Date: 20090302
Docket: T-1012-08
Citation: 2009 FC 212
Ottawa, Ontario, March 2, 2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
JOHN
BRUCE GRUNDISON
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Attorney General of Canada seeks judicial review of a decision of
the Public Service Staffing Tribunal which found that an Assessment Board
abused its authority in assessing the application of John Bruce Grundison for a
Foreign Service Officer position at Citizenship and Immigration Canada.
[2]
The Attorney General of Canada submits that the PSST erred in several
respects in arriving at its decision. In particular, the Attorney General says
that the PSST erred in the test that it applied in finding that an Assessment
Board could have abused its authority in the absence of any evidence of
misconduct, improper motive or bad faith on the part of the Board.
[3]
For the reasons that follow, I have determined that this application for
judicial review is moot. I have also decided not to exercise my discretion to
decide the issues raised by the Attorney General. As a consequence, the
application for judicial review will be dismissed.
Background
[4]
Mr. Grundison participated in a competition at CIC for several Foreign
Service Officer (Level Four) positions. An Assessment Board convened by CIC to
assess the qualifications of applicants determined that Mr. Grundison lacked
the requisite degree of Headquarters experience, and thus did not meet one of
the experience requirements identified in the Statement of Merit Criteria for
the positions in question. As a consequence, he was screened out of the
competition at a preliminary stage, and his application was not considered any
further.
[5]
Mr. Grundison filed a complaint with the Public Service Staffing
Tribunal alleging that he was not appointed to the FS-04 group at CIC because
of an abuse of authority in the establishment and application of the essential
qualifications included in the Statement of Merit Criteria for the pool of
FS-04 positions.
[6]
The PSST determined that there was no merit to Mr. Grundison’s
allegation that CIC had abused its authority in requiring significant
Headquarters experience as an essential qualification for the FS-04 positions.
[7]
Although the PSST found that there was no evidence of any improper
intent on the part of the Assessment Board, it nevertheless concluded that it
had abused its authority in its evaluation of Mr. Grundison’s qualifications.
According to the PSST, this occurred because the Assessment Board went beyond
merely interpreting and assessing an essential qualification for the positions
and actually altered the qualification. In the view of the PSST, this was
clearly improper conduct on the part of the Assessment Board.
[8]
By way of corrective action, the PSST ordered CIC to reassess Mr.
Grundison’s qualifications in relation to his Headquarters experience. In the
event that Mr. Grundison was deemed to meet the experience requirement, then
the Assessment Board was to proceed to assess Mr. Grundison’s application in
relation to the remaining merit criteria.
[9]
Approximately two months after the PSST released its decision, and after
this application for judicial review had been commenced, Mr. Grundison was
appointed to an FS-04 position at CIC through a different competitive process.
Is the Application for Judicial Review Moot?
[10]
The Attorney General has conceded that the outcome of this application
will have no practical consequences for Mr. Grundison, given that he is now in
an FS-04 position. As a result, I do not understand there to be any real
debate about the fact that the application for judicial review is indeed moot.
[11]
Indeed, the focus of the Attorney General’s submissions was on whether
the Court should exercise its discretion to decide the case, notwithstanding
the fact that the outcome was academic as far as Mr. Grundison was concerned.
Should the Court Exercise its Discretion to Deal With the
Matter?
[12]
The leading case on the doctrine of mootness, and the circumstances
under which a Court may exercise its discretion to deal with matters that are
moot, is the decision of the Supreme Court of Canada in Borowski v. Canada
(Attorney General), [1989] 1 S.C.R. 342.
[13]
In Borowski, the Supreme Court indicated that caution should be
exercised before a Court proceeds to pronounce judgment on a matter, in the
absence of a live dispute affecting the rights of the parties. The Supreme
Court further observed that regard should be had to the underlying rationale
for the mootness doctrine, in determining whether a Court should exercise its
discretion to decide a matter that is otherwise moot.
[14]
In this regard, the Supreme Court observed that one rationale for courts
refusing to decide cases that are moot is that the courts’ competence to
resolve legal disputes is rooted in the adversarial system. The Supreme Court
noted that a full adversarial context, in which both parties have a full stake
in the outcome, is fundamental to our legal system: see Borowski at
para. 31.
[15]
A second rationale for the policy is the concern with respect to
judicial economy. This requires the court to examine the circumstances of the
specific case, in order to determine whether scarce judicial resources should
be allocated to resolve the moot issue: Borowski at para. 34.
[16]
Finally, courts must be aware of the judiciary's role in our political
framework, and be sensitive to the effect of judicial intervention: Borowski
at para. 40.
[17]
Applying the criteria articulated by the Supreme Court of Canada to the
facts of this case, I would commence by noting that even though Mr. Grundison
no longer has a stake in the outcome of this proceeding, his counsel did appear
and make arguments in relation to the application, which does somewhat limit
the concern about the absence of a full adversarial relationship: Borowski at
para. 43.
[18]
However, it should also be observed that the fact that the Court
reserved its decision on the mootness question and proceeded to hear argument
in relation to the merits of the application does not militate towards
resolving the mootness question in favour of the Attorney General. As the
Supreme Court observed at paragraph 44 of Borowski, “it would be
anomalous if, by reserving on the mootness question and hearing the argument on
the merits, the Court fettered its discretion to decide it”.
[19]
More fundamentally, I do not agree with counsel for the Attorney General
of Canada that the issues raised on this application are not capable of
repetition or are otherwise evasive of judicial review: see Borowski at
para. 45.
[20]
Indeed, it is evident from the jurisprudence cited by the parties that
even though the PSST has only been in operation for just over three years, a
number of cases alleging an abuse of authority by government staffing officials
have already made their way to hearings before the PSST. I am advised by
counsel that some of these cases are now before this Court on judicial review.
[21]
Moreover, the fact that this case is the first decision of the PSST to
actually find that an allegation of an abuse of authority by staffing officials
to have been made out does not mean that the issue will not arise again in
future cases. In my view, the scarce resources of this Court will be better
spent resolving such future cases, where the interests of the parties involved
will in fact be affected by any decision that the Court may make.
[22]
I have also considered the Attorney General’s submission that the
question of the proper legal test to be applied in relation to allegations of
abuse of authority is an issue of considerable importance to those involved in
government staffing. While I accept that this may be so, the issue is, in my
view, better resolved in the context of a live controversy between the parties.
[23]
Having regard to the above considerations, I am not persuaded that this
is an appropriate case wherein the Court should exercise its discretion to
decide a moot application.
[24]
That said, the dismissal of this application on the grounds of mootness
should not be interpreted as any indicator of the merits of either party’s
submissions in relation to the legal issues underlying the application.
Costs
[25]
Mr. Grundison seeks his costs at the upper end of Column IV on the basis
that he had put the Attorney General of Canada on notice from the outset that
this application for judicial review was moot. Mr. Grundison says that he
should not be put to the expense of funding the Attorney General’s attempt to
obtain a judicial opinion on an issue that is now clearly academic insofar as
he is concerned.
[26]
While I have given Mr. Grundison’s argument careful consideration, I am
not persuaded that the conduct of the Attorney General of Canada in pursuing
this matter justifies an elevated award of costs to the successful party.
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