Adams v. Canada (Attorney General), 2003 FCT 99

Date: 20030129

Docket: T-1249-01

Neutral citation: 2003 FCT 99

Toronto, Ontario, Wednesday the 29^th day of January, 2003

PRESENT:      The Honourable Madam Justice Heneghan

BETWEEN:

                                                              MAURICE E. ADAMS

Applicant

- and -

                              THE ATTORNEY GENERAL OF CANADA, THE PUBLIC

                                      SERVICE COMMISSION APPEAL BOARD, and

                                  THE DEPARTMENT OF FISHERIES AND OCEANS

Respondents

                                               REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                 Mr. Maurice E. Adams (the "Applicant") seeks judicial review of the interlocutory decision of Chairperson Giffin dated June 4, 2001. In her decision, made in her capacity as Chairperson of an Appeal Board constituted pursuant to section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended (the "Act"), she dismissed the Applicant's appeal arising from a job competition for appointment to the position of Superintendent, Marine Communications and Traffic Services, Department of Fisheries and Oceans (the "Department"). Chairperson Giffin found that the Appeal Board lacked jurisdiction over most of the allegations raised by the Applicant, pursuant to section 21(4) of the Act.

FACTS

[2]                 The Applicant is an employee of the Department. In early March 1999, job competition number 99-DFO-CCID-NFC-47 was posted for the position of Superintendent, Marine Communications and Traffic Services. The Applicant submitted his application for the position on March 22, 1999.

[3]                 On July 6, 1999, a Selection Board, comprised of Ms. Donna O'Driscoll, Mr. Ray Browne and Captain Alan Rowsell, interviewed the Applicant. Ms. O'Driscoll served as the Chair.

[4]                 The Applicant received written notification on August 2, 1999 of the eligibility list determined by the Selection Board. The Applicant placed fifth in the competition and was not included on the first eligibility list. Subsequently, he requested a Post Board Review and access to all information related to the competition, as well as information concerning the appeal process. On August 20, 1999 the Applicant filed a Notice of Appeal with the Registrar, Appeals and Recourse Branch, Public Service Commission, pursuant to section 21(1) of the Act.

[5]                 The Applicant made several requests for the disclosure of information relating to the competition, including the handwritten notes made by members of the Selection Board during interviews. He received conflicting responses about the availability of the notes and was ultimately advised by Ms. O'Driscoll that the handwritten notes had been "destroyed" but that consolidated typewritten notes were available. The typewritten notes were disclosed to the Applicant in due course.

[6]                 The Applicant made various requests, through the Public Service Commission, for further and better disclosure of information by the Selection Board relating to the destruction of the handwritten notes and the creation of the typed version. He also made requests for a disclosure order and for an order extending the disclosure period. Both requests were denied by the Public Service Commission.

[7]                 On November 4, 1999 the Applicant filed his original allegations with the Department. The allegations were subsequently amended prior to the commencement of the hearing on November 25, 1999. The hearing was conducted over three days, that is November 25, 1999, November 26, 1999 and December 13, 1999.

[8]                 Ms. O'Driscoll, the Chairperson of the Selection Board, made representations on behalf of the Department but was not cross-examined by the Applicant, despite his request to do so.

[9]                 On January 6, 2000, Mr. Michael Sloan, Chair of the Appeal Board, released his decision and allowed the appeal, on the basis of defects in two questions posed in the interview. The Appeal Board found that two questions were unclear and that the Selection Board had failed to assess written communication abilities. The Appeal Board recommended corrective measures relative to these matters and allowed the appeal.

[10]            On February 9, 2000, the Applicant commenced an application for judicial review in the Federal Court of Canada, Trial Division relative to the decision of Mr. Sloan. On February 13, 2000 he also filed a formal complaint with the Office of the Privacy Commissioner alleging improper destruction of personal information relating to him, that is, the handwritten notes maintained by the Selection Board during the interview process for the job competition.

[11]            By letter dated March 25, 2000, the Public Service Commission issued corrective measures concerning the two questions identified by the Appeal Board and the assessment of written communications. By the same letter, the Public Service Commission also directed that no appointments be made from the eligibility list.

[12]            On March 31, 2000, the Public Service Employment Regulations, 1993 were repealed and replaced by the Public Service Employment Regulations, 2000 (the "PSER 2000"). These regulations provided candidates for a second eligibility list resulting from corrective measures with a new legal entitlement, in order of rank, to extended PM-06 acting appointments should suitable opportunities arise during the valid time period of the list.

[13]            On or about May 5, 2000, following implementation of the corrective measures, a new eligibility list (the "second eligibility list") was posted. This list included three candidates, in order of merit. They were Gary Rose, Dennis Pike and the Applicant.

[14]            On May 21, 2000, in response to the issuance of the second eligibility list and pursuant to section 21(1) of the Act, the Applicant filed an appeal against the proposed appointments identified in this list. A second Appeal Board (the "second Appeal Board") was appointed pursuant to section 21(1) of the Act. A hearing commenced on September 26, 2000 but at the request of counsel for the Applicant that hearing was adjourned by Chairperson Judith H. Giffin pending the conclusion of the judicial review proceeding that the Applicant had begun in the Federal Court of Canada, Trial Division, against the January 6, 2000 decision of the first Appeal Board.

[15]            Further to a Notice of Status Review, that application for judicial review was dismissed by Order dated December 19, 2000 and without adjudication on its merits.

[16]            The proceedings of the second Appeal Board were reconvened on February 22, 2001. At the beginning of the hearing, the departmental representative submitted that most of the allegations raised by the Applicant in his Notice of Appeal did not address the corrective measures that had been taken by the Department and that, with one exception, the other

allegations were beyond the scope of review permitted by section 21(4) of the Act.

[17]            Arguments were presented by the parties and an opportunity was provided to allow both parties to prepare written submissions, including submissions on the interpretation of subsections 21(3) and 21(4) of the Act. Following receipt and review of those submissions, the second Appeal Board delivered an interlocutory decision on June 4, 2001.

[18]            In her decision, Chairperson Giffin made the following determination:

At the 22 February 2001 reconvening of the appeal hearing, the appellant was asked to characterize which of his nine allegations could be said to be the result of corrective measures taken by the Commission pursuant to subsection 21(3) of the Public Service Employment Act. The appellant declined to so categorize his allegations.

Having considered both the findings of appeal board chairperson Sloan in his decision of 6 January 2000 and the allegations advanced by the appellant in his letter to the departmental representative of 13 July 2000, I am in agreement with the department that only part of allegation 8 dealing with question five (5) used in the assessment of personal suitability qualifications related to the defects identified by chairperson Sloan in his decision and comprises part of the corrective measures taken by the Commission pursuant to subsection 21(3) of the Public Service Employment Act.

Interlocutory Ruling (4 June 2001), Public Service Appeal Board. Applicant's Record, Vol. 1, Tab 2, p. 43 [emphasis added].

[19]            The Applicant now seeks judicial review of the decision that only one part of allegation 8 can be dealt with by the second Appeal Board. The effect of the ruling by the second Appeal Board is to dispose of the remaining allegations raised by the Applicant in his appeal.

APPLICANT'S SUBMISSIONS

[20]            The Applicant argues that the second Appeal Board erred in refusing to consider the substantive effect upon him of the denial of his right to cross-examine relative to the consolidated notes, at the proceedings before the first Appeal Board. Here, the Applicant acknowledges that Johnson v. Canada (Attorney General) (1998), 145 F.T.R. 108, aff'd (1999), 249 N.R. 136 (F.C.A.), stands for the position that appeals pursuant to section 21(4) of the Act are limited to an assessment of corrective measures implemented in accordance with the merit principle.

[21]            The Applicant submits that the right to procedural fairness is beyond and different from "an allegation subject to corrective measure", contemplated in Johnson, supra and subsections 21(3) and (4) of the Act. The Applicant also argues that a continuing breach of natural justice occurred when the second Appeal Board made its ruling on jurisdiction. He says that the failure of the first Appeal Board to address the inclusion of hearsay evidence, that is the consolidated notes, also amounts to a breach of procedural fairness.

[22]            The Applicant argues that the failure of the second Appeal Board to address the procedural fairness issue arising in the first appeal constitutes a reviewable error. He relies on Tsatsakis v. Canada (Attorney General) (1998), 152 F.T.R. 146 to support his argument that this admission of hearsay evidence into a hearing without providing the other party with a right of cross-examination violates the principles of natural justice. In that case, which also involved a

proceeding under the Act, an investigator's report compiled from interview notes was used at a hearing. The Court held that the principles of natural justice were violated when members of the Selection Board were not produced for cross-examination.

[23]            The Applicant further argues that, on the basis of Danyluk v. Ainsworth Technologies, [2001] 2 S.C.R. 460, issue estoppel does not apply where the breach of natural justice is a continuing one. The purpose of the principles governing issue estoppel is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done. Here, the Applicant says that the administrative structure worked an injustice and the principles of issue estoppel should not be rigidly applied.

[24]            He further refers to Jain v. Canada (Attorney General) (1999), 173 F.T.R. 92 and Murphy v. Canada (Attorney General), [1999] 2 F.C. 326 (T.D.) where the failure to disclose an assessor's manual used in the examination for a job competition constituted a reviewable error.

[25]            The Applicant argues that he was unable to participate in the first Appeal Board hearing in a meaningful way because he was deprived of the opportunity to discover the handwritten notes. He also submits that the destruction of these handwritten notes constitutes an infringement of his personal rights under the Privacy Act, R.S.C. 1985, c. P-21, as amended and his right to security of the person protected under section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11 [hereinafter the "Charter"].

[26]            He argues that the typewritten, consolidated notes do not accurately or completely reflect what occurred at the interview. He says that the refusal of the first Appeal Board to allow him to cross examine Donna O'Driscoll further breached his right to procedural fairness.

[27]            Finally, the Applicant submits that this interlocutory ruling now under review is the effective, final determination of his second appeal. It is timely for him to seek judicial review of the decision of the second Appeal Board even though it is entitled an "interlocutory" decision.

RESPONDENTS' SUBMISSIONS

[28]            The Respondents frame their position in terms of the standard of review applicable to a decision of an appeal board constituted pursuant to section 21(4) of the Act. They submit that correctness is the appropriate standard when dealing with an Appeal Board's interpretation of its statutory jurisdiction. In this regard, the Respondents rely on Johnson, supra.

[29]            As well, the Respondents argue that the decision of Chairperson Giffin is correct. The Applicant failed to state his allegations in the context of the corrective measures taken by the Commission, in response to his first appeal, and the matters raised in the second appeal were outside the jurisdiction of the second Appeal Board.

[30]            In any event, the Respondents say that the arguments advanced by the Applicant in this judicial review proceeding relate to alleged defects of the first Appeal Board hearing. The Applicant is effectively asking the second Appeal Board to review the decision of the first Appeal Board, a body of equal status. This is clearly beyond the power of the second Appeal Board.

[31]            The appropriate course for the Applicant to challenge procedural errors arising from the first Appeal Board hearing was to commence an application for judicial review relative to that earlier hearing. Although the Applicant had done so, the application was dismissed for delay, by Order of Justice Blais of the Federal Court, Trial Division, made on December 19, 2000.

[32]            The Respondents also argue that even if the decision of the first Appeal Board had a continuing effect upon the subsequent appeal, section 21(4) of the Act imposes a limit on the possible grounds of appeal by clearly defining the limited jurisdiction of an Appeal Board to review the corrective measures implemented under section 21(3) of the Act.

[33]            Finally, the Respondents note that this limitation on further appeals allows closure to the employment selection process, as stated in Johnson, supra, at paragraph 14.

ANALYSIS

[34]            This application is brought pursuant to the Federal Court Act, R.S.C. 1985, c. F-7, as amended. Section 18.1(4) sets out the grounds of review as follows:

[35]            Judicial review is not generally available in relation to interlocutory decisions; see Szczeka v. Canada (Minister of Employment and Immigration) (1993), 116 D.L.R. (4^th) 333, 170 N.R. 58 (F.C.A.). Although the decision under review here is described by the decision maker, that is the second Appeal Board, as an "Interlocutory Ruling", it is a determination that most of the allegations raised in the Notice of Appeal are beyond the jurisdiction of the Appeal Board. Consequently, that decision is in substance a final decision in relation to the matters that the Appeal Board determined were beyond its jurisdiction. The application for judicial review, then, has been brought in an appropriate manner.

[36]            The jurisdictional finding made by the second Appeal Board arises from section 21 of the Act. This provision governs the right of appeal relating to certain competitions and appointments within the federal public service. Section 21 provides as follows:

[37]            The purpose of section 21 is to ensure that appointments to the public service are based on merit. I refer to Charest v. Canada (Attorney General), [1973] F.C. 1217 (C.A.) where the Court commented on this at pages 1220-1221:

Under section 10 of the Public Service Employment Act, "Appointments to ... the Public

Service shall be based on selection according to merit ...". The holding of a competition

is one means provided by the Act to attain the objective of selection by merit. However,

it is important to remember that the purpose of section 21 conferring a right of appeal on

candidates who were unsuccessful in a competition is also to ensure that the principle of

selection by merit is observed. When an unsuccessful candidate exercises this right, he is

not challenging the decision which has found him unqualified, he is, as section 21 indicates, appealing against the appointment which has been, or is about to be, made on the basis of

the competition. If a right of appeal is created by section 21, this is not to protect the

appellant's rights, it is to prevent an appointment being made contrary to the merit principle.

As, in my view, this is what the legislator had in mind in enacting section 21, it seems

clear that a Board appointed under this section is not acting in an irregular manner if,

having found that a competition was held in circumstances such that there could be some

doubt as to its fitness to determine the merit of candidates, it decides that no appointment

should be made as a result of that competition. Such a decision may well cause some

hardship to qualified candidates who have done nothing wrong. However, aside from the

fact that it is not an undue hardship (since candidates can always enter another competition),

one cannot admit, in order to avoid this hardship, that appointments be made in the Public

Service without ensuring that the merit principle is observed.

[38]            In the present case, the Applicant obtained partial success in appealing the eligibility list created by the selection process. Although his allegation in his first appeal addressed the fact that the handwritten notes made at the interviews were destroyed and replaced by consolidated,

typewritten notes, his appeal was allowed on the basis that two questions for candidates lacked clarity and that the Selection Board had failed to assess written communication skills. The Applicant sought judicial review of that decision but that proceeding was dismissed for delay.

[39]            In my opinion, the fact that the judicial review proceeding relative to the decision of the first Appeal Board was dismissed for delay and without adjudication on its merits does not change the consequences of that disposition. The result of that disposition is that the issues raised in that application are no longer before the Court and are not justiciable in the present proceeding. The Court can deal only with the issues raised by the application for judicial review that is now before it and that relates to the decision of the second Appeal Board.

[40]            Section 21(3) of the Act provides that the Public Service Commission may exercise its discretion to introduce necessary measures to correct a defect in a selection process, provided that those measures result in an appointment on the basis of merit.

[41]            Here, the Public Service Commission directed that corrective measures be implemented and no appointments be made from the eligibility list. A new eligibility list was created and the Applicant filed a further appeal in relation to the new list.

[42]            Section 21(4) provides a right to bring a subsequent appeal once defects in a selection process have been remedied. However, the right to such a further appeal, following implementation of corrective measures, is not unlimited. That point was addressed in Johnson, supra, a case that involved three successive appeals relative to certain appointments and corrective measures taken by the Public Service Commission.

[43]            In Johnson, supra, the appellants sought to raise new grounds of appeal that had not been raised in the first or second appeals. Those grounds were dismissed by the appeal board on the basis that they were unrelated to the remedial measures adopted by the Public Service Commission. In upholding the decision of the appeal board upon an application for judicial review, Justice Hugessen said at paragraph 11 as follows:

...it is, in my view, perfectly clear that only measures taken or failed to be taken

pursuant to subsection 21(3), i.e. measures to remedy a defect already identified

by an Appeal Board, may be made the subject of a further appeal. To put the matter

another way, the focus of subsection 21(3) is the defects and the measures taken to

correct them. A further appeal under subsection 21(4) is limited to the impact of those

measures on those defects. The three new grounds proposed by the applicants before

the third Appeal Board and again here clearly do not meet the test.

[44]            Further, at paragraph 14 of Johnson, supra, Justice Hugessen addressed the relationship between section 21(3) and 21(4) of the Act and said:

..there is nothing very dramatic or drastic about subsections 21(3) and 21(4). They

simply direct that when the Commission decides to take corrective measures rather

than to go back to the beginning and start a new competition, the relevant time for

the assessment of merit of the candidates remains the same. On the second appeal,

the corrective measures are assessed for their conformity with the merit principle but

all other matters, whether or not they might have been raised on the first appeal,

are a closed book. The legislation has made a policy choice to put closure to the

appointment process.    [Emphasis added]

[45]            The decision of Chairperson Giffin, in dealing with the second Appeal Board, exclusively addresses the question whether the Applicant's allegations before that Board relate to the corrective measures undertaken pursuant to section 21(3) of the Act and whether they lie within the jurisdiction of the Board, pursuant to section 21(4). She concluded that the allegations, with one limited exception, did not relate to the corrective measures that resulted from the Applicant's first, partially successful, appeal.

[46]            Again, I refer to Johnson, supra, where the Court determined, at paragraph 15, the applicable standard of review to this question of jurisdiction is correctness. In my opinion, the second Appeal Board correctly identified and answered the question in issue. The majority of the allegations presented by the Applicant in his second appeal do not relate to the corrective measures that followed upon the outcome of his first appeal. There is no basis for judicial intervention in the conclusion reached by the second Appeal Board.

[47]            As for the arguments raised by the Applicant concerning alleged breaches of the Privacy Act, supra, that is a matter relative to his interview before the Selection Board. The record shows that the Applicant received advice that the Department had adjusted its policies regarding information on candidate assessment to be kept on file, as per a letter from the Acting Director General of Resourcing Policy and Legislation Directorate, dated April 7, 2000. The letter confirmed that the purpose of the Public Service Commission, concerning retention of notes made by board members during interviews, was to ensure that appointments are made on the basis of the merit principle.

[48]            In my opinion, any issues arising in relation to the Privacy Act, supra, are irrelevant to this application and must be raised in another forum.

[49]            The final matter to be addressed is the argument concerning a breach of the Applicant's rights pursuant to section 7 of the Charter. That section provides as follows:

Everyone has the right to life, liberty and security of the person and the right not to

be deprived thereof except in accordance with the principles of fundamental justice.

[50]            The arguments presented by the Applicant in relation to an alleged Charter breach again relate to the destruction of the handwritten notes. That matter is not properly before the Court in this proceeding because it is unrelated to the issues that arose and were correctly addressed by the second Appeal Board.

[51]            Furthermore, that matter is not one which attracts the protection of section 7. The circumstances giving rise to a breach of section 7 of the Charter was recently considered by the Supreme Court of Canada in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 where Justice Bastarache made the following observation at paragraphs 57 and 97:

Not all state interference with an individual's psychological integrity will engage s. 7. Where the psychological integrity of a person is at issue, security of the person is restricted to "serious state-imposed psychological stress".... The words "serious state-imposed psychological stress" delineate two requirements that must be met in order for security of the person to be triggered. First, the psychological harm must be state imposed, meaning that the harm must result from the actions of the state. Second, the psychological prejudice must be serious. Not all forms of psychological prejudice caused by government will lead to automatic s. 7 violations...

...

To summarize, the stress, stigma and anxiety suffered by the respondent did not deprive him of his right to liberty or security of the person. The framers of the Charter chose to employ the words, "life, liberty and security of the person", thus limiting s. 7 rights to these three interests... Freedom from the type of anxiety, stress and stigma suffered by the respondent in this case should not be elevated to the stature of a constitutionally protected s. 7 right.

[52]            In the present case, the Applicant claims that he suffered personal stress as the result of the destruction of the handwritten notes. This stress, while real, does not amount to an infringement of section 7 of the Charter. The Applicant filed a complaint pursuant to the Privacy Act, supra. That action was the appropriate avenue for pursuit of this grievance. There is no basis to find an infringement of a constitutional right.

[53]            In the result, this application is dismissed. If the parties cannot agree on costs, the Respondents may serve and file brief submissions on costs within ten (10) days, and the Applicant shall serve and file his submissions within ten (10) days, and the Respondents may serve and file a concise reply within five (5) days after receipt of submissions from the Applicant.

                                                  ORDER

This application is dismissed. If the parties cannot agree on costs, the Respondents may serve and file brief submissions on costs within ten (10) days, and the Applicant shall serve and file his submissions within ten (10) days, and the Respondents may serve and file a concise reply within five (5) days after receipt of submissions from the Applicant.

"E. Heneghan"

                                                                                                      J.F.C.C.                    

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

                   Names of Counsel and Solicitors of Record

DOCKET:                   T-1249-01

STYLE OF CAUSE: MAURICE E. ADAMS

                                                                                                     Applicant

- AND -

THE ATTORNEY GENERAL OF CANADA, THE PUBLIC SERVICE COMMISSION APPEAL BOARD, AND THE DEPARTMENT OF FISHERIES AND OCEANS

                                                                                                Respondents

PLACE OF HEARING:                                   ST. JOHN'S, NEWFOUNDLAND AND LABRADOR

DATE OF HEARING:                                     TUESDAY, JULY 30, 2002

REASONS FOR ORDER

AND ORDER BY: HENEGHAN J.

DATED:                      WEDNESDAY, JANUARY 29, 2003

APPEARANCES BY:                                       Maurice E. Adams

For the Applicant, on his own behalf

Scott McCrossin

For the Respondents

SOLICITORS OF RECORD:                        Maurice E. Adams

For the Applicant, on his own behalf

Department of Justice

Suite 1400 Duke Tower

5251 Duke Street

Halifax, NS B3J 1P3

For the Respondents

             FEDERAL COURT OF CANADA

                                                                                        Date: 20030129

                                             Docket: T-1249-01

BETWEEN:

MAURICE E. ADAMS

                                                                                                   Applicant

- and -

THE ATTORNEY GENERAL OF CANADA, THE PUBLIC SERVICE COMMISSION APPEAL BOARD, AND THE DEPARTMENT OF FISHERIES AND OCEANS

                                                                                           Respondents

REASONS FOR ORDER

AND ORDER