Docket: A-337-15
Citation: 2016 FCA 172
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CORAM:
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GAUTHIER J.A.
SCOTT J.A.
DE MONTIGNY J.A.
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BETWEEN:
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DAVID
LESSARD-GAUVIN
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Appellant
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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
DE MONTIGNY J.A.
[1]
This is an appeal from a decision rendered by
Mr. Justice Harrington of the Federal Court (docket T-641-15), whereby he
granted the motion to dismiss presented by the respondent and, at the same
time, dismissed his application for judicial review. That application
essentially sought to challenge the decision by an Employment and Social
Development Canada (the Department) evaluation committee, which rejected his
application for the external appointment process 2014-CSD-EA-QUE-2115 in a
decision rendered on March 24, 2015.
[2]
Despite the appellant’s very detailed written
and oral submissions, I am of the opinion that the trial judge did not err in
allowing the respondent’s motion to dismiss.
[3]
The discretionary nature of judicial review is
well settled in Canadian administrative law, and the common law jurisprudence
in this field was confirmed by subsections 18(1) and 18.1(3) of the Federal
Courts Act, R.S.C., 1985, c. F-7. Among the factors that the Federal Court
can take into consideration when refusing to hear an application for judicial
review is the availability of an adequate, effective alternative remedy: see, inter
alia, Canada (National Revenue) v. JP Morgan Asset Management (Canada)
Inc., 2013 FCA 250, at paragraphs 84 et seq.; Harelkin v.
University of Regina, [1979] 2 S.C.R. 561; Strickland v. Canada
(Attorney General), 2015 SCC 37, at paragraphs 40–41; Weber v. Ontario
Hydro, [1995] 2 S.C.R. 929; Canada (Border Services Agency) v. C.B.
Powell Limited, 2010 FCA 61; Canadian Pacific Ltd. v. Matsqui Indian
Band, [1995] 1 S.C.R. 3, at paragraphs 30 et seq.; Alberta (Information
and Privacy Commissioner) v. Alberta Teachers’ Association, [2011] 3 S.C.R.
654, at paragraph 22. The Supreme Court also reiterated that deference should
be shown when a court of appeal reviews the exercise of such discretion.
[4]
As a matter of fact, section 66 of the Public
Service Employment Act, S.C. 2003, c. 22, subsections 12 and 13 (the Act),
allows for such an alternative remedy, which was opted for, indeed, by the
appellant. That provision allows the Public Service Commission (the Commission)
to revoke an appointment or not make an appointment, or take any corrective
action that it considers appropriate if it is satisfied, following an
investigation, that an external appointment is not based on merit or that an
error, an omission or improper conduct affected the selection of the person
appointed or proposed for appointment. In view of the Commission’s wide-ranging
investigative and remedial powers and that organization’s independent nature, Judge
Harrington could reasonably conclude that the mechanism provided by Parliament through
section 66 of the Act constitutes an adequate, effective alternative remedy
that the appellant should have exhausted before submitting an application for
judicial review to the Federal Court.
[5]
It is true that, in this case, the Commission
concluded that it was not necessary to investigate the appointment process of
which the appellant complained. However, I note that the Commission made this
decision after examining the appellant’s submissions, who alleged that an abuse
of a right had been committed by the evaluation committee, and after reading
the relevant policies in this case. Specifically, the Commission took into
account the fact that the applicant’s consent is not required to contact public
service referees, and that a manager can determine the assessment methods that
he or she considers appropriate in an appointment process under section 66
of the Act. To the extent that the appellant was not satisfied with that
decision, he could have challenged it through the judicial review process (see,
by analogy, Agnaou v. Canada (Attorney General), 2015 FCA 30),
as suggested to him by Harrington J. Not having done so, he cannot now claim
that he exhausted all of his remedies.
[6]
The appellant argued that this was not the most
efficient method and it would apparently not allow him to directly challenge
the selection committee’s decision. I disagree. On the one hand, the appellant
was able to present essentially the same arguments before the Commission that
he intended to raise in an application for judicial review of the selection
committee’s decision before this Court. On the other hand, the investigation
conducted by the Commission is the mechanism chosen by Parliament as to
challenges of an external appointment, and it is not open to this Court to
override it, even if the appellant is of the opinion that it is not the best
way to proceed.
[7]
During the hearing, the appellant also referred
us to a few cases from Quebec in support of his argument that he should be able
to directly challenge the selection committee’s decision through the judicial
review process, as opposed to an application for judicial review of the
Commission for not investigating: see, in particular, Macdonell v. Quebec
(Attorney General), [2000] R.J.Q. 1674 (C.A. Que.), affd. (sub nom. Macdonell v. Quebec (Commission d’accès à l’information),
[2002] 3 S.C.R. 661; Vaillancourt v. Dion, 2010 QCCA 1499. These cases are part of a body of law that is distinct from the
applicable law in this case and involve the Court of Quebec’s refusal to grant
leave to appeal; however, such a decision is not, in itself, subject to review,
which is not the case for the Commission’s decision in the case at hand.
Moreover, those cases seem to me to confirm the principle of exhaustion of
remedies. They hold that the Court of Quebec’s refusal to grant leave to appeal
called for the exercise of the Superior Court’s superintending and reforming
power, insofar as the administrative agency’s decision thereby became final.
These cases are therefore of no help to the appellant.
[8]
As for the appellant’s argument that the
Commission’s mechanism for investigation would not permit him to obtain the
remedial action of a civil nature that he was seeking, it is groundless. In
addition, the Federal Court itself does not have jurisdiction to award damages
as part of an application for judicial review, as the Supreme Court noted in Canada
(Attorney General) v. TeleZone Inc., 2010 SCC 62, at paragraph 26. An
application for judicial review is a summary procedure, the essential purpose
of which is to invalidate unlawful decisions made by public authorities. Thus,
the inability to obtain damages before the Commission cannot constitute an
argument in support of the submission that the remedy provided for under
section 66 of the Act does not constitute an effective and appropriate remedy.
[9]
For all of these reasons, I propose that the
appeal be dismissed with costs totalling $250 (all-inclusive) in favour of the
respondent. At the request of the Court, the respondent in this case confirmed
that he would not oppose a motion for an extension of time for filing the
application for judicial review regarding the Commission’s decision not to
investigate. Given that nearly a year has already passed since the Commission
made its decision, I conclude that it is in the best interests of justice that
the appellant file his application for an extension of time in a reasonable
time frame. If the appellant chooses to avail himself of this possibility, he
must therefore file his application for an extension of time within 30 days of
this judgment.
“Yves de Montigny”
“I agree.
Johanne
Gauthier J.A.”
“I agree.
A.F. Scott J.A.”
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Certified true translation
François Brunet, Revisor
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