Date: 20030808
Docket: T-900-03
Citation: 2003 FC 963
BETWEEN:
Dr. NOËL AYANGMA
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
O'KEEFE J.
[1] This is a motion by the applicant, Dr. Noël Ayangma (the "applicant") for an order staying the respondent's (Health Canada) decision dated May 16, 2003 to continue with the selection process 03-NHW-AT-CCID-001 pursuant to subsection 10(1) "relative merit" as opposed to subsection 10(2) "individual merit" of the Public Service Employment Act, R.S.C. 1985, c. P-33, until the Public Service Commission has completed its investigation into the proposed selection process.
[2] The applicant is employed by the respondent having commenced working with the respondent in January 1999 as Regional First Nations and Inuit Health Information System Coordinator at the PM-04 level.
[3] At the end of 1999, the functions of the Regional Project Coordinator positions evolved and the need for a Program/Project Manager arose and there was a need to update and review the original Regional Project Coordinator's job description.
[4] The applicant stated in part in his affidavit:
5. I was informed and verily believe that all the seven regions referred to in para.2 of this my Affidavit were provided financial resources to staff the positions of Project/Program Managers regionally. I was also informed and verily believe that at the same time, the Department was involved in rewriting the job descriptions of employees including those of Regional Project Coordinators to reflect the actual functions which were performed by the Regional Project Coordinators and was included in the Universal Classification Standard (UCS). This exercise resulted in some changes to the original job descriptions. See Exhibit B (UCS-PM-04 Alberta, See Exhibit C (UCS-PM-04 Atlantic) See Exhibit-D (UCS-PM-04 Saskatchewan)
6. The final Atlantic version and the new job description for the Regional Project Coordinator (UCS was approved and signed by the then Regional Director, Al Garman, on February 10, 2000. And since then, I have been performing both the functions of Regional Project Coordinator and those of Regional Program Manager pending the completion of the selection process of the Regional Program Manager and this without being paid. See Exhibit C (UCS-PM-04 Atlantic)
7. Early 2001, the Alberta region started the process of filling the Regional Program Manager's position (PM-05). I am informed and verily believe that the selection process used by the Alberta region was made by way of reclassification of the Regional Project Coordinator updated and review job description as opposed to the original (1998) job description of the Alberta Regional Project Coordinator position. See Exhibit-B (UCS-PM-04 Alberta)
8. I am also informed and verily believe that the reclassification of the Alberta Regional Project Coordinator's position PM-04 to Regional Program Manager's PM-05 referred to in para. 7 was performed on the basis of the updated and reviewed UCS job description which better reflected at the time, the functions performed by the Alberta Regional Project Coordinator. See Exhibit-B (UCS-PM-04 Alberta)
. . .
15. On September 26, 2001, the Alberta Region appointed Mel Maclean, the incumbent of the Alberta Regional Project Coordinator's position (PM-04) whose position was reclassified from the updated and reviewed USC job description to the reclassified Regional Program Manager's position (PM-05). I have also conducted an inquiry and verily believe that the job description of the Atlantic region Program Manager's position is identical with the Alberta reclassified position Regional Project Manager's position used in staffing the Alberta Regional Program Manager's position. See Exhibits-B, L-1 and P-2
. . .
27. I have also conducted an inquiry and verily believe that the activities and demands of the updated and reviewed job description which are described in the Atlantic Project Coordinator UCS PM-04 which are similar to those contained in both the Alberta and the Atlantic Program Manager's (PM-05) job descriptions was signed and approved by Al Garmen on February 20, 2000.
28. After the Alberta region had officially reclassified its existing, updated and reviewed Regional Project Coordinator's position to the Regional Program Manager's position, on September 28, 2001, and though aware of this reclassification, the Atlantic region did not reclassify the Atlantic position. Rather the Respondent offered me the position on an acting basis pending the determination of the selection process.
29. I have conducted an inquiry and verily believe that though aware of the selection process used by Alberta the latter reclassified the position and converted the Regional Project Coordinator's position into the Regional Program Manager's position, the respondent did not follow the same process in my situation, rather the respondent claimed that the Regional Program Manager's position was a new position and therefore should be filled via a competitive process under 10(1).
[5] After the applicant objected to the selection process being used, the respondent indicated that it was going to continue with the same process.
[6] The applicant filed a complaint with the Public Service Commission requesting an urgent determination of this issue.
[7] The respondent did not agree to stop its selection process until the Public Service Commission made its decision. As a result, the applicant has made this application for a stay.
[8] Issue
Should a stay be granted?
Analysis and Decision
[9] The relief in the form of a stay that is being requested is injunctive relief against the Crown.
[10] The respondent argued that injunctive relief is not available against the Crown. Pratte J. of the Federal Court of Appeal in C.I.A.C. v. The Queen, [1984] 2 F.C. 866 (C.A.) stated at pages 869 to 870:
It follows from the foregoing that, if this were an issue between individuals, I would grant the injunction requested. However, the interlocutory injunction requested by the appellants is directed against Her Majesty: what the appellants are attempting to prevent is the transfer of the lands at issue by Her Majesty. There is a rule of long standing that the courts cannot issue an injunction against the Crown. This rule may seem archaic, but this Court has recently [Grand Council of the Crees (of Quebec), et al. v. The Queen, et al., [1982] 1 F.C. 599 (C.A.).] held that it still applies and that it was not abolished by the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10]. In these circumstances, I consider that this recent decision must be followed until the legislator or the Supreme Court of Canada decides otherwise.
[11] I am bound by this decision and consequently, I deny the motion for a stay.
[12] Because of my finding, I will not deal with the three part test which must be satisfied in order to grant injunctive relief.
[13] There shall be no order as to costs.
"John A. O'Keefe"
J.F.C.
Toronto, Ontario
August 8, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-900-03
STYLE OF CAUSE: Dr. NOËL AYANGMA
- and -
HER MAJESTY THE QUEEN
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: Thursday, June 5, 2003
REASONS FOR ORDER OF O'KEEFE J.
DATED: Friday, August 8, 2003
APPEARANCES:
Noël Ayangma, Self-Represented
FOR APPLICANT
Sandra Doucette
FOR RESPONDENT
SOLICITORS OF RECORD:
Dr. Noël Ayangma, Self-Represented
25 England Circle
Charlottetown, Prince Edward Island
C1E 1W6
FOR APPLICANT
Department of Justice
Atlantic Regional Office
Suite 1400 - Duke Tower
5251 Duke Street
Halifax, Nova Scotia
B3J 1P3
FOR RESPONDENT
FEDERAL COURT OF CANADA
Date: 20030808
Docket: T-900-03
BETWEEN:
Dr. NOËL AYANGMA
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
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