Date: 20090409
Docket: T-397-08
Citation: 2009 FC 366
Ottawa, Ontario, April 9, 2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
PETER
TATICEK
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
crux of this case can be summarized as follows: “A promise made is a debt
unpaid and the … [law] has its own stern code” (with apologies to Robert
Service).
The Public Service Commission of Canada (PSC)
investigator (Investigator) of the Applicant’s complaint promised to provide
documents and a copy of a draft report upon which to comment. The promise was
not fulfilled and the original complaint was dismissed.
II. BACKGROUND
[2]
The
Applicant, a federal public servant, took part in an external competition (a
competition open to both public servants and the general public) for two
positions at Industry Canada. In the course of the competition,
participants were to self-assess their experience in the specific area called
for in the competition, without knowing what level of experience had been set
as a requirement for the position. That detail was contained in the Job
Description, a document not available to the participants. As a result of the
Applicant’s assessment, he was “screened out” of the competition because he
self-rated his experience as Level 3 and Level 4 was required.
[3]
On
December 5, 2006, the Applicant submitted a complaint requesting an
investigation pursuant to s. 66 of the Public Service Employment Act
(Act).
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66. The
Commission may investigate any external appointment process and, if it is
satisfied that the appointment was not made or proposed to be made on the
basis of merit, or that there was an error, an omission or improper conduct
that affected the selection of the person appointed or proposed for
appointment, the Commission may
(a)
revoke the appointment or not make the appointment, as the case may be; and
(b) take
any corrective action that it considers appropriate.
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66. La
Commission peut mener une enquête sur tout processus de nomination externe;
si elle est convaincue que la nomination ou la proposition de nomination n’a
pas été fondée sur le mérite ou qu’une erreur, une omission ou une conduite
irrégulière a influé sur le choix de la personne nommée ou dont la nomination
est proposée, la Commission peut :
a) révoquer la nomination ou ne pas
faire la nomination, selon le cas;
b) prendre les mesures correctives
qu’elle estime indiquées.
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The core of his complaint is related to the
experience level set as a requirement for the position.
[4]
On
October 3, 2007, the Investigator met with the Applicant and his representative
(Pelletier). The meeting is crucial to this case because it is the nature and
extent of the promises made at this meeting which ground this judicial review.
[5]
The
Applicant’s evidence about the promises made at this meeting was that the
Investigator promised to provide additional information, a draft copy of the
investigator report, and an opportunity to make comments and submissions before
the report would be finalized.
[6]
Pelletier’s
evidence is to the same effect but is more precise. It was Pelletier’s position
that the Investigator agreed to obtain further information from Industry Canada and to
provide it to the Applicant and to Pelletier. That information included the
number of candidates, whether screening covered both positions, and whether
candidates had been assessed on the “essential qualifications” only or on both
the “essential qualifications and the asset qualifications”. Pelletier’s
evidence was also that the Investigator would provide a copy of her preliminary
report and an opportunity to comment on it. Failing any comments, the report
would be final.
[7]
Pelletier’s
affidavit evidence was supported with notes made at the time. While these notes
are not identical to the recollection outlined in Pelletier’s affidavit, they
are consistent with her recollection. Neither Pelletier nor the Applicant were
cross-examined on their affidavits.
[8]
The
Investigator’s recollection, set out in her affidavit, was that at the October
3 meeting the Applicant and his representative had no comments on the
department’s documents.
[9]
As
to the promise to provide further documents, the Investigator acknowledges that
the promise was made but admits that the department only provided her with some
of the information (the number of candidates and the job description). She
concluded that this information was not relevant and was not relied upon by her
in preparing her report.
[10]
The
Investigator denies that she promised to provide the draft report and to afford
an opportunity to make submissions. It was her recollection that she only said
that she would afford the successful candidate an opportunity to comment on the
preliminary report. She was cross-examined on her affidavit but nothing of any
great import arose.
[11]
Although
the Investigator did not forward the “promised” documents or draft report to
the Applicant, the Investigator did forward the facts portion of the draft
report to the successful candidate.
[12]
Having
heard nothing further from the successful candidate, the Investigator issued
her final report dismissing the Applicant’s complaint.
[13]
The
final report, dated December 21, 2007, was issued on December 24, 2007 with the
clear wording that it was a final report and that the Applicant had 30 days to
bring a judicial review in the Federal Court.
[14]
The
Applicant received the report on December 28, 2007. Pelletier did not see her
copy of the report until January 10, 2008. Thereafter there was communication
with the Investigator in an effort to reconcile the promises made with the
receipt of a final report and an effort to determine if the Investigator had
truly intended to make the report final.
[15]
Several
voicemail messages were left with the Investigator starting on January 14,
2008. Finally, on February 19, 2008, the Investigator contacted Pelletier.
Pelletier’s notes indicate, and her affidavit attests, that the Investigator responded
that she thought that she had sent along the information previously requested
and further that having received no comments from the Applicant, she had
proceeded to finalize her report. The Investigator agreed to check the file to
determine if her recollection was correct.
[16]
Finally,
on February 28, 2008, the Investigator left a voicemail message that she had
not sent any information to the Applicant or Pelletier and that there was
nothing she could do as the file was closed. The Applicant takes the position
that this is the time at which the finality of the decision was communicated
and the 30-day period for commencing a judicial review began on this date.
[17]
The
Applicant filed his judicial review on March 11, 2008.
[18]
There
are two principal issues in this matter:
a. Was an
extension of time for commencing a judicial review required and if so, should
it be granted?
b. Was there a
breach of procedural fairness by failing to honour the commitments made by the
Investigator (whatever they may have been)?
III. ANALYSIS
A. Extension
of Time
[19]
Both
the extension of time (if any) and the merits of the judicial review are
significantly affected by a finding as to the nature and extent of the promises
made by the Investigator.
[20]
The
Applicant says that in view of these promises, particularly not to finalize the
report until his comments on the draft report were received, the Applicant did
not know that the decision was final until February 28, 2008 or alternatively
had a reasonable basis for not commencing a judicial review within 30 days
following December 28, 2007.
[21]
The
Respondent argues that the finality of the decision was clear from the words of
the covering letter and therefore the delay is unjustified.
[22]
Having
set out the facts in some detail, it is also necessary to refer to the PSC’s
policy document “Framework for Mandated Investigations Relating to Appointment
Processes” (Framework), and in particular the part which deals with the
Investigator’s role.
[23]
The
policy addresses two investigation methods. One, called a “fact finding
meeting”, where all the parties sit down together; and the other, a technique
which goes beyond a meeting. The latter method was the one employed. The
Framework states:
The investigator will ensure that the
principles of procedural fairness are followed. This will include, when a
methodology other than fact-finding meeting is used, the distribution of the
draft report (facts only) to the parties (for their review and comments) prior
to the analysis and conclusion on the case.
[Emphasis added]
[24]
As
between the two versions about the promises, I find that the Applicant’s
version is more credible and plausible. It is not just that two people on the
Applicant’s side say the same thing but, more importantly, their recollection
is more consistent with contemporaneous notes, with post-decision actions, and
with the policy above. The Investigator’s recollection is tinged with
imprecision and her post-decision actions are inconsistent with her denial that
she would have made any such promises about sharing the draft report. To the
extent that there may have been any misunderstanding about the scope of the
promises (there being agreement that some promises were made), the
responsibility rests with the person who made the promise.
[25]
Therefore,
on the issue of the date of communication of the final decision, and most
particularly its finality, on these facts it occurred on February 28, 2008 when
the finality (a subject of reasonable confusion) was confirmed unequivocally.
Therefore, the judicial review was filed in time.
[26]
This
Court has, and likely will continue, to prohibit efforts to extend the
statutory deadline by seeking re-openings or reconsiderations and other similar
techniques (see Taylor v. Canada (Public Service
Commission), 2003 FCT 566). None of those techniques were in play here.
[27]
Even
if there was a delay, the Applicant has met the critical aspects for an
extension – there was a continuing intent to challenge the decision, there was
a reasonable explanation for the delay, there was an arguable case on the
merits, the delay was short, and no real prejudice occurred (see Canada
(Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41).
[28]
For
these reasons, there is no need for an extension of time but if it were
required, it is granted. The Applicant’s failure to bring a motion for an
extension of time prior to the hearing could, in other circumstances, have been
fatal.
B. Procedural
Fairness
[29]
As
indicated above, I have found that the Investigator gave the Applicant
assurances that she would forward additional documents. She did not do so, and
indeed did not pursue obtaining some of them from Industry Canada. Further,
the Investigator undertook to provide the Applicant with a draft report for
comment, which was never done.
[30]
Since
as early as Lord Denning’s decision in R. v. Liverpool Corporation,
ex parte Liverpool Taxi Fleet Operators' Association, [1972] 2 Q.B. 299, promises of
particular procedure to be followed have been held to be binding at least as a
matter of natural justice/procedural fairness. The importance of the legitimate
expectations raised by such promises was recognized in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, at page 819, in
considering the five factors which anchor the duty of fairness:
… (1) the nature of the decision being
made and process followed in making it; (2) the nature of the statutory scheme
and the terms of the statute pursuant to which the body operates; (3) the
importance of the decision to the individual or individuals affected; (4)
the legitimate expectations of the person challenging the decision; (5) the
choices of procedure made by the agency itself.
[Emphasis added]
[31]
In
this case, it was entirely unfair to promise one thing and do another, even if
the Respondent thinks that the undelivered documents were irrelevant or of no
consequence. That unfairness was compounded by the prejudice to the Applicant’s
ability to challenge the experience level (Level 4) required by the employer.
[32]
The
Respondent would have the Court interpret s. 72 of the Act as depriving a
complainant of the right to the promised documents and promised procedure. Section
72, applicable because this was an external competition, reads:
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72.
Where an investigation is conducted under this Part in relation to a person’s
appointment or proposed appointment, that person and the deputy head in
relation to the appointment — or their representatives — are entitled to make
submissions to the Commission, Commissioner or other person, whichever is
conducting the investigation.
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72. La personne dont la nomination ou la
proposition de nomination est en cause dans le cadre d’une enquête visée à la
présente partie et l’administrateur général concerné, ou leurs représentants,
ont le droit de présenter leurs observations à la Commission ou, si une
personne a été chargée de l’enquête, à celle-ci.
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[33]
The
Respondent argues that this section is designed to, and should be interpreted
as, severely restricting procedural fairness to a complainant. It seeks to have
this Court read out significant aspects of procedural fairness pursuant to this.
[34]
It
takes stronger words than these to sanction the breach of promises and the elimination
of key aspects of procedural fairness, natural justice, and the right to be
heard. Section 72 is designed for the protection of the successful candidate
and the senior bureaucrat responsible for the decision in respect of all
investigations; whether they come from a complaint by an unsuccessful
candidate, by some other form of complaint, or even by a self initiated
investigation of the PSC.
[35]
The
Respondent’s position is also inconsistent with the PSC’s Framework document (see
paragraph 22 of these Reasons), unless one were to take an unnatural and
restrictive interpretation of the term “parties”. In this case, the Applicant
had a similar interest in the complaint process to that of the successful
candidate (a job opportunity), he had a specific and focused complaint (the
level of experience required), and he had been a participant in the job
competition. It is difficult to see how the Applicant is any less of a “party”
than the successful candidate or the deputy head.
[36]
The
Respondent relies on s. 79(1) of the Act (which is applicable to internal
competitions) to suggest that a complainant in the same position as the
Applicant in an external competition has significantly less rights to
procedural fairness, including the right of legitimate expectation, than a
complainant in an internal competition.
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79.
(1) A person making a complaint under
section 77, the person appointed or proposed for appointment, the deputy head
and the Commission — or their representatives — are entitled to be heard by
the Tribunal.
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79. (1) Le
plaignant visé à l’article 77, la personne qui a fait l’objet de la
proposition de nomination ou qui a été nommée, la Commission et
l’administrateur général, ou leurs représentants, ont le droit de se faire
entendre par le Tribunal.
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[37]
In
addition to noting that s. 79(1) relates to a Tribunal process and enshrines
rights of procedural fairness which might otherwise be available under public
law principles, I cannot see that by passing s. 79(1) Parliament could have
intended to deprive a complainant of the right “to be heard” or of other
procedural protections merely because a job competition was available to public
servants as well as other members of Canadian society.
[38]
The
Respondent’s interpretation would mean that, in respect of a flawed job
competition, public servants in an internal competition would be entitled to a
wide array of procedural protections, but members of the Canadian public
involved in the same government’s job competition would not enjoy any such
procedural protections. Again, clearer language than presently exists would be
required to displace the requirement for procedural fairness.
[39]
I
need not decide whether a breach of procedural fairness requires a showing of
prejudice to be actionable (see Re: Minister for Immigration and
Multicultural Affairs; ex parte Lam [2003] HCA 6) because in this case
there was both breach and prejudice. However, I have doubts as to the soundness
of the Respondent’s submission on this point given our Supreme Court’s reasoning
in Baker, above.
IV. CONCLUSION
[40]
For
all of these reasons, this judicial review will be granted with costs. The
Investigator’s Report will be quashed, and the matter will be remitted to the
Public Service Commission for investigation and report consistent with these
Reasons by a different investigator.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is granted with costs, the Investigator’s
Report is quashed, and the matter is to be remitted to the Public Service
Commission for investigation and report consistent with these Reasons by a
different investigator.
“Michael
L. Phelan”
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