Date: 20110916
Docket: A-450-10
Citation: 2011 FCA 253
CORAM: NOËL
J.A.
NADON J.A.
STRATAS
J.A.
BETWEEN:
RACHEL EXETER
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
This is an
appeal from the judgment of the Federal Court (per Justice Beaudry) dated
November 10, 2010.
[2]
Before the
Federal Court, the appellant brought a motion for an extension of time to serve
and file a notice of application for judicial review. She sought to set aside a
decision made on February 18, 2009 by the Public Service Staffing Tribunal. The
Federal Court dismissed the appellant’s motion.
[3]
Section
18.1(2) of the Federal Courts Act, R.S.C. 1985, c. F-7 sets a
thirty-day deadline for filing an application for judicial review. The
appellant attempted to file her application some nineteen months after this deadline
expired.
[4]
The
thirty-day deadline under section 18.1(2) of the Federal Courts Act is
extendable by the Court as a matter of discretion. That discretion is guided by
the principles set out in cases such as Grewal v. Canada (Minister of
Employment and Immigration), [1985] 2 F.C. 263 (C.A.), Laurendeau v.
Canada (A.G.), 2003 FCA 445 and Muckenheim v. Canada (Employment Insurance
Commission),
2008 FCA 249. These cases require us to consider four questions:
(1)
Does the
moving party have a continuing intention to pursue an application for judicial
review?
(2) Has the
responding party suffered any prejudice as a result of the moving party’s
delay?
(3) Has the moving
party offered a reasonable explanation for the delay?
(4) Does the intended
application for judicial review have any prospect of success?
[5]
Only the
appellant chose to file evidence on these questions. Her evidence shows that
from the very day of the Tribunal’s decision, she repeatedly took steps to try
to find out whether the Tribunal’s decision could be challenged and, if so,
how. Among other things, on a number of occasions, she asked the Tribunal’s
staff what recourses were available to her. The Tribunal’s staff advised her that
the Tribunal’s decision was final. It referred her to the privative clause in
section 102 of the Public Service Employment Act, S.C. 2003, c. 22,
which states that all decisions of the Tribunal are final. It did not tell her
about the availability of judicial review to the Federal Court. The appellant
says that the incomplete advice given by the Tribunal staff and her own review
of section 102 caused her not to bring a timely application for judicial
review. She adds that she could not afford to get legal advice from a lawyer.
[6]
Later, as
a result of finding a judicial review decision on the Tribunal’s website, the
appellant discovered that recourse could be had in the Federal Court by way of
judicial review. Within one month of that discovery, she attempted to bring her
application for judicial review and file it with the Federal Court. As she was
out of time under section 18.1(2) of the Federal Courts Act, supra,
she could not file her application. As a result, she brought a motion for an
extension of time.
[7]
The
Federal Court dismissed the appellant’s motion, finding that it was “not
satisfied with the [appellant’s] explanation for the delay.” The Federal
Court’s reasons do not explain why it was not satisfied.
[8]
In my
view, it is not necessary to examine the Federal Court’s finding about the
appellant’s explanation for the delay. This is because the appellant’s motion
fails on the alternate, equally fatal ground that her application has no
prospect of success: see Laurendeau, supra at paragraph 2 and Muckenheim,
supra at paragraph 8.
[9]
The appellant
provided the Federal Court and this Court with her intended application for
judicial review. She intends to challenge the Tribunal’s decision to dismiss a
complaint she made about an alleged abuse of authority under subsection 77(1)
of the Public Service Employment Act, supra concerning an
appointment process at Statistics Canada. During that appointment process, she
requested that a particular accommodation be made for her but she says that her
request was mishandled. She says that certain guidelines were not followed.
Further, her request was given to certain officials for input, but, in her
view, they had the illegitimate objective of wanting to terminate her
employment.
[10]
The
Tribunal dismissed the appellant’s complaint because it was filed after a
fifteen-day deadline. She filed her complaint fourteen months after the
deadline had expired.
[11]
The
Tribunal considered whether it should nevertheless accept the appellant’s late
complaint. Based on the evidence before it, the Tribunal found that there were
no exceptional circumstances preventing the appellant from filing on time. The
Tribunal found that she had enough awareness of the unsatisfactory nature of
the situation to bring a timely complaint. It based that factual finding on the
documents before it. First, there was an email written by the appellant during
the appointment process in which she expressed her dissatisfaction with the
accommodation she was receiving. Second, in her complaint, she stated that she
was not satisfied with the information she was getting during the informal
discussion of her results in the appointment process. Third, before she
received notification that she was unsuccessful in the appointment process, the
appellant filed an access to information request seeking information from her
employer.
[12]
The appellant
attempted to explain her delay by referring to the length of time it took her
employer to satisfy the access to information request. The Tribunal rejected
this as a satisfactory explanation, as it has done in other cases before it. In
the Tribunal’s view, problems that the appellant had in getting information to
prove her case could have been remedied by filing her complaint and then using the
Tribunal’s procedural rules.
[13]
Does the
appellant’s intended judicial review of this decision have any prospect of
success? To answer that question, we must first consider the standard on which
we are permitted to review the Tribunal’s decision.
[14]
In my
view, it is incontestable that the Tribunal’s decision must be reviewed on the
deferential standard of reasonableness. Many of the factors identified by the
Supreme Court as favouring deference apply to the Tribunal’s
decision: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. At the core of the Tribunal’s decision is
fact-finding, a matter on which the Tribunal is entitled to deference: Dunsmuir,
supra at paragraph 53. Further, the Tribunal’s decision involved a
fact-based exercise of discretion, and here too the Tribunal is entitled to
deference: Dunsmuir, supra paragraph 53. Finally, the Tribunal’s decision
is protected by a privative clause stating that its decisions are “final”: Public
Service Employment Act, supra, section 102. The privative clause is
a “strong indication” that review should be conducted on the basis of the
deferential standard of reasonableness: Dunsmuir, supra at paragraph
52.
[15]
Under
reasonableness review, the Court is not permitted to make its own decisions and
substitute its views on these matters for those of the Tribunal. In particular,
the Court is not permitted to redo the Tribunal’s findings of fact and
exercises of fact-based discretion. Rather, the Court is limited to considering
whether the decisions of the Tribunal fall within a range of possible outcomes
that are defensible on the facts and the law: Dunsmuir, supra at
paragraph 47. Put another way, the Tribunal is entitled to “a margin of appreciation within
the range of acceptable and rational solutions”: Dunsmuir, supra
at paragraph 47. As
a practical matter, this Court can only interfere where the Tribunal has erred
in a fundamental way.
[16]
In her
submissions, the appellant invites us to redo the Tribunal’s findings of fact by
reweighing the evidence, and then exercise our own discretion on whether the
Tribunal should have accepted her complaint. In particular, she urges us to
find that, contrary to what the Tribunal found, she had insufficient awareness
of the situation to file a timely complaint with the Tribunal. This sort of
reweighing of evidence and exercising of discretion is precisely what we are
not permitted to do under reasonableness review.
[17]
Neither
the evidentiary record nor the appellant’s submissions raise an arguable issue
that the Tribunal’s decision is unreasonable. The Tribunal’s decision, based on
the facts and discretions described in paragraphs 11 and 12, above, is within
the range of possible and defensible outcomes. The Tribunal’s decision is
reasonable.
[18]
As the
appellant’s proposed judicial review has no prospect of success, her motion for
an extension of time to file the application for judicial review must be
dismissed.
[19]
The
appellant has raised one last issue before us. Mere days before the hearing of
this appeal, the appellant gave notice of a constitutional challenge by way of
a notice of constitutional question. She sought to challenge the validity of
subsection 99(3) of the Public Service Employment Act, supra.
That subsection allows the Tribunal to decide complaints without an oral
hearing on the basis of written material alone. The appellant did not advance
this constitutional challenge before the Tribunal or the Federal Court.
[20]
The
respondent brought a motion to strike the notice of constitutional question. Before
us, the appellant complained about an irregularity in the delivery of the
motion materials to her, but in my view she received them in sufficient time
before the appeal hearing; indeed, in advance of the hearing she was able to
file written materials responding to the motion. After receiving the parties’
oral submissions, this Court granted the respondent’s motion and declined to
consider the appellant’s constitutional challenge. These are the Court’s reasons
for doing so.
[21]
The
appellant’s constitutional challenge has not been advanced in a timely way and
the factual record for the challenge is deficient: Quan
v. Cusson, 2009 SCC 62 at paragraphs 36-49, [2009] 3 S.C.R. 712. Further, there is
authority to suggest that where an administrative tribunal has the jurisdiction
to decide a constitutional question, the constitutional question must first be
raised before the tribunal: Okwuobi v. Lester B. Pearson School Board, 2005
SCC 16, [2005] 1 S.C.R. 257. Finally,
the record shows that while the matter was before the Tribunal the appellant did
not object to the Tribunal determining the matter by way of written materials
and did not request an oral hearing. She objected only after the Tribunal had
made its decision.
[22]
Before
leaving this matter, I would like to offer a brief comment on the advice the
Tribunal’s staff gave to the appellant, mentioned in paragraph 5, above, and
the possible confusion that resulted. I observe that many administrative
tribunals have adopted the practice of releasing their decisions under a cover letter
that advises of the availability of recourse against the decision and the deadline
for pursuing that recourse, all in a single sentence. This practice has much to
commend it, as it reduces the possibility of confusion and furthers access to
justice.
[23]
For the
foregoing reasons, I would dismiss the appeal with costs.
"David Stratas"
“I
agree
Marc Noël J.A.”
“I
agree
M. Nadon J.A.”
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