Docket: T-260-14
Citation:
2014 FC 1230
Ottawa, Ontario, December 19, 2014
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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KELLY PLATO
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Applicant
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and
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CANADA REVENUE AGENCY
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter and Background
[1]
The Applicant was an unsuccessful candidate in a
job selection process for a position as a tax auditor at the Canada Revenue
Agency [the CRA]. After the Applicant successfully challenged that process
through an independent third party review, the CRA issued corrective measures
which, in part, were found to be unreasonable by this Court in Plato v
Canada (Revenue Agency), 2013 FC 348 at paras 20-23 [Plato 1].
[2]
Following the decision in Plato 1, the
CRA issued new corrective measures which are now the subject matter of this
application for judicial review pursuant to subsection 18.1(1) of the Federal
Courts Act, RSC 1985, c F-7. The Applicant asks this Court to set aside the
decision of the CRA purporting to correct the errors in the selection process
and have the matter remitted back to the CRA to rectify such errors in
accordance with the independent third party review. The Applicant also requests
his costs, fixed in the amount of $2,500.00.
[3]
My colleague, Madam Justice Mary Gleason, has
set out much of the relevant background to this matter in Plato 1 at
paras 3-13. In summary, the CRA ran a job competition in 2007 and 2008 for an
AU-02 tax auditor position. The Applicant qualified for such a position but was
not chosen at the placement stage of the selection process. An independent
third party review of the selection process was requested by the Applicant and
the reviewer found, in her decision dated September 23, 2011, that the process
had arbitrarily used a locally developed assessment tool when a standardized
assessment tool was available and, also, that some aspects of the process
lacked transparency. The reviewer ordered the CRA to correct these errors in
the selection process and the CRA attempted to do so by way of a letter to the
Applicant dated October 25, 2011.
[4]
The Applicant was not satisfied with the CRA’s
corrective measures and sought judicial review in this Court. In Plato 1,
Madam Justice Gleason found that, although the CRA had reasonably dealt with
the errors relating to transparency, it had failed to correct the use of the
locally developed assessment tool. This failure was unreasonable and Justice
Gleason sent the matter back to the CRA with the following guidance (Plato 1
at para 23):
This ruling does not necessarily mean that CRA
is required to rerun the competition or excise consideration of abilities in
respect of legislation from the selection process. Indeed, as was conceded by
counsel for the applicant during oral argument, it may well be open to CRA to
retrospectively authorize the use of the local selection tool for evaluation of
the legislation policies and procedures competency in this case. However, it is
not for me to comment on what remedy must be selected, as this a matter of
discretion for the manager making this decision, who is required only to ensure
that his or her remedy is logically tied to the third party reviewer’s decision
and in some way addresses the breach that the third party reviewer found to
have occurred.
II.
Decision under Review
[5]
By a memorandum dated December 17, 2013, the CRA
revised and re-issued its corrective measures. The CRA manager stated that
retroactive authorization for use of the locally developed assessment tool had
been requested and the Standardized Assessment Section of CRA’s Human Resources
Branch had confirmed that, had the selection board requested an exception not to
use the standardized assessment tool at the time of the selection process, such
a request would have been granted.
III.
Motion to File a New Affidavit
[6]
The Applicant commenced this application for
judicial review on January 16, 2014. After the deadline for serving the
Respondent’s affidavits had passed, counsel for the CRA was advised of some new
facts concerning this matter and, pursuant to Rule 312 of the Federal Courts
Rules, SOR/98-106, the Respondent moved for an order allowing an additional
affidavit from Lin Li dated May 29, 2014, to be filed. The Applicant opposed that
motion and filed evidence to support his arguments. In reply to such evidence,
the Respondent requested that an affidavit from its former counsel be
submitted. On July 29, 2014, Madam Prothonotary Mireille Tabib allowed the
affidavit from the Respondent’s former counsel to form part of the record for
the motion and directed that the motion to allow the additional affidavit from
Lin Li be heard at the same time as this application for judicial review.
[7]
At the hearing of this matter, it was determined
that counsel for the parties would first address the Respondent’s motion
concerning the additional affidavit of Lin Li, and afterwards the Court would
hear the parties’ submissions on the issues of whether this application had
been rendered moot and whether the CRA’s decision under review was reasonable.
[8]
The Respondent argues that the additional evidence
should be admitted under Rule 312 so long as it: (1) serves the interests of
justice; (2) assists the Court; (3) does not cause serious prejudice to the
other party; (4) could not have been made available earlier; and (5) does not
unduly delay the proceedings (LaPointe Rosenstein v Atlantic Engraving Ltd,
2002 FCA 503 at paras 8-9, 299 NR 244; Allergan Inc v Canada (Health),
2013 FC 1165 at paras 14-15, 116 CPR (4th) 467).
[9]
The Respondent submits that this evidence meets
all five criteria for the following reasons: (1) it will serve the interests of
justice by showing that the Applicant has received a better job than the one
for which he was competing in the selection process under review; (2) it will
assist the Court in resolving the mootness issue; (3) the Applicant will not be
prejudiced since he can respond at the hearing or by filing a supplementary
record; (4) the Respondent’s deadline for filing affidavits was March 27, 2014,
and the Applicant only accepted the new position after that; and (5) it will
not cause any delay.
[10]
The Applicant agrees with the Respondent as to
the test to permit additional evidence, but he emphasizes that the Court’s
discretion to admit the additional evidence “should be
exercised with great circumspection” (Mazhero v Canada (Industrial Relations Board), 2002 FCA 295 at para 5, 292 NR 187 [Mazhero]).
[11]
In the Applicant’s view, the motion should be
denied for three reasons. First, the Respondent knew about the promotion before
the filing deadline of March 27, 2014, as the Applicant had actually accepted
the new position on March 17, 2014. If still more time was required, then the
deadline could have been extended by consent to April 11, 2014. Second, the
affidavit is irrelevant since the Applicant concedes that he would not have
been the successful candidate with respect to the selection process under
review. Third, the Respondent had assured the Applicant that it would not be
advancing a mootness argument and only changed its mind after the Applicant had
submitted his record.
[12]
The affidavit of Lin Li states in part as
follows:
On May 23, 2014, I was informed of Mr. Plato’s
permanent appointment to an AU-03 Investigator position. The AU-03 appointment
is one level above the position of AU-02…for which Mr. Plato applied in the selection
process and for which the pool expired on February 26, 2010.
[13]
I agree with both parties on the test for such a
motion. In Mazhero at para 5, Mr Justice John Evans endorsed the
following passage from Deigan v Canada (AG), 168 FTR 277 at para 3,
which sets out both the test and its rationale:
The new Federal Court Rules allow the
filing of a supplementary affidavit and of a supplementary record, however such
should only be allowed in limited instances and special circumstances, for to
do otherwise would not be in the spirit of judicial review proceedings, which
are designed to obtain quick relief through a summary procedure. While the
general test for such supplementary material is whether the additional material
will serve the interests of justice, will assist the Court and will not
seriously prejudice the other side, it is also important that any supplementary
affidavit and supplementary record neither deal with material which could have
been made available at an earlier date, nor unduly delay the proceedings.
The foregoing passage
was endorsed by a full panel of the Federal Court of Appeal in Gwasslaam v Canada (Fisheries and Oceans), 2009 FCA 25 at para 4, 387 NR 179.
[14]
In this case, the additional affidavit of Lin Li
should be admitted as evidence. Not only does the admission of this evidence
serve the interests of justice, because it shows that the Applicant now
occupies a position higher than that for which he applied for in 2007, but it
will also assist the Court in addressing below the question of mootness which
has been raised by the Respondent. In addition, the Applicant will not be
seriously prejudiced by the admission of the affidavit; indeed, counsel for the
Applicant stated at the hearing of this matter that he did not intend to
cross-examine Ms. Li if the evidence was admitted. Although the Applicant
suggests that the information in Ms. Li’s affidavit was known to the Respondent
before the filing deadlines, the fact of the matter is that the Respondent’s
former counsel only learned about the Applicant’s new position on or about May
6, 2014, and the motion for leave to file the affidavit was made soon
thereafter. Lastly, the admission of this affidavit will not and has not
delayed this judicial review application, as the motion for leave to allow the
additional affidavit from Lin Li was heard at the same time as this application
for judicial review.
IV.
Is the application for judicial review moot?
[15]
In Borowski v Canada (AG), [1989] 1 SCR
342 at 353, 57 DLR (4th) 231 [Borowski], the Supreme Court of Canada
stated that the doctrine of mootness “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”. This 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” (Borowski at 353).
[16]
In my view, this second application for judicial
review by the Applicant is moot. The issues raised by this application have
become academic and will have no practical effect on the rights of the parties.
[17]
Although the parties may disagree as to the
reasonableness of the decision under review, after nearly seven years since the
competition for the AU-02 tax auditor position commenced, this matter should
now come to an end.
[18]
The Applicant has conceded in his motion
materials “that he would not be a successful candidate
with respect to the selection process under review, irrespective of the outcome
of this judicial review application”. This is because the Applicant was
not among the top ten candidates for the AU-02 position, and so he would never
have been selected regardless of the error identified by the independent
reviewer with respect to use of the locally developed assessment tool.
[19]
Moreover, the Applicant was recently promoted to
an AU-03 position through a different selection process. The Applicant does not
have a full stake in the outcome of this application (see: Canada (AG) v Grundison, 2009 FC 212 at paras 1, 7, 9-10 (available on CanLII)).
[20]
Furthermore, there is no reason for this Court
to exercise its discretion and determine the judicial review application on its
merits. The problem was that the CRA used a locally developed and unapproved
assessment tool in lieu of a standardized assessment tool in the contested selection
process. That standardized tool is no longer in place and, as Madam Justice
Gleason noted in Plato 1 (at para 5), “it was not
in use when the [first] corrective measures were issued in this file”.
Not only that, but the position has long since been filled and the pool of
applicants created by the AU-02 competition expired in February, 2010. There is
therefore no longer a live controversy or concrete dispute and nothing that the
resolution of this case could affect.
[21]
Since this application is moot, it is not
necessary to determine the reasonableness of the corrective measures taken by
the CRA subsequent to Plato 1.
[22]
In the result, therefore, the Applicant’s
application for judicial review is dismissed, and there shall be no award as to
costs.
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