Tench v. Canada (Attorney General), docket T-2235-98

Date: 19991110

Docket: T-2235-98

OTTAWA, Ontario, this 10th day of November, 1999.

PRESENT:      THE HONOURABLE MR. JUSTICE MacKAY

BETWEEN:

     DAVID IAIN TENCH

     Applicant

     - and -

     THE ATTORNEY GENERAL FOR CANADA

     Respondent

     UPON application by the applicant for judicial review of the decision of the Public Service Commission dated October 29, 1998, which denied the applicant's request for reconsideration of an Investigation Case Report dated August 24, 1998; and the applicant requesting the following relief:

1.      Relief from the decision of the Appeals Division Decision and remedies for damages awarded to the Respondent to the complaint, to be determined either through the appointment of an actuary or an impartial and independent firm, with the binding authority of the Court.

2.      To be made "whole", which means to have all disciplinary fines restored and letters removed from the Applicant's personnel files, and to restore the Applicant's previous unblemished performance record.

3.      To be promoted two full classification levels, in accordance with the Applicant's demonstrated skills and knowledge as demonstrated on departmental tests.

4.      Any alterations to the above relief that the Court deems appropriate.

     AND UPON hearing the applicant, who represented himself, and hearing counsel for the respondent, in Halifax, Nova Scotia, on September 14, 1999, when the applicant urged that he be permitted to pursue this proceeding and to claim damages against Her Majesty the Queen;

     AND UPON reserving decision, and subsequently considering the submissions made at the hearing;

     ORDER

IT IS ORDERED THAT:

1.      This application is dismissed.

2.      Each party shall bear his or her costs.

                                     (signed W. Andrew MacKay)

    

                                         JUDGE

Date: 19991110

Docket: T-2235-98

BETWEEN:

     DAVID IAIN TENCH

     Applicant

     - and -

     THE ATTORNEY GENERAL FOR CANADA

     Respondent

     REASONS FOR ORDER

MacKAY J.

[1]      This is an application for judicial review of a decision of the Public Service Commission (the "Commission"), dated 29 October 1998, by which it was decided not to reconsider an Investigation Case Report which had concluded that Mr. Tench, the applicant, was not entitled to disability priority pursuant to section 40 of the Public Service Employment Regulations¹ (the "Regulations").

[2]      This application for judicial review raises three issues. The first is whether the relief sought by the applicant is available in this proceeding, an application for judicial review. The second issue is whether the issue of the applicant's entitlement to disability priority is now moot. The third issue is whether the Commission erred in law in its determination that the applicant did not qualify for disability priority entitlement when he was not working from June 1993 to June 1995.

Background

[3]      The applicant was employed in the Correctional Service of Canada ("CSC") at the Joyceville Penitentiary in Ontario. As a result of illness, the applicant began leave without pay on April 1, 1993.

[4]      Almost immediately, the applicant moved home to Nova Scotia and he avers that he began looking for work with the federal public service in that province. Later, the applicant was under treatment of a psychiatrist, Dr. Hirsch, beginning in the fall of 1993.

[5]      Subsequently, in May 1994, CSC received information from Sun Life Canada (the insurer for disability coverage for federal employees) that disability insurance benefits would be paid to the applicant retroactive from June 10, 1993. Those benefits continued to be paid until June 9, 1995, while the applicant continued on sick leave from his job. Benefits then ceased because Mr. Tench failed to provide a comprehensive medical report requested by the insurer before it would consider extending benefits. The applicant was sent a letter from CSC (the applicant says it was sent on October 21, 1995, and CSC says it was sent on August 3, 1995), stating that as he had been on leave without pay for more than two years, he would have to consider his options, to return to work or to resign. At no time to this point was he informed of the existence of disability priority as an option.

[6]      At this time, the applicant contacted the Springhill and Dorchester Institutions to seek work there. He also contacted the Joyceville Penitentiary to try to arrange for an inter-region transfer to the Atlantic Region. This was not successful, so the applicant returned to the Joyceville Institution on March 4, 1996. In his affidavit, the applicant recounts a litany of problems that occurred with other personnel at the institution after his return.

[7]      Those incidents became worse and the applicant alleges that a number of investigative and disciplinary actions against him were begun, in his view "to establish a pattern of misconduct from which to base a claim for termination for cause". The investigations resulted in fines and letters of reprimand.

[8]      In February 1997, the applicant began a "short leave" and a conciliated agreement was worked out, which allowed him to be transferred to the Springhill Institution in Nova Scotia. Conditions with co-workers at Springhill were much better than at Joyceville, but the applicant avers that he continued to feel the physical side-effects of the stress from the previous position. He stopped working and resumed seeing the psychiatrist that he had consulted the last time he was in Nova Scotia. In October 1997 the applicant filed his complaint with the Public Service Commission, alleging that he had not been advised of his eligibility for disability priority, and that he should have been given such priority when he was on sick leave from 1993 to 1995.

[9]      On August 24, 1998, an investigator of the Public Service Commission Recourse Branch, after hearing from the applicant and from the employer, concluded that the applicant"s complaint was unfounded. The applicant appealed this decision on August 26, 1998, and the Director of Operations of the Recourse Branch of the Public Service Commission responded on October 29, 1998, declining to reconsider the earlier decision of the investigator. It is the latter decision that gives rise to the application for judicial review.

Issue I: The Relief Sought by the Applicant

[10]      In his amended notice of application, the applicant seeks the following relief from this Court:

1.      Relief from the decision of the Appeals Division Decision and remedies for damages awarded to the Respondent to the complaint, to be determined either through the appointment of an actuary or an impartial and independent firm, with the binding authority of the Court.

2.      To be made "whole", which means to have all disciplinary fines restored and letters removed from the Applicant's personnel files, and to restore the Applicant's previous unblemished performance record.

3.      To be promoted two full classification levels, in accordance with the Applicant's demonstrated skills and knowledge as demonstrated on departmental tests.

4.      Any alterations to the above relief that the Court deems appropriate.

[11]      When this application was heard, the applicant, representing himself, without prior notice, urged that the Court should permit this proceeding to continue as an action for damages, an action that he urged is within the terms of clause 4 of the request for relief, as set out in the preceding paragraph. In his view, he should be permitted to proceed to recover compensatory damages, and to recover fines imposed following disciplinary proceedings at Joyceville after he returned to work there in 1996.

[12]      Counsel for the respondent, in her submissions at the hearing, referred to the case of Zubi v. Canada,² a decision of Mr. Justice Cullen of this Court. There, the applicant was seeking judicial review and an award of damages from a decision to move the applicant from a minimum security prison to a medium security facility. Cullen J. wrote at para. 9:

The plaintiff's statement of claim seeks declaratory relief against the decision to transfer the plaintiff to a medium security facility, to declare him to be a minimum security inmate, as well as damages in the amount of $5,000.00. It is clear from the statement of claim that the relief sought is of the type contemplated by Section 18 and not simply damages against the Crown as counsel alleges. Thus, the proper course of action for the plaintiff would be to bring an application for judicial review pursuant to sections 18 and 18.1, and then, if successful, bring an action for damages.

[13]      It is well settled that a claim for damages can only be pursued by an action and the Court has no authority to provide relief by damages in a proceeding for judicial review. Relief available in proceedings to review a decision of a federal agency is limited to the forms of relief provided by section 18 of the Federal Court Act³ and to orders as set out by subsection 18.1(3) of that Act. Moreover, the court has no authority to convert these proceedings to an action.

[14]      Of the relief sought by the applicant, only "relief from the decision of the Appeals Division" may be obtained in this Court in an appropriate case, on an application for judicial review. Damages, or to be made "whole" as the applicant defines it, or to restore his previous unblemished performance record, or to provide for his promotion, are not remedies available in this Court in this Proceeding.

Issue II: Is the Issue of Entitlement Moot?

[15]      The application for review was filed November 30, 1998. Before that, by agreement between the applicant and CSC, apparently during the course of a second absence from work by reason of illness after he had worked some time at Springhill, the applicant was considered eligible for disability priority in available public sector work, for the period from April 14, 1998 to April 13, 2000. That period began before the decision that is subject to review in this proceeding, and continues after the hearing and the filing of this decision.

[16]      The respondent argues that the applicant"s entitlement to disability priority is moot. It is argued that this is particularly so since the applicant has been granted disability priority for the period of April 1998 to April 2000. The respondent cites the leading decision of the Supreme Court, Borowski v. Canada (A.G.) .⁴ In that case, Mr. Justice Sopinka wrote for the unanimous Court:

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. ...

The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. ... In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if circumstances warrant.

[17]      In this case, there is the circumstance that Mr. Tench, after being disabled in 1993, returned to work in March 1996. His return was within the period when he would have had priority for employment if his eligibility had been recognized. In my opinion, by his returning to work the applicant waived any right he might have argued based upon any obligation of the employer to offer him employment.

[18]      In my opinion, there is not a "live controversy" between the parties concerning the applicant's entitlement to disability priority from his disability in 1993 to 1995. If judicial review should set aside the decision refusing to review his claim to priority for the period 1993-95, any relief could only be, at most, an order to reconsider, and if he were successful, to provide the disability priority now. That priority he now has. A decision varying his entitlement for the earlier period could have no effect upon either party at this stage.

[19]      In the circumstances, it is my opinion that the doctrine of mootness applies and the Court should decline consideration of the matter.

Issue III: Judicial Review of the Commission's Decision

[20]      Even if I were to find that the claim to relief, from the appeal decision, was not moot at this stage, I am not persuaded, in relation to the third issue in this case, that the Commission erred in its determination that the applicant was not entitled to disability priority under the Public Service Employment Regulations.⁵ The priority is established by the following provisions:

40. (1) Subject to subsection (2) and section 43, where a person becomes disabled at the time the person is an employee and as a result of the disability is no longer able to carry out the duties of the person's position, the person is entitled, for a period of two years beginning on the day on which the person is ready to return to work, in accordance with a certification by a competent authority, where that day is within two years after the person became disabled, to be appointed without competition and, subject to sections 29, 30 and 39 of the Act, in priority to all other persons, to a position in the Public Service for which, in the opinion of the Commission, the person is qualified.	40. (1) Sous réserve du paragraphe (2) et de l'article 43, la personne qui est devenue handicapée alors qu'elle était fonctionnaire et qui, de ce fait, n'est plus en mesure d'exercer les fonctions de son poste a le droit, pendant une période de deux ans à compter du jour où elle est prête à retourner au travail selon l'attestation d'une autorité compétente, si ce jour est compris dans les deux ans suivant la date où elle est devenue handicapée, d'être nommée sans concours et, sous réserve des articles 29, 30 et 39 de la Loi, en priorité absolue à un poste de la fonction publique pour lequel la Commission la juge qualifiée.
(2) A person referred to in subsection (1) who is appointed or deployed for an indeterminate period or declines an appointment for an indeterminate period without good and sufficient reason ceases to be entitled to be appointed to a position pursuant to that subsection.	(2) La personne visée au paragraphe (1) perd le droit de nomination conféré par ce paragraphe si elle est nommée ou mutée pour une période indéterminée ou refuse une nomination pour une période indéterminée sans motifs valables et suffisants.
(3) For the purposes of this section, a person is considered to be disabled where the person qualifies for disability compensation under the Canada Pension Plan, the Quebec Pension Plan, the Public Service Superannuation Act, the Government Employees Compensation Act or a Public Service group disability insurance plan.	(3) Pour l'application du présent article, une personne est considérée comme handicapée si elle est admissible à une indemnité d'invalidité aux termes du Régime de pensions du Canada, du Régime de rentes du Québec, de la Loi sur la pension de la fonction publique, de la Loi sur l'indemnisation des agents de l'État ou d'un régime collectif d'assurance-invalidité de la fonction publique.

[21]      To qualify under these provisions, the employee who is disabled has to be able to return to work within two years, pursuant to subsection 40(1) and the priority then extends for two years after a competent authority certifies that the person concerned is ready to return to work. The issue is how that two year period is calculated.

[22]      Subsection 40(1) calls for a certification by a "competent authority", which is not defined. The applicant contends that Sun Life is a competent authority and its letter to the employer of February 3, 1995 is effective certification. That letter communicates the expiration of the applicant"s benefits after twenty-four months; unless he were able to show that he was continually and totally disabled to the extent that he would be unable to continue almost any occupation, his benefits would terminate. In my opinion, aside from the arguable question of whether Sun Life is a "competent authority" to certify the applicant's health condition, this letter was not a certification of the applicant's fitness for work.

[23]      The applicant also points to a letter from his physician to Sun Life and a fax that Mr. Tench himself sent to the Joyceville Institution. Both of these were not considered by the respondent to satisfy the requirement of certification by a competent authority. The investigator's report includes the following comments:

... Although, Mr. Tench received disability benefits for the period 10 June 1993 to 09 June 1995, he failed to meet the second criterion which was notification that he was, as certified by a competent medical authority, able to return to work although at duties other than his substantive position.

Neither the letter of 04 May 1994 nor his participation in a competitive process in September 1994 indicate that Mr. Tench was either able to immediately return to work or that he was unable to return to his substantive position as a Corrections Officer. Both are criteria to be met to receive a disability priority. As for the 15 January 1995 letter from Mr. Tench physician [sic], it was submitted to SunLife and not the department. Ms. Charland, Claims Administrator, SunLife, they do not share this information with the department as they were not authorized by Mr. Tench to do so. As such, the department was unaware that Mr. Tench was in a position to return to work or the physician's recommendation for alternative employment. As a result, the Department was unable to advise the PSC of a priority situation as they had no [sic]received confirmation from the competent authorities that the employee was ready to return to work. Finally, Mr. Tench's fax to Mr. Burke dated 15 November 1995 fell outside the period during which Mr. Tench received disability benefits. As such, he no longer met the first criteria to be eligible to receive disability priority. Based on the above, there was no time within the two-year period established by the Regulations that Mr. Tench met the established eligibility criteria.

Mr. Tench also said that at no time did the department explain to him his options under Section 40(1) of the Regulations. This was confirmed through the statements of Ms. Johnston and Mr. Morrin and a file review of Mr. Tench's personnel file. In general, the Department has the responsibility to properly advise an employee going on DI of the appropriate terms and conditions. In the subject case, this was not done, however there were no consequences as the complainant was not ready to return to work within the two-year period established by the Regulations.

[24]      In my opinion, the decision not to review the investigator's report, in effect upholding the finding that the employer was not informed by competent authority that Mr. Tench was able to return to work within two years of his disability, was a decision based on facts, and was reasonable. There simply was not evidence otherwise. The letter from his physician was not forwarded to the employer and his fax message to Joyceville Institution on November 15, 1995 was not within the required period.

[25]      It might be argued on the basis of guidelines issued by the employer on December 20, 1996, for the administration of priorities, that the applicant became entitled to disability priority by means of his letter in November since that was received within two years of the time that Mr. Tench's disability was recognized by Sun Life's decision to pay disability benefits to him. However, since the guidelines were adopted after his disability period in 1993-95 ended, by his return to work in March 1996, he was not eligible at any time while he was disabled. It is only in retrospect by relating the guidelines to a time before they were adopted that his eligibility can be argued. No argument was here directed to the retrospective application of the guidelines and they do not constitute law in relation to their application. There is no basis for determining that the decision here in question, not to review the investigator's report, was in error.

[26]      There is one matter, not here the basis for review, upon which the parties are in agreement. That is, that CSC failed in its responsibilities to Mr. Tench. It is conceded that CSC did not inform him of the possibility of disability priority at any time when he was disabled from working in 1993-95. At the time the program for priority in alternate employment for staff who were disabled while employed appears to have been new. Nonetheless, when it was clear that the applicant was off work for an extended period because of illness covered by the insurer, CSC ought to have advised him of his potential qualification for priority to alternate employment.

[27]      Failure to advise him does not here provide a basis for setting aside the decision not to review the investigator's report. His complaint was that he was not considered entitled to priority, and as we have seen Mr. Tench did not provide, within the time required, certification by a competent authority that he was able to return to work. Thus, he did not fulfill the conditions for eligibility.

Conclusion

[28]      For the reasons set out, it is my opinion that the issue of eligibility of the applicant for disability priority in relation to the period 1993-1995 is moot. Yet even if that were not so, I am not persuaded that the employer erred in this case by the determination that the result of the investigator's report on the applicant's complaint should not be reviewed.

[29]      The only relief that the Court could have provided in this proceeding for judicial review, if the applicant's case were persuasive, would have been to set aside the decision and to refer the applicant's complaint back for reconsideration. Since I am not persuaded that relief should be granted in this case, an order goes dismissing the application for judicial review.

                                 (signed) W. Andrew MacKay

     ________________________________

                                         JUDGE

OTTAWA, Ontario

November 10, 1999

__________________

     ¹      SOR/93-286.

     ²      (1993), 17 F.T.R. 168, [1993] F.C.J. No. 168 (QL), 21 Admin. L.R. (2d) 291.

     ³      R.S.C. 1985, c. F-7, as amended.

     ⁴      [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231.

     ⁵      Supra, note 1, s. 40.