moot, as the creation of an appeal board to hear the plaintiff's appeal gave her everything the Court could have given her.
[20] In Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, the Court of Appeal ruled on the standard of review of a prothonotary's discretionary decision. It stated its conclusion as follows:
[para. 95] Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raised questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.
[21] The decision in question is one which is "vital to the final issue of the case", which means that the Court must exercise its own discretion. As the foregoing analysis indicates, the Court agrees with the conclusion arrived at by the prothonotary. There is no reason to intervene.
ORDER
The plaintiff's motion filed on March 5, 2002 is dismissed.
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J.D. Denis Pelletier
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-2232-01
STYLE OF CAUSE: Charlotte Rhéaume
and
Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 18, 2002
REASONS FOR ORDER AND ORDER BY: PELLETIER J.
DATED OF REASONS: March 25, 2002
APPEARANCES:
Charlotte Rhéaume FOR THE PLAINTIFF
Diane Pelletier FOR THE DEFENDANT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario
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