Date: 20041021
Docket: T-1224-04
Citation: 2004 FC 1455
Ottawa, Ontario, this 21st day of October, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
HARRIET LAVOIE
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms. Harriet Lavoie worked as a casual and term employee at Health Canada for two years, beginning in August 2001. She applied for a more permanent position at Health Canada in February 2003, which was to be staffed by an open competition. Health Canada interviewed her in June 2003. A month later, she was told that the staffing process was on hold. Ever since, Ms. Lavoie has been waiting to find out if she will be hired. No further steps in the staffing process have taken place. She has asked me to order the Deputy Minister of Health Canada to take some action, namely, to establish a list of the qualified applicants. This list is called an "eligibility list" under the Public Service Employment Act, R.S.C. 1985, c. P-33, s. 17(1).
[2] While a significant period of time has passed, I am not persuaded that the circumstances justify ordering the Deputy Minister to establish an eligitility list. There is a good reason for the delay. Health Canada is investigating various staffing processes at the Regional Office when Ms. Lavoie worked and the Public Service Commission is investigating the circumstances surrounding the job competition. Therefore, I must dismiss Ms. Lavoie's request.
I. Issue
[3] Has Ms. Lavoie met the test for an order compelling the Deputy Minister of Health Canada to establish an eligibility list?
II. Analysis
[4] The order Ms. Lavoie seeks is often called mandamus. It is a special kind of order, granted in very limited circumstances. This Court has set a number of conditions that must be met before it will issue this kind of order: Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), aff'd, [1994] 3 S.C.R. 1100.
[5] There are only two elements of the test in Apotex that the parties dispute in this case: (a) whether the Deputy Minister of Health Canada has a duty to take action, and (b) whether the delay in the staffing process is unreasonable in the circumstances. The respondent also argued that the order Ms. Lavoie seeks would have no practical effect. However, given my conclusions on the other issues, it is unnecessary for me to address that argument.
(a) The Duty to Act
[6] Ms. Lavoie argues that the Deputy Minister has a legal duty to establish an eligibility list, even if the job competition in question is under investigation.
[7] Here, the Public Service Commission has delegated to the Deputy Minister the authority that it usually exercises in filling positions in the public service. According to the Public Service Employment Act, the Deputy Minister "shall . . . select and place the highest ranking candidates on an eligibility list" (s. 17(1)). Ms. Lavoie argues that this requirement amounts to a legal duty to proceed with the staffing process after a job competition has taken place.
[8] However, the Act goes on to say that when establishing an eligibility list, the Deputy Minister must place the candidates in order of merit "after conducting such further investigations" as are considered necessary (s. 17(4), emphasis added). Clearly, any duty to create an eligibility list must await the completion of any ongoing investigations. The same is true in respect of the duty to select qualified candidates after a competition (s. 16(1)).
[9] Here, Health Canada decided to conduct an investigation into its staffing processes and to put this particular competition on hold until its investigation was complete. Subsequently, the Public Service Commission decided to investigate the job competition and asked Health Canada to suspend the staffing process until its study was complete. Ms. Lavoie does not challenge these decisions, but suggests that the proper course of action is for Health Canada to establish an eligibility list, even though investigations are ongoing. However, I cannot find any legal duty on the Deputy Minister to do so. The only question, then, is whether there has been an unreasonable delay.
(b) Unreasonable Delay
[10] As mentioned, the Deputy Minister is justified in suspending the creation of an eligibility list while an investigation is being carried out. However, an investigation must be conducted within a reasonable period of time. Otherwise, it could be used as an excuse to forestall taking any action indefinitely. This could cause unfairness or prejudice to applicants.
[11] To determine whether a delay is unreasonable, I must consider whether its duration exceeds what is normally required for the type of process involved, and whether it has been adequately justified: Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33 (T.D.).
[12] Ms. Lavoie argues that the investigations have taken far longer than necessary. She points to the fact that investigations into harassment in the workplace are usually completed within six months, according to Treasury Board's Policy on the Prevention and Resolution of Harassment in the Workplace. She also notes that the Public Service Commission responds to complaints only if they are lodged within three months or, in exceptional circumstances, six months of the particular incident (Policy on the Conditions Governing the Decision to Investigate Pursuant to Section 7.1 of the Public Service Employment Act). While relevant, these policies certainly do not point to any legal limit on the time frame within which investigations should be completed.
[13] Ms. Lavoie points to other factors that she argues ought to be taken into account, including the representations of Health Canada, the absence of satisfactory explanations, the impact of the merit principle and the prejudice she has suffered.
[14] Ms. Lavoie claims that Health Canada officials have told her repeatedly that the investigation would be completed "shortly". The investigator told her it would be finished by January 2003. Yet, the matter is incomplete. These representations are a relevant factor in determining whether the process has been delayed unreasonably (Mohammed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1677 (T.D.) (QL)).
[15] Similarly, the absence of an adequate explanation is relevant (Mohammed, above; Kalachnikov v. Canada (Minister of Citizenship and Immigration) 2003 FCT 777, [2003] F.C.J. No. 1016 (T.D.)(QL)). Here, Health Canada has merely stated that its investigation is ongoing. A draft report was ready in March 2004, but it has not been finalized. No explanation has been given for the further delay. The Public Service Commission began its investigation in July 2004. It expects to finish by December 2004. While it has not said so, I would think it likely that Health Canada is awaiting completion of the Public Service Commission's study before it finishes its own.
[16] Ms. Lavoie argues that the merit principle requires that the staffing process be carried out expeditiously. Otherwise, candidates who were unsuccessful in the competition could upgrade their skills over the course of a lengthy delay and upset the original ranking of applicants. This is a potential concern (see Canada (Attorney General) v. MacKintosh, [1991] F.C.J. No. 13 (C.A.) (QL)). However, the merit principle also cuts the other way: if there is a valid concern about the propriety of the selection process, it may mean that candidates have not been properly ranked according to merit. The merit principle requires that these concerns be thoroughly investigated.
[17] Ms. Lavoie contends that the delay has caused her personal and financial stress. She also claims that her legal position has been affected because her ability to challenge the competition, should she ultimately decide to do so, is compromised by delay. Similarly, delay increases the likelihood of the competition being challenged by others. In this respect, I believe that the ongoing investigations may actually be the best - indeed, perhaps the only - means of protecting the interests of the candidates, including Ms. Lavoie's. Since neither she nor the other candidates would have a right to appeal the results of the competition (s. 21), any irregularities in the process will presumably be revealed through the investigations. At that point, Health Canada or the Public Service Commission may take appropriate remedial action.
[18] Taking into account all of these circumstances, I cannot conclude that the delay in this case has been unreasonable. Therefore, I must dismiss Ms. Lavoie's application.
III. Disposition
[19] Ms. Lavoie's application for an order requiring the Deputy Minister of Health Canada to establish an eligibility list is denied. However, I would note that there is nothing preventing her from refiling her application if the delay continues beyond the time frame currently anticipated for completion of the Public Service Commission's investigation. Further, given the stress and anxiety that Ms. Lavoie has no doubt suffered, I make no order as to costs.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for an order requiring the Deputy Minister of Health Canada to establish an eligibility list is denied;
2. No order as to costs.
"James W. O'Reilly"
F.C.J.
| Public Service Employment Act, R.S.C. 1985, c. P-33
Consideration of applications
16. (1) The Commission shall examine and consider all applications received within the time prescribed by it for the receipt of applications and, after considering such further material and conducting such examinations, tests, interviews and investigations as it considers necessary or desirable, shall select the candidates who are qualified for the position or positions in relation to which the competition is conducted.
Establishment of eligibility lists
17. (1) From among the qualified candidates in a competition the Commission shall select and place the highest ranking candidates on one or more lists, to be known as eligibility lists, as the Commission considers necessary to provide for the filling of a vacancy or anticipated vacancies.
Open competition
(4) When establishing an eligibility list in the case of an open competition, the Commission shall, after complying with section 16 and after conducting such further investigations as it considers necessary, proceed in accordance with the following principles:
(a) persons who come within paragraph 16(4)(a) and who are qualified shall be placed, in order of merit, ahead of other successful candidates;
(b) persons who come within paragraph 16(4)(b) and who are qualified shall be placed, in order of merit, on the list immediately following any candidates mentioned in paragraph (a) of this subsection;
(c) persons who come within paragraph 16(4)(c) and who are qualified shall be placed, in order of merit, after any candidates mentioned in either paragraph (a) or (b) of this subsection; and
(d) persons who do not come within paragraph 16(4)(a), (b) or (c) and who are qualified shall be placed, in order of merit, after any candidates who come within those paragraphs.
Appeals
21. (1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.
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Loi sur l'Emploi dans la fonction publique, L.R. 1985, ch. P-33
Examen des candidatures
16. (1) La Commission étudie toutes les candidatures qui lui parviennent dans le délai fixé à cet égard. Après avoir pris connaissance des autres documents qu'elle juge utiles à leur égard, et après avoir tenu les examens, épreuves, entrevues et enquêtes qu'elle estime souhaitables, elle sélectionne les candidats qualifiés pour le ou les postes faisant l'objet du concours.
Établissement des listes d'admissibilité
17. (1) Parmi les candidats qualifiés à un concours, la Commission sélectionne ceux qui occupent les premiers rangs et les inscrit sur une ou plusieurs listes, dites listes d'admissibilité, selon le nombre de vacances auxquelles elle envisage de pourvoir dans l'immédiat ou plus tard.
Concours public
(4) Dans le cas d'un concours public, la Commission, après avoir mis en oeuvre l'article 16 et effectué toute autre recherche qu'elle juge nécessaire, établit la liste d'admissibilité en se fondant sur les principes suivants_:
a) à l'intérieur de chacune des catégories définies au paragraphe 16(4), les candidats qualifiés sont classés selon leur mérite;
b) sont placés en tête de liste les candidats qualifiés visés par l'alinéa 16(4)a), immédiatement suivis de ceux qui sont visés par l'alinéa 16(4)b), eux-mêmes précédant les candidats qualifiés visés par l'alinéa 16(4)c);
c) les candidats qualifiés n'entrant dans aucune des catégories définies au paragraphe 16(4) sont placés par ordre de mérite, après tout candidat relevant de l'une de ces catégories.
Appels
21. (1) Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1224-04
STYLE OF CAUSE: HARRIET LAVOIE v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 13, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: October 21, 2004
APPEARANCES BY:
Mr. Christopher Rootham FOR THE APPLICANT
Ms. Catherine Lawrence FOR THE RESPONDENT
SOLICITORS OF RECORD:
NELLIGAN O'BRIEN PAYNE LLP
OTTAWA, Ontario FOR THE APPLICANT
MORRIS ROSENBERG
Deputy Attorney General of Canada FOR THE RESPONDENT
OTTAWA, Ontario
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