Date: 20140417
Dockets:
T-606-13
T-711-13
Citation: 2014 FC 369
Montréal,
Quebec, April 17, 2014
PRESENT: The Honourable Madam Justice
Gagné
BETWEEN:
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YURI KIM
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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
Overview
[1]
These are two judicial review
applications, joined by this Court pursuant to Rule 302 of the Federal
Courts Act, RSC 1985, c F-7.
[2]
File T-606-13 deals with two
decisions by the Public Service Staffing Tribunal [the Tribunal]: the first
decision, dated March 13, 2013, dismissed a complaint by the applicant, Yuri
Kim, on the basis that it did not have jurisdiction in relation to a priority
appointment for the staffing of position 119-13272 [‘272 position] by the
Canada Space Agency [the Agency], pursuant to the Public
Service Employment Act, SC 2003, c 22 [the Act]; the second
decision, dated March 22, 2013, refused the applicant’s request to reconsider the
first decision as functus officio applied.
[3]
Meanwhile, file T-711-13
deals with a decision by the Tribunal, dated April 9, 2013, dismissing a
complaint by the applicant, on the basis that it did not have jurisdiction
pursuant to the Act in relation to an external appointment process for the
staffing of EN-ENG-04 category Operations Engineer position 119-00759 [‘759 position] by the Agency.
Preliminary
remarks
[4]
At the hearing, counsel for the applicant
informed the Court that he would not make any arguments with respect to file
T-606-13, as the employee appointed to the position at stake in that file benefited
from a priority employment. Therefore, these reasons will not deal with file T‑606-13
and the applicant’s application for judicial review of the first and second
decisions will be dismissed without costs.
[5]
Until February 11, 2013, the applicant had been
a self-represented litigant. He then contacted his bargaining unit, the
Professional Institute of the Public Service of Canada, requesting assistance for
the hearings of his applications for judicial review, which were scheduled to
be heard on February 27, 2013. The Institute agreed to provide the applicant
with legal counsel for the matters before this Court.
[6]
Applicant’s new counsel filed a motion for an
adjournment of the hearing on consent, in order to familiarize himself with the
applicant’s case. That motion was denied by the Court and on February 24, 2014,
counsel brought a motion under rule 312 of the Federal Courts Rules, SOR/98-106,
with respect to file T-711-13, seeking to file a supplementary affidavit
by Mr. Kim. Filed in support of that affidavit was a letter from the Public
Service Commission [the Commission], dated November 5, 2013, whereby the
Commission informed the applicant that it had declined to investigate most of
his allegations concerning the staffing of ‘759 position as, in its view, the
assessment of his qualifications was done pursuant to an internal staffing
process, which was not within its jurisdiction.
[7]
At the onset of the hearing, I heard both
parties’ arguments with respect to this motion and allowed the applicant to
file his supplemental affidavit. However, I reminded the parties that the
Commission’s decision was not currently under review.
Background
[8]
The applicant is an aeronautic engineer,
scientist and manager with more than forty years experience working in the
former USSR, in Israel and in Canada.
[9]
In June 2002, he began to work for the Agency as
a research scientist [the SE-RES-04 position or the SE-RES category].
[10]
On April 11, 2012, the applicant received a
letter confirming that the Agency was abolishing the SE-RES-04 position, amidst
a larger restructuring of the SE-RES category [the Work Force Adjustment]. The
applicant contends that at that time, his sector manager, Mr. A. Ng sought to
convince him to retire as he had reached retirement age. Considering he had
only accumulated 11 years of Agency pension, the applicant wished to continue
working at the organization.
[11]
On January 28, 2013, the applicant received an
email from a Human Resources Officer of the Agency, advising him that as an
employee affected by the Work Force Adjustment, his candidacy had been referred
to the manager of the ‘759 position for evaluation. Unfortunately, the Officer
joined the wrong Statement of Merit Criteria to her January 28 email. As the
right one had only been sent to the applicant on February 12, 2013, he was
given until February 15, 2013 to provide additional elements to his candidacy.
[12]
At 9:22 am on February 15, 2013, the applicant submitted
his updated CV for the ‘759 position. After the assessment of his
qualifications against the essential merit criteria of experience for the
position, the Agency determined that he did not meet all of the experience
merit criteria and so his candidacy would not be retained. By day’s end, the Agency
appointed Ms. Magdalena Wierus-Jecz to the position. Ms. Wierus-Jecz was part
of a pool of pre-qualified candidates for the Agency, established as a result
of the external advertised process 11-CSA-EA-74824, which had been undertaken
in November 2011.
[13]
On March, 13, 2013, the applicant filed a
complaint to the Tribunal regarding the appointment of Ms. Wierus-Jecz. He
contended that he was not appointed because of discrimination and that there
had been an abuse of authority in unlawfully screening out his candidacy.
[14]
The respondent filed a motion to dismiss the
applicant’s complaint on the basis that the Tribunal did not have jurisdiction
to hear complaints resulting from an external appointment process, and that Ms.
Wierus-Jecz’s appointment fell into that category.
[15]
On March 27, 2013, the Commission forwarded
an email to the Tribunal confirming that in its view, the Tribunal did not have
jurisdiction to hear the applicant’s complaint, as Ms. Wierus-Jecz was
appointed to the ‘759 position as a result of an external appointment process.
Strangely, in its November 5, 2013 decision, the Commission refused to
investigate the applicant’s complaint on the basis that when he had applied for
the ‘759 position, he was part of an internal appointment process.
The decision under
review
[16]
The respondent had provided the Tribunal with
the poster advertising the process relating to the establishment of the pool of
pre-qualified candidates in November 2011, which included Ms. Wierus-Jecz’s
candidacy. That poster indicated that all persons residing in Canada and Canadian citizens residing abroad were entitled to apply. The number identifying the
process (11-CSA-EA-74824) contained the letters EA, which stand for “external
advertised.”
[17]
Meanwhile, the complainant had contended that he
understood that he had been participating in an internal process, with the
right to file a complaint before the Tribunal. He further added that he was
qualified for the position and pointed out that it was the respondent that
referred his candidacy as a priority employee for this employment opportunity.
He claimed that the respondent committed several violations of proper staffing
procedures.
[18]
On April 9, 2013, the Tribunal found that the
appointment was made pursuant to an external appointment process and not an
internal one, and so indicated that it did not have jurisdiction to hear the
complaint (section 77 and subsection 88(2) of the Act). According to subsection
2(1) of the Act, an internal appointment process is one in which only persons
employed in the public service may be considered for the appointment. An
external appointment process is one in which persons may be considered whether
or not they are employed with the public service. However, the Tribunal
notified the applicant that section 66 of the Act provides that the Commission
may in certain circumstances investigate an external appointment process.
Issues
[19]
The only issue before this Court is whether the Tribunal
had made a reviewable error when it dismissed the complaint of the applicant
with regard to the ‘759 position.
Standard of
Review
[20]
The respondent submits that the decisions of the
Tribunal should be reviewed against the reasonableness standard, as the
decisions involved questions of mixed fact and law, the Tribunal’s procedure
and approach to hearing complaints, and the Tribunal’s interpretation of the Act
(Boshra v Canada (Attorney General), 2012 FC 681 at paras 26 to 28; Canada
(Attorney General) v Kane, 2012 SCC 64 at paras 6-7; Murray v Canada
(Attorney General), 2013 FC 49 at para 18; Canada (Attorney General) v
Beyak, 2011 FC 629 at para 43).
[21]
At the hearing, the
applicant’s counsel agreed that the standard with regard to file T-711-13
should be that of reasonableness, as it involved a question of mixed fact and
law as to whether the nomination process to staff ‘759
position was internal or external. However, he added that should this Court
engage with questions regarding the jurisdictional lines between the Commission
and the Tribunal, the decision should be subject to review on the correctness
standard (Dunsmuir v New Brunswick, 2008 SCC 9 at para 61; Seck
v Attorney General of Canada, 2012 FCA 314 at paras 16 and 17).
[22]
I agree with the parties that
the issue before this Court should be reviewed using the reasonableness
standard. The Tribunal is highly specialized, and regularly engages in the interpretation
and application of the Act, its home statute, and so it has developed a certain
expertise deserving of deference by this Court. As will be further fleshed out
below, this Court will not need to address the jurisdictional boundaries
between the Commission and the Tribunal.
Analysis
[23]
During his oral pleadings, the applicant’s
counsel argued that, as things stood, his client found himself with a right to
complain about violations of staffing procedures with regard to the nomination
process but no actual recourse for that right. The Tribunal had held that it
lacked jurisdiction to hear his complaint as it culminated with an external
appointment. As indicated above, the Commission had provided the Tribunal with
submissions to that effect, dated March 27, 2013, recommending “that the
complaint be dismissed on the grounds that the complainant does not enjoy a
right of complaint to the [Tribunal] with respect to this external appointment”
(page 93 of the respondent’s T-711-13 record). Both the decision and the
Commission’s submissions made reference to the latter’s (discretionary)
jurisdiction pursuant to section 66 of the Act to investigate external
appointment processes.
[24]
Yet, in its November 5, 2013 decision, the
Commission held that it did not have jurisdiction to investigate the
applicant’s complaint, as section 66 of the Act forbids such investigations
with regard to “internal appointment processes unless there is a reason to
believe that fraud or political influence may have occurred.” In explaining its
reasoning, the Commission noted that the applicant’s candidacy had been
referred to the position as an affected employee by the Work Force Adjustment.
The Agency assessed his application in the context of an internal process but
ultimately resorted to proceeding with an appointment from an existing pool of
qualified candidates stemming from a previous external appointment process.
[25]
According to the Tribunal and the Commission,
Mr. Kim was assessed internally in a process that ultimately led to an external
appointment. Therefore, he found himself with no recourse at either the Tribunal
or the Commission.
[26]
Applicant’s counsel argued that such a strict
interpretation of sections 66 and 77 of the Act is contrary to the spirit of
the law. In fact, this interpretation leads to an illogical gap and “absurd
consequences,” which Parliament could not have possibly intended. As the
Supreme Court of Canada in Alberta Union of Provincial Employees v Lethbridge
Community College, 2004 SCC 28 at para 46 explains, “an interpretation that
would tend to frustrate the purpose of legislation or the realization of the
legislative scheme is likely to be labelled absurd. […] It is a well
established principle of statutory interpretation that the legislature does not
intend to produce absurd consequences.”
[27]
Moreover, the applicant’s counsel points to Richardson
et al v Deputy Minister of Environment of Canada et al, 2007 PSST 7 [Richardson],
where the Tribunal said the following, with regard to Parliament’s intention to
ensure that appointment processes are not labelled “internal” or “external” in
order to escape the jurisdictions of the Tribunal and the Commission with
respect to public service employees:
[13]
However, a deputy head cannot designate an appointment process as an “external
appointment process,” and then consider only one person who is already in the
public service, since this would render the distinction between an “external
appointment process” and “internal appointment process” meaningless. Moreover,
designating an appointment process in such a way could lead to the
circumvention of recourse to the PSST, which should be available to persons
employed in the public service. Clearly, such an interpretation cannot be what
Parliament intended when it set out these definitions in the PSEA.
[14]
The onus rests on the respondent to satisfy the Tribunal that an external appointment
process was conducted to staff this position. The respondent has provided no
evidence that anyone from outside the public service was in fact considered for
this position. [Emphasis added.]
[28]
The applicant’s counsel conceded that the
question in Richardson differed from what is before this Court, as there,
the Tribunal at para 15 ultimately decided that the appointment was made
pursuant to an internal process: “although the respondent believed it
was conducting an external appointment process, by only considering one person
who was already employed in the public service, an internal appointment process
was conducted.”
[29]
For a more similar factual situation to the case
at bar, the applicant’s counsel referred this Court to the Tribunal’s decision
in St-Pierre v Canada (National Defence), 2007 PSST 32. There,
the Tribunal held that the complainants had no recourse under subsection 77(1)
of the Act because they did not apply for the position pursuant to an internal
appointment process but an external one, as they were not public service
employees at the time. Instead, the Commission would need to undertake an
investigation pursuant to section 66 of the Act.
[30]
Applicant’s counsel insisted that the applicant
cannot fall between the cracks of the Act. While he did not advance arguments
as to whether the Tribunal or the Commission should ultimately be found to have
jurisdiction in Mr. Kim’s situation, he preferred that this Court find the Tribunal
to have some residual power to hear Mr. Kim’s complaint. According to the
applicant, the Tribunal has more robust statutory powers to address his complaints.
[31]
Moreover, the respondent maintains that the Tribunal’s
decision itself was reasonable given that it considered the evidence before it,
and accordingly determined that the appointment of Ms. Wierus-Jecz was made
pursuant to an external appointment process. The applicant’s complaint relative
to this appointment was specifically barred by section 77 of the Act. The
respondent argues that this is largely a finding of fact within the Tribunal’s
particular expertise and so it is owed great deference.
[32]
In response to applicant’s counsel’s submissions
that this decision leaves the applicant without any recourse for his complaint,
the respondent argues that the applicant could file a claim before the Canadian
Human Rights Tribunal for discrimination or grieve the decision for improper
screening out of his candidacy. I note that at the hearing, the applicant’s
counsel denied either remedy was available to Mr. Kim, as the Canadian Human
Rights Tribunal only has jurisdiction with respect to discrimination matters,
while the grievance procedure is not available pursuant to Mr. Kim’s collective
bargaining agreement. Either way, this issue is not relevant for the
determination of the case before this Court.
[33]
Moreover, the respondent’s counsel contends that
the applicant has himself to blame for finding himself without any recourse, as
there was in practice no jurisdictional void. She suggested that the applicant
had complained about the merit of Ms. Wierus-Jecz’s appointment in his
submissions before the Tribunal (an external appointment), while complaining
about problems relating to his own assessment before the Commission (internally
reviewed).
[34]
Regardless, the respondent emphasized that the
applicant’s situation is not an “absurd consequence” of the Act nor should this
Court consider that the Tribunal has residual power to hear his complaint
pursuant to sections 77 and 87. The respondent conceded that there may
potentially be a legislative gap here, but the Tribunal is an administrative
tribunal, and so is limited by its statutory mandate. It has no residual power.
Nothing in the Act’s text suggests that all complaints about staffing decisions
should have recourses through the Act. In fact, the Act explicitly bars
complaints with respect to certain staffing decisions, such as priority appointments
(as was the case in file T-606-13) and deployments.
[35]
In response to that last point, applicant’s
counsel notes that unlike deployments, the Tribunal and the Commission have
been granted jurisdiction over external and internal appointments, and so Parliament
could not have intended that Mr. Kim’s situation fall in a legal vacuum between
the competing jurisdictions of the Tribunal and the Commission.
[36]
With all due respect to both parties, there
seems to be a misunderstanding or some confusion between what could be qualified
as an evaluation process or assessment of a candidacy, and an appointment
process.
[37]
By reviewing all of the evidence adduced by the
parties, I see that there were two evaluation or assessment processes: One
external process performed in October 2011, leading to the establishment of a
pre-qualified pool of candidates able to fulfill future EN-ENG-04 category
positions at the Agency; and one internal process conducted amongst the
employees affected by the Work Force Adjustment who could eventually be
reassigned to future EN-ENG-04 positions.
[38]
It is important to note that the applicant’s
complaints are not based on sections 40 or 41 of the Act. In fact, the
respondent argues that no discretionary or absolute priority applied to the
applicant.
[39]
That said, I now turn to the staffing of the
‘759 position. It should, in my view, be considered external as the applicant
and Ms. Wierus-Jecz were both concurrently considered for the position,
irrespective of the time frame and the fashion with which their candidacies were
evaluated or pre-qualified. Looking at the appointment process rather than at
the evaluation process is consistent with the wording of the Act; it does not
leave a gap in the Act or lead to any absurd consequences.
[40]
In this case, there was no official posting of
the ‘759 position as the Agency chose to use two pools of candidates for the
staffing of the position: one external and one internal. Considering the Act’s
definitions as set forth in subsection 2(1), this appointment process can only thus
be qualified as external.
Conclusion
[41]
Accordingly, I will dismiss both applications
for judicial review. As for costs, the respondent asked for $4,000 in total. He
argues that in deciding whether costs should be awarded or not, the ability to
pay is not a factor pursuant to rule 400 of the Federal Courts Rules.
The awarding of the costs should be based on the merit of the case (Solosky
v The Queen, [1977] 1 FC 663, affirmed by [1978] 2 FC 632 (CA)). Considering
the outcome of my decision, I will grant costs to the respondent in the amount
of $2,000.
JUDGMENT
THIS COURT ORDERS that:
1.
Both applications for judicial review be
dismissed;
2.
Costs are granted in favour of the respondent in
the amount of $2,000.00 inclusive of disbursement and interests.
“Jocelyne Gagné”
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