Date: 20060223
Docket: T-419-05
Citation: 2006 FC 241
Ottawa, Ontario, February 23, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
OLIVER ADRIAN FLECK
Applicant
and
THE ATTORNEY GENERAL OF CANADA, representing THE MINISTER OF
FOREIGN AFFAIRS and the MINISTER OF INTERNATIONAL TRADE
Respondent
REASONS FOR ORDER AND ORDER
[1] On July 11, 2000, Mr. Oliver Adrian Fleck, the Applicant, commenced employment as a foreign service officer with the Department of Foreign Affairs and International Trade (the Department), as it then was. His employment, as part of the Foreign Service Development Program (FSDP), was subject to a five-year probation period. On July 22, 2004, Mr. Fleck's employment was terminated; in the terms of the Department, he "was rejected on probation". In addition to filing a complaint with the Canadian Human Rights Commission (CHRC) and a grievance of his termination, he has brought this application in respect of certain aspects of his employment.
[2] Mr. Fleck initially brought this application for judicial review to force the Minister of Foreign Affairs (the Minister) to complete three administrative tasks related to but subsequent to the termination of his employment with the Department. These tasks were:
- The holding of a final level hearing into his grievance;
- The transmittal of forms related to the transfer of certain pension funds to Public Works and Government Services Canada; and
- The completion of performance appraisals for the period between August 2002 and July 2004.
[3] Mr. Fleck acknowledges that the first two tasks have now been completed; all that remains is the question of outstanding performance appraisals. Further, Mr. Fleck is not pursuing his requests for declaratory relief or his arguments related to the Canadian Charter of Rights and Freedoms.
[4] Mr. Fleck seeks an order of mandamus of this Court to force the Minister to complete the missing performance appraisals.
[5] The sole issue before me is whether mandamus should issue to force the Minister to prepare and deliver the missing appraisals. Before a court will issue an order for mandamus, the following requirements, inter alia, must be met (Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (F.C.A.), aff'd [1994] 3 S.C.R. 1100):
- there must be a public legal duty to act;
- the applicant must have a clear right to performance of the duty;
- the order sought will be of some practical value or effect; and
- there must be a demand and a refusal to perform the duty.
[6] With respect to the performance reviews, what is missing? In a document dated March 26, 2004, Mr. Fleck received one performance review for the period of July 11, 2000 to August 20, 2002. During the hearing of this application, it came to light that an appraisal for the period of November 7, 2003 to May 2, 2004 does exist. I have received confirmation that a copy of this evaluation has now been provided to Mr. Fleck. Thus, the only missing appraisals - and those for which an order of mandamus could issue - are those for the period of August 21, 2002 to November 6, 2003.
[7] I am prepared to accept that the Minister has refused to prepare the missing appraisals. In a letter dated January 6, 2006, the Respondent advised Mr. Fleck and this Court that Mr. Fleck's supervisor, for at least part of the period in question, has left the public service and is not available to complete the appraisal. That appears to me to be a refusal. However, that is the only element of the test that Mr. Fleck may satisfy; he fails on the other three.
[8] First, I can see no "public legal duty" for the Minister to provide the performance appraisals. Mr. Fleck has not provided evidence that would establish an obligation to provide performance reviews to probationary foreign service officers. It is not enough for Mr. Fleck to merely state that it is "customary" for public service employees to be granted regular reviews and that foreign service officers receive reviews at certain intervals. I have no basis upon which to decide whether this is a customary practice of the Department, a contractual duty, or any type of enforceable obligation.
[9] Further, I am unable to determine whether performance appraisals must be supplied to probationary officers who have been dismissed. Thus, I cannot conclude that Mr. Fleck, as a former employee, has any clear right to performance review for periods when he was employed.
[10] The third of the requirements - the value or effect of performance - is also problematic. Mr. Fleck was direct in response to my questions of the possible effect that any order of mandamus would have. He conceded that the missing reviews would have no impact on past wages. This is because, during the relevant periods, he was working in an "Acting" post, meaning that he was paid on a different and higher scale than would otherwise have been the situation. He acknowledges that the only possible benefit would be to give him evidence to assist in his grievance process and in his claim before the Canadian Human Rights Commission (CHRC). At this stage, his grievance has been denied and he has appealed the final level grievance to the Public Service Labour Relations Board (PSLRB). His claim to the CHRC is on hold pending the outcome of the grievance process.
[11] The flaw in Mr. Fleck's argument on this point is that I have absolutely no evidence before me that demonstrates that the missing appraisals would assist him in the appeal of his dismissal. I have no evidence that Mr. Fleck was dismissed due to poor performance. In short, I have nothing to show that these performance appraisals are even relevant to the PSLRB or CHRC determinations. In these circumstances, I am unable to conclude that the missing performance appraisals and, hence an order of mandamus by this Court, would be of any practical value or effect.
[12] In conclusion, I decline to exercise my discretion and issue an order of mandamus to force the Minister to complete the missing performance appraisals. Mr. Fleck has not satisfied me that the Minister is under a public legal duty to provide the appraisals, that Mr. Fleck has a clear right to any further appraisals or that the granting of the order would be of any practical use or effect. The application will be dismissed.
[13] The Respondent seeks costs. However, I note that the Department responded very slowly to Mr. Fleck's requests for the information that he sought. Had the information been provided on a timely basis, it is arguable that this application would not have been necessary. Accordingly, in my discretion, I decline to award costs.
ORDER
This Court orders that:
1. The application is dismissed;
2. No costs are awarded.
"Judith A. Snider"
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