Date: 20070807
Docket: T-1085-06
Citation: 2007
FC 822
Ottawa, Ontario, August 7, 2007
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
BARRY
BURSTYN
Applicant
and
CANADA REVENUE AGENCY,
JOHN JRAIGE and RON GALBRAITH
Respondents
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
Mr. Barry
Burstyn (the “Applicant”) seeks an order of mandamus pursuant to the Federal
Courts Act, R.S.C. 1985, c. F-7 as amended, requiring the Canada Revenue
Agency (the “CRA” or the “Respondent”) to assign him to a permanent AU-04
position pursuant to the decision of Independent Third Party Reviewer Kathleen
O’Neil (the “Reviewer”). The Applicant further seeks compensation for lost
income and benefits between the date of the decision, that is March 10, 2005,
as clarified by the decision of August 8, 2005 and damages from the CRA,
pursuant to the equitable jurisdiction conferred on this Court by section 3 of
the Federal Courts Act, as well as costs on a solicitor-client basis.
II. Background
[2]
The
Applicant is an AU-03 level employee with the CRA. He applied for a position as
an AU-04 classified Large Case File Auditor position. He participated in a
competition but was not selected. Mr. John Jraige and Mr. Ron Galbraith were
the successful candidates.
[3]
The
Applicant filed a complaint pursuant to the CRA’s Staffing Program and
Directives on Recourse for Staffing, claiming that the selection of these two
candidates was arbitrary and inconsistent with the CRA’s staffing principles of
fairness and transparency. The Applicant’s complaint was referred to the Reviewer
on March 3, 2004.
[4]
A hearing
took place on February 4, 2005 and in a decision dated March 10, 2005, the
Reviewer upheld the Applicant’s complaint. She found that the CRA had acted in
an arbitrary manner in making decisions that led to the Applicant’s exclusion
from placement in a permanent AU-04 position. As well, the Reviewer found that
the Agency’s process offended the staffing principles of fairness and transparency
and accordingly, was inconsistent with the policy of the Staffing Program. She
determined that “corrective action must be taken”.
[5]
The
Reviewer identified the range of corrective measures available to her. She
could order correction of the error in the process, recommend revocation of an
appointed employee or recommend the involvement of another manager in the
decision making. At pages 21 and 22 of her March 10, 2005 decision, the
Reviewer chose the first option, that is correction of the error in the
process. She set forth her conclusion as follows:
To be meaningful, correcting the errors
should put the applicant, to the extent possible, in the position he would have
been in if the errors had not occurred. In this case, I consider this to be
very difficult, in that the errors were cumulative, and resulted in what
appears, on the evidence before me, to have been the final error of not placing
the applicant in a position for which he was well qualified, because of the
Agency’s incorrect belief that he was not. Further, there is the unanswered
evidence that is consistent with, if not conclusively determinative of, actual
bias.
In the circumstances of this case, I do
not consider it to be an effective correction of the “error in the process” to
remit the matter to the Agency to reconsider the depth and breadth of the
Applicant’s experience “as if” one were starting afresh. There is nothing
before me that gives me reason to believe that it is possible on the facts in
evidence before me. The Agency certainly had relevant information in this
respect, which I am not privy to because of their decision not to attend the
hearing. When a party in possession of relevant information declines to provide
it in the forum provided, despite having been given notice of the potential
consequences, the usual inference is that the provision of the information
would not have been in its favour. This extends to the question of whether
effective correction of the errors could be achieved by remitting the matter to
Agency managers to begin the process afresh. Given the Agency’s failure to
attend the hearing, leaving the applicant’s case largely unanswered, an adverse
inference is justifiable. Therefore, in the unusual circumstances of this case,
it is my view that the only effective way to correct the error in the
process is to recommend that the applicant be given a permanent AU-04 position
in the Windsor office. It is the only
measure that would truly correct the error in the process, and put him in the
position that he would have been in but for those errors, on the evidence
before me.
Given the interests of the incumbents, and the applicant’s submission that it
was not necessary to recommend their revocation, I will leave it to the Agency
as to whether it wishes to implement this recommendation through revocation of
one of the placements in question, which I have found to have been the result
of a seriously flawed process, or by assigning Mr. Burstyn to another permanent
AU-04 position that he is willing to accept. It is important to underline that
these conclusions and recommendations are in no way a criticism of the evident
qualification and skills of the incumbents. [Emphasis added]
Further, to complete the correction of
the errors, the applicant should be compensated for any losses arising from the
errors, including the difference between AU03 and AU04 salary from the period
of the original placements to the date of Mr. Burstyn’s assignment to a
permanent AU04 position.
[6]
The CRA
wrote to the Applicant on May 3, 2005 and said that it could not carry out the
Reviewer’s decision since there was no statutory basis or mechanism under its
governing legislation that is the Canada Customs and Revenue Agency Act,
S.C. 1999, as amended (the “Act”) to implement the decision.
[7]
On the
same day, the Applicant asked the Reviewer to clarify her decision. On August
8, 2005, the Reviewer issued a clarification of her decision. In that decision,
she said that she had chosen the first option available to her, that is
correction of the error in the selection process and that her initial decision
had detailed how the error should be corrected. She said that the CRA’s
subsequent determination to proceed by “soliciting another manager” to make the
decision on placement was not the corrective measure that she had found to be
necessary in her decision.
[8]
The Reviewer
also clarified the date for the calculation of retroactive pay and said the
following:
The Agency’s memo states that my decision
proposed to make the appointment of the applicant retroactive to a point in
time when the applicant would have been screened into the process. My finding
was that the applicant should be compensated for any losses arising from the
errors, “from the period of the original placements to the date of Mr.
Burstyn’s assignment to a permanent AU04 position.” December 1, 2003 is the
date permanent placements were made, and that is the date that I find to be the
appropriate date for payment of retroactivity, and is what was meant by my
reference to the original placements. It is important to clarify that the
decision did not state or intend that the assignment should be retroactive to
the date the candidates were screened into the process, which I understand as a
reference to the date of October 28, 2002 when the results for screening into
the pool were announced.
[9]
Finally,
she dismissed the CRA’s argument that she had exceeded her jurisdiction in selecting
the remedy. In this regard, she said that her decision was within her authority
according to the “guidelines for submitting and processing a request for an
independent third party review”. This is a reference to the Agency’s Staffing
Program and Directives on Recourse for Staffing.
[10]
The CRA
did not seek judicial review of Ms. O’Neil’s decision dated March 10, 2005 nor
did it file an application for judicial review of the clarification of that
decision dated August 8, 2005.
[11]
By letter
dated August 11, 2005, to the CRA, counsel for the Applicant demanded
implementation of the Reviewer’s decision. The CRA replied in a letter dated
August 25, 2005 and expressed the opinion that the Reviewer had exceeded her
jurisdiction. It said that it would not implement the corrective measures
recommended by Ms. O’Neil and further noted that there were currently two
matters pending before the Federal Court concerning the authority of a Third
Party Reviewer.
[12]
On
September 7, 2005, the Applicant commenced an application for judicial review
in this Court in cause number T-1500-05, respecting the decision of the CRA, in
its letter of August 25, 2005, not to implement the decision of Ms. O’Neil. By
Order dated June 23, 2006, in Burstyn v. Canada Customs and Revenue Agency,
[2006] F.C.J. No. 954, (“Burstyn No. 1”) Madam Justice Layden-Stevenson
allowed the application and quashed the CRA’s decision of August 25, 2006 not
to implement the Reviewer’s decision.
[13]
By letter
dated July 31, 2006, counsel for the Applicant again demanded that the CRA
implement the Reviewer’s decision. In a letter dated August 22, 2006, the CRA
said that it would not implement the corrective measures identified in the
Reviewer’s decision on the grounds that:
…we continue to experience difficulty in
finding a basis upon which to appoint Mr. Barry Burstyn retroactively to
December 1, 2003.
…there is no mechanism in either the CRA
Act or the Staffing Program that would allow the Agency the requisite legal
authority to effect this appointment as enunciated by the Independent Third
Party Reviewer. The decision by the Reviewer to effect this appointment
continues to be an illegal action that is contrary to the Staffing Program
Directive of the CRA.
III. Summary of Submissions
[14]
The
parties agree that the test for grounding an order of mandamus is set
out in the decision in Apotex Inc. v. Canada (Attorney General), [1994]
1 F.C. 742 (C.A.). The only points in contention are whether there is a public
legal duty owed to the Applicant and whether the balance of convenience lies in
his favour.
A. The Applicant
[15]
On August
23, 2006 the Applicant filed this application seeking an Order of Mandamus
to compel the Respondent to implement the decisions of the Reviewer.
[16]
The
Applicant argues that the combined effect of the Respondent’s Staffing Program,
the Directive on Recourse for Staffing and the Guidelines give rise to a public
legal duty for the implementation of the Reviewer’s decision.
[17]
The Staffing
Program, Article P.5.0-9 provides that the Independent Third Party Review
process results in a “binding decision”. That Program also provides, in Article
P.5.0-14, that the recourse for staffing “will be governed by the Directive on
Recourse for Staffing”.
[18]
The
Directive provides at page 10, that the Independent Third Party Review process
will be binding upon the employer. The Respondent’s Guidelines provide that the
“appropriate level of management is responsible to implement the corrective
measures issued by the review”.
[19]
The
Applicant submits that the only exception to the requirement that the
Respondent implement a Reviewer’s decision or to challenge such a decision by
means of an application for judicial review arises from the language of the
Guidelines at page 7, as follows:
The appropriate level of management is
responsible to implement the corrective measures issued by the reviewer, in as
much as these are contained within the authority given to the reviewer in this
area, in a reasonable time frame, …
[20]
The
Applicant says that the Respondent unsuccessfully tried to rely on this
exception, in the proceedings before Justice Layden-Stevenson, by arguing that
the Reviewer had erred in law by granting a remedy that was beyond her
jurisdiction.
[21]
The
Applicant submits that the disposition by Justice Layden-Stevenson in Burstyn
No. 1 means that the Respondent is subject to a duty to implement the
Reviewer’s decision. He further argues that the balance of convenience lies in
his favour.
B. The Respondent
[22]
The
Respondent advances two submissions. First, it argues that the decision of the
Reviewer is incorrect and illegal because the Reviewer lacked the jurisdiction
to order the corrective measure of appointment to a position. The Respondent
relies on the decision in Canada (Attorney General) v. Gagnon, [2006] F.C.J. No. 270 in
support of this argument.
[23]
In Gagnon,
an employee of the Respondent applied for a promotion and upon denial of that
promotion, sought independent third party review. The Reviewer concluded that
the employer had acted arbitrarily in denying the employee the position to
which she was entitled and ordered retroactive appointment to the position
sought. Upon an application for judicial review, the Court found that the
Reviewer had exceeded his jurisdiction.
[24]
The
Respondent submits that the decision in Gagnon means that the Reviewer’s
decision cannot give rise to a public legal duty.
[25]
The
Respondent also argues that the Reviewer made only a recommendation when she
ordered the appointment of the Applicant to the position as a Large Case File
Auditor. It submits that a discretionary decision cannot support an application
for mandamus and relies on the decision in Kelly v. Canada (Correctional Service), [1992] F.C.J. No. 720.
IV. Discussion and Disposition
[26]
The
principal question arising in this application is whether the decision of the
Reviewer gives rise to a public legal duty upon the Respondent to act in
implementing that decision. A public legal duty can arise pursuant to a statute
or pursuant to guidelines issued under statutory authority; see Jefford v.
Canada, [1988] 2 F.C. 189 and Canadian Wildlife Federation Inc. v.
Canada (Minister of the Environment), [1989] 3 F.C. 309 (T.D.); aff’d.
[1990] 2 W.W.R. 69 (F.C.A.).
[27]
As noted
above, the Reviewer’s decision was made pursuant to the Respondent’s Staffing
Program and Directives on Recourse for Staffing. In Burstyn No. 1,
Justice Layden-Stevenson described the statutory authorization and genesis of
the Staffing Program at paragraph 21 as follows:
The agency is established as a body
corporate under subsection 4(1) of the Act and pursuant to subsection 4(2) is,
for all purposes, an agent of Her Majesty in Right of Canada. It is responsible
for supporting the administration and enforcement of the program legislation
(paragraph 5(1)(a) of the Act). The agency has the exclusive right and
authority to appoint any employees that it considers necessary for the proper
conduct of its business (subsection 53(1) of the Act) and it must develop a program
governing staffing, including the appointment of, and recourse for, employees
(subsection 54(1) of the Act).
[28]
In my
opinion, the fact that the Staffing Program was enacted pursuant to legislation
favors a finding that processes created in that program give rise to a legal
duty. The Respondent authorized
the Staffing Program and it is reasonable to find that it
deliberately chose the steps and processes identified in that Program.
[29]
A decision
was made by the Reviewer, pursuant to the Staffing Program and processes
created by the Respondent. At paragraph 27 of her reasons, Justice
Layden-Stevenson characterizes the decision as having a “judicial” character,
having regard to processes before the Reviewer, including the authority to hold
a hearing with witnesses. I see no reason to disagree and note that the
characterization of the decision in that way also tends in favour of finding
that it gives rise to a public legal duty.
[30]
The
decision in Gagnon is largely irrelevant, in my opinion, to the issues
raised in this application. It is undisputed that the Respondent did not seek
judicial review of the Reviewer’s decision nor of the clarification decision.
The Respondent cannot challenge the well-foundness of that decision in this
proceeding, having failed to do so at the appropriate time and in the
appropriate manner, pursuant to the Federal Courts Act and the Federal
Courts Rules, SOR/98-106.
[31]
I refer
again to Burstyn No. 1. It seems that the Respondent attempted to
challenge the Reviewer’s decision in that case as well. Justice
Layden-Stevenson briefly described that attempt in paragraph 1 as follows:
Can the respondent agency, having failed
to seek judicial review of an Independent Third Party Review (ITPR) decision,
achieve that objective in this proceeding, where the agency's refusal to
implement the ITPR decision is being challenged? I have determined that, on the
facts and circumstances of this particular matter, the answer is no.
[32]
At
paragraph 20, under the heading “The Concessions”, she commented further as
follows:
As noted, the agency has no quarrel with
the underlying reasons of the reviewer. Its only issue is with the
recommendation for correction of the error in the process. Although not
expressed in these terms, I take that concession to mean that the agency does
not dispute that the reviewer had jurisdiction to conduct the inquiry and to
order a remedy. The agency also concedes that it should have applied for
judicial review and declined to do so because it was awaiting the outcome in Gagnon.
In retrospect, the agency considers its chosen course of action to have been
taken in error. It does not suggest that its decision not to seek judicial
review in this matter was anything other than deliberative.
[33]
Finally, I
must consider the consequences of the Respondent’s deliberate choice to not
pursue an application for judicial review. That choice means that there is a decision
in place that presumptively, is entitled to be enforced. The jurisdictional
validity of that decision has not been challenged and I adopt the words of
Justice von Finckenstein in Sherman v. Canada (Customs and Revenue Agency) (2005), 269 F.T.R. 294 (F.C.)
at paragraph 19 as follows:
Having set up the ITPR process, having
participated in the hearing, having started to implement the award (as
interpreted by CCRA), having failed to object to the award and having failed to
seek judicial review of the award, the CCRA is now estopped from asserting at
this late date that the Reviewer lacked jurisdiction to make the award. As
succinctly stated by Campbell J. In Ontario Provincial Police (Commissioner) v.
Silverman (2000, 49 O.R. (3d) 272 at paragraph 25:
… A basic principle of our law estops a
party who invites a tribunal to accept jurisdiction from saying, when he finds
that the tribunal decides against him, that the tribunal lacked the very
jurisdiction he invited it to exercise: Ex p. Pratt, Re Pratt (1884), 12 Q.B.D.
334 at p. 341, 53 L.J. Ch. 613, per Bowen L.J., quoted by Gliders J.A. in
Imperial Tobacco v. Imperial Tobacco Sales, [1939] O.R. 627 at p. 644, 72
C.C.C. 321 at p. 346.
[34]
Is the
decision of the Reviewer a “decision” or a “recommendation”? If the later, it
cannot be enforced by an order of mandamus. In making its submissions
that the decision is no more than a recommendation, the Respondent focuses on
the use of the words “recommended” at pages 21 and 22 of the decision.
[35]
I am not
persuaded, having regard to the totality of her decision, that the Reviewer was
only making a recommendation. In my opinion, she had identified a remedy for
the Applicant and intended that it be implemented. This argument on the part of
the Respondent is rejected.
[36]
I am
satisfied that the Applicant has shown that a public legal duty lies upon the
Respondent to give effect to the decision of the Reviewer and that the decision
is not a recommendation.
[37]
The next
issue is whether the balance of convenience lies in favour of granting an order
of mandamus. Such an order, as is with all forms of relief available
upon an application for judicial review, is wholly within the discretion of the
Court, pursuant to subsection 18.1(3) of the Federal Courts Act.
[38]
In Apotex,
at paragraphs 107 and 108, the Federal Court of Appeal discussed some of the
factors that are to be considered in assessing the balance of convenience.
Those factors include administrative cost or chaos and patented health or
safety risks to the public.
[39]
The
present case does not involve public interests. The duty arises in relation to
the Applicant personally. The Respondent has not expressed a concern about
administration chaos but has focused instead on what it calls the “illegality”
of the decision in issue. That question is not properly raised in this
proceeding and in my opinion, does not enter into consideration of the balance
of convenience.
[40]
I am
satisfied that the Applicant has shown that the balance of convenience lies in
his favour. He pursued the Independent Third Party Review in accordance with
governing processes that were established by the Respondent. The Respondent
chose not to participate in that proceeding and subsequently, chose not to
challenge the Reviewer’s decision. The Applicant pursued the process in the
expectation of a remedy and having met the only other part of the test that was
in dispute, that is the existence of a public legal duty, he is entitled to the
benefit of the decision. I find that the balance of convenience lies in his
favour.
[41]
I turn now
to the Applicant’s requests for collateral relief, that is for an order that he
be compensated in accordance with the Reviewer’s decision for any losses
sustained up to the date of
his appointment together with interest, an order for damages
payable by the Respondent pursuant to the equitable jurisdiction of this Court,
and costs on a solicitor-client basis.
[42]
As noted
above, the Reviewer addressed the question of compensation in her clarification
decision. For ease of reference, I repeat her comments in that regard:
The Agency’s memo states that my
decision proposed to make the appointment of the applicant retroactive to a
point in time when the applicant would have been screened into the process. My
finding was that the applicant should be compensated for any losses arising
from the errors, “from the period of the original placements to the date of Mr.
Burstyn’s assignment to a permanent AU04 position.” December 1, 2003 is
the date permanent placements were made, and that is the date that I find to be
the appropriate date for payment of retroactivity, and is what was meant by my
reference to the original placements. It is important to clarify that the
decision did not state or intend that the assignment should be retroactive to
the date the candidates were screened into the process, which I understand as a
reference to the date of October 28, 2002 when the results for screening into
the pool were announced.
[43]
I decline
to make the order requested by the Applicant. I am not prepared to dissect the
decision of the Reviewer, including the clarification decision, and the order
of mandamus will issue with respect to the decision as a whole.
[44]
In any
event, damages are not available as relief in an application for judicial
review; see s. 18.1(3) of the Federal Courts Act and Tench v. Canada (Attorney General) (1999), 179 F.T.R. 126.
[45]
The same
objection with respect to the exercise of this Court’s equitable jurisdiction
which is conferred by section 3 of the Federal Courts Act.
[46]
The only
issue remaining is the question of costs. The award of costs is governed by
Rule 400 of the Federal Courts Rules. The Court has full discretion over
costs, including an award of solicitor-client costs. Such costs are available
in rare instances, for example where one party has acted in a reprehensible,
scandalous or outrageous manner; see Mackin v. New Brunswick (Minister of Justice), [2002] 1 S.C.R. 405.
[47]
I am not
persuaded that such is the case here. I refer to the decision in Sherman where the applicant also
sought solicitor and client costs. In denying that request, the Court found
that the issue raised was one of jurisdiction and reasonable arguments were
advanced by the respondent.
[48]
In the
present case, the Respondent has recited arguments that were apparently raised
and rejected before Justice Layden-Stevenson. In my view, costs here should be
assessed in the full discretion of the Assessment Officer.
ORDER
The application for judicial review is allowed and
an order for mandamus shall issue relative to implementation of the
Order of the Independent Third Party Reviewer Kathleen O’Neil, that is the
decision dated March 10, 2005 as clarified by her decision dated August 8,
2005. The request for corollary relief is denied. The Applicant shall have his
costs to be taxed in the full discretion of the Assessment Officer.
“E.
Heneghan”
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