Docket: A-66-18
Citation: 2018 FCA 84
| CORAM:
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DAWSON J.A.
GAUTHIER J.A.
STRATAS J.A.
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| BETWEEN:
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| GEORGE SGANOS
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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 ORDER
DAWSON J.A.
[1]
On December 1, 2017, the applicant, Mr. Sganos, filed a staffing complaint under section 77 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 with the Federal Public Sector Labour Relations and Employment Board. The evidence before the Court establishes that the staffing complaint has not yet been scheduled for any pre-hearing or hearing. On February 9, 2018, the applicant received an e-mail from one of the Board’s registry officers. The e-mail confirmed that the respondent to the staffing complaint was the Secretary of the Treasury Board “but she has asked to receive only the original complaint and the final decision for this complaint.” The e-mail went on to name the individual who was representing the respondent for the purpose of the staffing complaint.
[2]
On February 19, 2018, the applicant filed an application for judicial review in this Court. In material part the application states:
This is an application for judicial review in respect of the Federal Public Sector Labour Relations and Employment Board (FPSLREB).
On February 9, 2018, I received confirmation from the FPSLREB that the FPSLREB was communicating with the respondent of my FPSLREB complaint [File EMP-2017-11588 (Sganos)] without my knowledge. In addition, on the same day, I found out an agreement was made between the FPSLREB and the respondent that favoured the respondent. This agreement was done without my knowledge and I was only notified after the fact on February 9, 2018. I believe these actions were not lawful and as such, I would like a judicial review of these actions.
The applicant makes application for: The Court to declare the actions described above by the FPSLREB as unlawful. I would also like the Court to consider reviewing prior actions of the FPSLREB concerning my complaint that occurred more than thirty days ago.
[3]
The Attorney General, the respondent to this application, now moves to strike the application for judicial review on the ground that the application does not relate to a reviewable “matter”
within the meaning of the Federal Courts Act, R.S.C. 1985, c. F-7 that affects the applicant’s rights or obligations so that judicial review does not lie, and on the ground that the application is premature.
[4]
The applicant responds that the “secret agreement between the Secretary of the Treasury Board of Canada and the [Federal Public Service Labour Relations and Employment Board] indicated clearly that the [Board] was not acting impartially.”
Additionally, the applicant puts in issue three other actions on the part of the Board that are said to indicate that the Board did not act impartially, and failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe.
[5]
The new allegations of misconduct are not relevant to the motion before this Court. The questions relevant to the motion are whether the applicant has put in issue a “matter”
within the meaning of the Federal Courts Act and whether the application for judicial review is premature.
[6]
Together, subsections 28(2), 18.1(1) and paragraph 28(1)(i) of the Federal Courts Act permit this Court to adjudicate applications for judicial review brought in respect of the Board. However, not all conduct by an administrative body, such as the Board, triggers the right to bring an application for judicial review. Thus, for example, an application for judicial review cannot be brought where the conduct attacked in the application for judicial review fails to affect legal rights, impose legal obligations, or cause prejudicial effects. See, for example, Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605, at paragraph 29 citing Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, [2010] 2 F.C.R. 488 and Democracy Watch v. Conflict of Interest and Ethics Commission, 2009 FCA 15, (2009), 86 Admin. L.R. (4th) 149.
[7]
Assuming, without deciding, that a communication existed between the Board and the Secretary of the Treasury Board of Canada to the effect that the Secretary asked to receive only the original complaint and the final decision, this communication in no way affects the applicant’s legal rights, or imposes legal obligations on him or causes him any prejudicial effect. The Secretary is a respondent to the staffing complaint and as such the Board is obliged to provide her with a copy of all relevant correspondence, including the complaint and the final decision. It follows that the notice of application should be struck out as this is not an application brought by anyone “directly affected by the matter in respect of which relief is sought”
as required by subsection 18.1(1) of the Federal Courts Act.
[8]
I note that the applicant asserts that the alleged agreement included an agreement not to list the Secretary as the respondent. This assertion is not established in the evidence and is contradicted by the Board’s Letter Decision made on February 8, 2018. In the letter the Board states that “[t]he respondent in this matter is the Secretary of the Treasury Board”
.
[9]
There is a second reason for striking the notice of application and that is that the Board has not yet made any final decision, and the applicant has not shown any exceptional circumstances which would warrant early intervention by this Court. Any concern the applicant may have about the fairness and impartiality of the Board’s conduct is best assessed after the Board has rendered its final decision.
[10]
For these reasons I would strike the notice of application and award the costs of this
motion to the respondent, which I would fix in the amount of $700 inclusive of taxes and disbursements.
“Eleanor R. Dawson”
| “I agree.
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| Johanne Gauthier J.A.”
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| “I agree.
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| David Stratas J.A.”
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