Ayangma v. Canada, 2002 FCT 79

                                                                                                                                       Date : 20020125

                                                                                                        Docket : T-195-01

                                                                                                            Neutral citation : 2002 FCT 79

BETWEEN:

                                                 Dr. NOËL AYANGMA

                                                                                                                        Applicant

                                                              - and -

                                            HER MAJESTY THE QUEEN

                                                                                                                    Respondent

                                                REASONS FOR ORDER

MacKAY J.

[1]         The plaintiff, Dr. Noël Ayangma, seeks show cause orders pursuant to Rule 466(b) and 467 of the Federal Court Rules, 1998, directing Her Majesty the Queen, represented by three of her Departments, (i.e., Health and Welfare Canada, the Public Service Commission and the Treasury Board), and unnamed senior managers and executive officials, and three named employees, to answer, if they can, why they should not be held in contempt of this Court.

[2]         The motion arises following commencement of an action by the applicant against Her Majesty the Queen in which Dr. Ayangma seeks damages in the amount of $2,000,000.00, alleging harm from wrongful process followed by Health Canada and the Public Service Commission which prevented his appointment to a position within Health Canada for which he had applied in response to an advertised public competition.

[3]         Dr. Ayangma, who is not a lawyer, acts for himself both in the action and in relation to the application now before the Court, heard in July 2001. Both the action and this application were commenced after he had successfully appealed the appointment of a third party to the position he had applied for, and following his refusal to accept an opportunity to participate in a new competition for the position and in other competitions for other positions, as provided for by the decision of the Public Service appeal board concerned with his appeal.

[4]         The contempt alleged here is the alleged failure of the defendant and others designated to comply with an order of the Canadian Human Rights Tribunal, which was previously registered with this Court on March 24, 1997 as T-573-97 pursuant to section 57 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended. That order [hereinafter referred to as the "NCARR Order"], arose from a decision of the Canadian Human Rights Tribunal issued in the matter of the National Capital Alliance on Race Relations (NCARR) v. Canada (Health and Welfare), [1997] C.H.R.D. No. 3. By that order, the Tribunal required Health Canada to address a number of problems within its staffing process and prescribed a series of corrective measures and monitoring procedures designed to enable visible minority members to have promotional opportunities within that department in a manner consistent with section 10 of the Canadian Human Rights Act.

[5]         The parties to the NCARR Order were the National Capital Alliance on Race Relations (NCARR), the Canadian Human Rights Commission, and Her Majesty the Queen as represented by Health and Welfare Canada, the Public Service Commission and the Treasury Board. In the proceedings before the Tribunal, the Professional Institute of the Public Service of Canada participated as an interested party.

[6]         That order provided for regular monitoring of processes within Health Canada to assess the department's measures to implement the terms of the order. In addition to departmental reviews, monitoring was conducted by the Canadian Human Rights Commission. The Secretary General of the Commission wrote on June 6, 2001 to the Deputy Minister, stating in part:

Analysis of Health Canada's reports shows that the Department continues to work toward meeting the requirements set out in the Tribunal Order and that members of visible minority groups were appointed to the senior levels identified in temporary measures one to six of the Order at rates equal to or greater than the rates specified in the Order. In fact, after three years of implementation, Health Canada has attained the representation goal for visible minorities in the permanent EX/Senior Management category and permanent feeder levels of the Administration and Foreign Services category as specified under Temporary Measures 1 and 2 of the Order.

The Commission also notes that Health Canada has completed a mid-term review of the implementation of the Tribunal decision and ... the Report does go on to say that changes which are under way at this time should have the desired effects if the Order effort is sustained. The Commission wishes you success on your endeavours to achieve a representative workforce.

[7]         Sometime after the order of the Tribunal was made and filed with the Court, Dr. Ayangma became an employee of Health Canada. Within the Department, he became a member of its Committee that monitors compliance with the NCARR Order and he also served as chair of the Atlantic Region Advisory Committee on Diversity.

[8]         In June 1995, the position of Director, Program Policy and Planning, within the Department became vacant when the incumbent accepted a term assignment with another organization. It was filled by temporary appointments and by an acting appointment in 1997. Thereafter, three extensions of acting appointments were made without competition. In March 2000, Health Canada requested arrangements for the Public Service Commission to provide for internal staffing of the position.    The request specifically asked that the terms of the NCARR Order be complied with, in particular, a term providing that "selection boards for positions within Health Canada are to include representation of a member of a visible minority group, regardless of the representation of the candidate pool, wherever possible".

[9]         The position was advertised in April 2000 and Dr. Ayangma applied for it indicating that he was black, a member of a visible minority group, and that his primary language for correspondence, examination and interview was French. Ultimately, a short list of five candidates led to interviews in May and early June. When Dr. Ayangma was interviewed, he concluded that only one member of the Board was capable of conducting an interview in French and in his view the selection board did not include a visible minority member, although it is noteworthy that two of three members of the selection board were persons of aboriginal origin in Canada.

[10]       Dr. Ayangma appealed to the Public Service appeal board about the selection process. The board heard the appeal on October 31, 2000. It allowed the appeal, prescribing corrective measures, including a new competition for the position and opportunity for the plaintiff to compete for that, and for other positions. The plaintiff did not participate in the new, or any other, competition.

[11]       Thereafter, Dr. Ayangma commenced a judicial review of the appeal board's decision (Court File T-2237-00) but the matter was not pursued. Rather, he commenced an action in this file (T-195-01) under the Federal Court Act, R.S.C. 1985, c. F-7 as amended, claiming damages in respect of the same events. As an aspect of that action, he also now seeks show cause orders in this application on the basis of a perceived breach of the NCARR Order as registered in this Court, by Her Majesty, represented by the three named departments, by unnamed executives, and by the three individuals named, two of whom were members of the selection committee for the staffing competition in 2000 which is the focus of Dr. Ayangma's complaint. The third named person had represented the Public Service Commission before the appeal board.   

[12]       In seeking dismissal of the applicant's order, counsel for Her Majesty urges several grounds including a lack of standing on the part of the applicant to bring this application. Procedural difficulties are also raised: of seeking to enforce an order filed in Federal Court File T-573-97 by an interlocutory application in this action (T-195-01), and of issuing orders here sought to any of the parties indicated to be respondent parties in contempt proceedings.

Analysis

[13]       On the matter of standing, following the hearing of this application, Dr. Ayangma made written representations to the Court referring to and relying upon the decision of the Federal Court of Appeal in Harris v. Canada, [2000] 4 F.C. 37 (C.A.), which upheld the decision of Mr. Justice Muldoon, acknowledging that the plaintiff had public interest standing to bring an action alleging that the Ministry of National Revenue acted illegally, or improperly or for ulterior motives, by providing preferential treatment to a particular taxpayer. Dr. Ayangma also forwarded a copy of the recent decision of the Canadian Human Rights Tribunal in the matter of Chopra and the Canadian Human Rights Commission v. the Department of National Health and Welfare, [2001] CHRD, No. 20, dated August 13, 2001.

[14]       Even if Dr. Ayangma is a member of a visible minority, which was intended to benefit from the NCARR Order, he does not have standing as a party to the proceedings leading to that order. In my opinion, he does not have public interest standing either. As the Court of Appeal points out in Harris, supra, the conditions under which a public interest plaintiff may challenge the limits of administrative authority, purported to be exercised in accordance with statutory delegation, include: where a strong public interest issue is raised before the court, an interest in which the plaintiff has a real concern, and where there is an absence of other reasonable and effective means of bringing the issue forward for resolution.

[15]       As I understand the situation here, Dr. Ayangma has already instituted proceedings before the Public Service appeal board to have set aside the competition which, in his view, was not in accord with the terms of the NCARR Order.    That step has led to successful results, even though Dr. Ayangma did not later take advantage of the renewed opportunity to seek the appointment. The cancelling of the original competition, and the scheduling of another to replace it, clearly seeks to remedy inadequacies of the original competition, including any failure to follow the NCARR Order so far as it may be perceived to relate to the competition's procedures. In my opinion reasonable and effective processes have been followed and have led to resolution of the issue.

[16]       Apart from the question of standing there are serious procedural defects in this application. It is clearly Dr. Ayangma's opinion that the terms of the NCARR Order were not complied with in the competition in which he participated. He relies upon the decision of the Public Service appeal board, as he interprets it, as evidence that the terms of the order were breached, but he does not accept that any such breach is remedied by the setting aside of the competition complained of and scheduling a replacement. Clearly there is no evidence of any continuing failure to comply with the NCARR Order.

[17]       Further, difficulties are raised by the materials before me apart from Dr. Ayangma's opinion. Documents included in the applicant's motion record, apparently intended in support of that opinion, are not facts to which Dr. Ayangma properly swears as factual matters known to him personally. In a legal sense the documents are, for the most part, hearsay, offered to support the applicant's opinion and argument but they do not establish facts properly in evidence.

[18]       There are other procedural issues which I dispose of summarily, as follows:

1.         Contempt proceedings are not available against Her Majesty the Queen ((see Hogg and Monahan, Liability of the Crown 3^rd ed., (Toronto, Carswell, 2000), at 58). Moreover, departments of the federal government do not have legal status as persons or otherwise separate from Her Majesty and they are not proper respondents to a show cause order for alleged contempt of a court order.

2.         No show cause order for contempt will be issued against unnamed individuals who are not served with notice of the motion seeking the order. They may be defendants to an order for seizure of goods when served with, for example, an Anton Piller order, and failure to obey such an order after it is personally served may lead to proceedings for contempt. That is not what the applicant here proposes.

3.         The individuals named in the notice of motion could only be subject to a show cause order where it is established that they have been personally served with the Notice of Motion and there is prima facie evidence that they are aware of the order of this Court which it is alleged that they have violated, and there is some evidence that they, as individuals, have violated the order. In my view, these matters are not established by the evidence offered in support of the motion for show cause orders.

[19]       For these reasons, this Court dismisses the application by Dr. Ayangma for orders in the nature of show cause orders to answer for alleged contempt.

[20]       The respondent requests costs of the motion and in view of "serious unfounded and scandalous allegations" made in relation to this application, costs are requested on a solicitor and client basis. I am not satisfied that costs should be awarded on a solicitor and client basis, although Dr. Ayangma should be conscious, at least henceforth, that he ought not to raise allegations, particularly concerning individuals, that are not supported by evidence.

[21]       The respondent is entitled to costs of the motion, on a party and party basis, in an amount fixed at $1,200.00, by order dismissing the application, payable forthwith.

        W. Andrew MacKay

            JUDGE

O T T A W A, Ontario

January 25, 2002