Docket: T-1000-13
Citation: 2013 FC 1018
Ottawa, Ontario, October 8,
2013
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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MIRJANA LAKIC
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms. Lakic seeks to set aside a decision of the
Investigations Branch of the Public Service Commission [Investigations Branch],
dated May 23, 2013, whereby it declined to exercise its discretion to
investigate her complaint regarding the appointment process for a position with
the Royal Canadian Mounted Police [RCMP] as an
Administrative Support Clerk.
[2]
Her complaint had two aspects, which need only
be summarized in a most general manner. First, she alleged that she had been
offered the job orally, only to have that offer withdrawn due to a “mistake”
and second, that prospective government employers falsely used her alleged
failure to have been security cleared as justification for not hiring her.
[3]
The reason the Investigations Branch provided
for its refusal to process her complaint rested on her delay in making her
complaint:
Please be advised
that according to the [PSC’s Policy on Considerations For Investigations
Conducted Under the New Public Service Employment Act (PSEA) by the PSC
Relating to External Appointments, Non-delegated Internal Appointments and
Appointments Involving Political Influence or Fraud] [the Policy], the
decision to investigate or not is discretionary and will be determined on a
case by case basis. In deciding whether or not to investigate, the
Investigations Branch may take into account whether the matter has come to our
attention within six months of the appointment being made or proposed.
The RCMP indicates
that the pool of qualified candidates for the above-referenced appointment
process expired on March 31, 2011 with the last letter of offer issued before
that date. The matter raised concerning advertised external appointment
process 2008-RCMP-EA-HRHQ-NCR-044 took place in September 2010. However, you
contacted the PSC in February 2013. As the above matter was referred to the Investigations
Branch more than two years following the situation, we will not proceed further
with the information received. Accordingly, we have closed our file on this
matter.
As for your concerns
surrounding your security clearance, please note that the Investigations Branch
has no jurisdiction over this matter.
[4]
The facts upon which the Investigations Branch
rested its decision are confirmed in the record before the Court and are not
disputed by Ms. Lakic. Further, its finding that it has no jurisdiction
relating to the security clearance issues is not questioned.
[5]
Ms. Lakic represented herself in this
proceeding. I summarize the relevant issues for the Court as:
1.
whether she was denied procedural fairness in
not having been informed that delay was a live issue that might result in her
complaint not being considered; and
2.
whether the decision of the Investigations
Branch was reasonable, based on the record before it.
Procedural
Fairness
[6]
The fact that a decision is administrative and affects the
“rights, privileges or interests of an individual” is sufficient to trigger the
application of a duty of fairness: Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817 at para 20.
[7]
It has been found that the Investigations Branch
owes a duty of fairness on the lower end of the spectrum: Baragar v Canada (Attorney General), 2008 FC 841 [Baragar]. In Baragar,
Justice Barnes ultimately found that the duty of fairness imposed on the
Investigations Branch was not breached on the facts of that case, in part
because the applicant had ongoing communications with the Investigations Branch
and at one point, “‘reformulated’ her concerns in a lengthy written
submission.”
[8]
In this case, Ms. Lakic was not in continual
communication with the Investigations Branch after she submitted her complaint,
except to approve a request for her consent to communicate with the RCMP
regarding her file.
[9]
The respondent submits that Ms. Lakic was put on
notice that she would have to address the delay in bringing the claim because
the Investigations Branch sent her a copy of the Policy on February 28, 2013,
and indicated that it would review her complaint on the basis of that Policy. Although
Ms. Lakic was never directly asked for submissions on the issue of the delay, I
accept the respondent’s submission that in light of the Policy and the
extensive delay in filing the complaint, Ms. Lakic knew or ought reasonably to
have known that this would be an issue, and she had every opportunity to offer some
evidence or submission as to why, notwithstanding that delay, her complaint ought
to be considered. She offered no such evidence.
[10]
Therefore, I find that the Investigations Branch
met its duty of fairness, at the level required, in providing the applicant
with a copy of the Policy and advising her that her complaint would be dealt
with in accordance with that document. Upon reading the Policy, Ms. Lakic
would know that the delay was a relevant issue, and she was not prevented from
making any relevant submissions in that regard.
Reasonableness
of the Decision
[11]
I find that the decision of the Investigations
Branch not to proceed further with the complaint due to its untimely filing was
a reasonable decision.
[12]
The posting for the CR-04 position closed on
March 31, 2011. Ms. Lakic presented her complaint on February 23, 2013. It is
clear from the record that Ms. Lakic spent some time navigating bureaucracy and
determining to whom to address her claim. However, even giving Ms. Lakic the
benefit of the most lenient timeline of events, the record shows that she still
waited nearly a year and a half after the final position was filled to take
action.
[13]
The Investigations Branch does have discretion to
ignore the six month limitation and investigate a late complaint; however, that
decision is highly discretionary and Ms. Lakic did not offer any reason for her
delay. Even if admissible, Ms. Lakic provided no explanation in her affidavit,
her record, or her factum as to why she delayed bringing her claim to the Investigations
Branch. With no explanation provided, and acting within its own Policy, the
decision of the Investigations Branch not to investigate is reasonable.
[14]
Although the respondent initially sought its
costs if successful, counsel informed the Court at the hearing that it was
abandoning that claim.
[15]
Accordingly, this application must be dismissed;
however, in the circumstances, without costs.
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