Date: 20040430
Docket: T-1390-02
Citation: 2004 FC 633
Ottawa, Ontario, this 30th day of April, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
BRUCE LEVY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Bruce Levy is a foreign service officer in the Department of Foreign Affairs and International Trade (DFAIT). In 2001, he competed unsuccessfully for a position at the EX-1 level. He wished to appeal the results of the competition but missed the deadline while on family vacation. He filed his appeal anyway, but the Public Service Commission Appeal Board dismissed it. The Board concluded that there were no exceptional circumstances that would justify an extension of the usual appeal period.
[2] Mr. Levy argues that the Board erred and asks me to set aside its decision. I can find no error on the Board's part and must, therefore, dismiss this application for judicial review.
I. Issues
[3] Mr. Levy raised three issues:
1. What is the appropriate standard of review in respect of the Board's decision?
2. Did the Board err in its interpretation and application of the Public Service Employment Act, R.S.C. 1985, c. P-33 and the Public Service Employment Regulations, 2000, SOR/2000-80?
3. Do the Public Service Employment Regulations, 2000 exceed the regulation-making authority found in the Public Service Employment Act?
II. Analysis
1. What is the appropriate standard of review in respect of the Board's decision?
[4] The respondent argues that I should intervene only if I find that the Board's decision was unreasonable. Mr. Levy submits that I should overturn the Board's decision if I find that it was incorrect as a matter of law.
[5] The Board had to decide whether the facts surrounding the missed deadline amounted to "exceptional circumstances" beyond Mr. Levy's control, and prevented him from appealing within the usual time frame: Public Service Employment Regulations, 2000, s. 21(2) (relevant enactments are set out in an Annex). In other words, it had to determine if the facts met a particular legal standard. Courts will generally give some deference to decision-makers who must make that kind of determination and will intervene only if they arrived at an unreasonable conclusion: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (QL). Typically, a standard of reasonableness will apply. However, in the circumstances of this case, I do not need to arrive at a definitive conclusion on this issue because nothing turns on it. In my view, the Board's decision was correct.
2. Did the Board err in its interpretation and application of the Public Service Employment Act and the Public Service Employment Regulations, 2000?
[6] The Public Service Employment Regulations, 2000 allow unsuccessful candidates to appeal the results of a competition, but sets a tight 14-day period for doing so (s. 21(1)). The Regulations also provide an exception to the usual deadline in exigent circumstances. Specifically, the Regulations say that a person can file a late appeal if "exceptional circumstances beyond the candidate's control prevent their bringing an appeal within that period" (s. 21(2)). In order to fit within this exception, candidates have to provide evidence to satisfy three criteria:
• there must be "exceptional circumstances";
• those circumstances must have been "beyond the candidate's control"; and
• those circumstances must have prevented the candidate from filing an appeal within the usual time frame.
[7] Here, the Board concluded that none of these criteria were met. I will consider each criterion in turn.
A. Exceptional Circumstances
[8] Normally, a person challenging a job competition must file an appeal within 14 days of being informed of the results. That time period runs from the point at which the candidate is sent the results by e-mail (Regulations, s. 20(c)).
[9] Mr. Levy left Ottawa on June 27, 2002 to spend a holiday with his family camping in northern Europe. The next day, DFAIT sent out an e-mail informing candidates of the results of the competition. The appeal period lasted until July 12, 2002. The next day, a Saturday, Mr. Levy returned from holiday, opened his e-mail, discovered he had missed the appeal period, and prepared his materials. He filed his appeal on the next business day, Monday, July 15, 2002. Do these amount to exceptional circumstances?
[10] The Board said that taking a holiday was not an exceptional circumstance. Obviously, that is true. Many employees take holidays for two weeks or longer. Mr. Levy argues that his case involves factors that make it unique and, therefore, exceptional. For instance, DFAIT had been aware for some time that he intended to appeal the results of the competition and knew about his travel plans. Further, DFAIT posted the results of the competition and, therefore, started the clock to run on his appeal period, at the only possible time that would prevent him from filing his materials in a timely way. He does not explicitly allege bad faith on DFAIT's part, but suggests that the circumstances of his case are clearly exceptional.
[11] I accept that the facts of this case are unusual, that Mr. Levy was put into a difficult position and that he suffered a hardship because of the confluence of his holidays and the appeal period. But I cannot describe his circumstances as exceptional. This was a large competition - there were 267 eligible candidates. I cannot imagine that DFAIT orchestrated the posting of the competition's results specifically to defeat Mr. Levy's appeal rights while he was on holidays.
[12] A 14-day appeal period will sometimes correspond with or fall within a candidate's holiday time. I cannot conclude that, whenever it does so, exceptional circumstances exist. Something more is required. The Board did not err when it concluded that Mr. Levy had not shown exceptional circumstances.
B. Beyond Candidate's Control
[13] Even if Mr. Levy's circumstances could be described as exceptional, could one characterize them as being beyond his control? The Board found that Mr. Levy knew that the results of the competition could be posted at any time, including while he was on holiday. He could have chosen another time to go on vacation. He was in control of his own agenda. The circumstances that delayed Mr. Levy's appeal were entirely within his control. Again, the Board did not err when it arrived at that finding.
C. Preventing Appeal
[14] Similarly, the Board was not mistaken when it concluded that Mr. Levy's circumstances did not prevent him from filing his appeal. The Board suggested that Mr. Levy could have taken steps to ensure that he was informed of the results of the competition, or that his appeal was filed on time, while he was on holiday. No doubt, it would have been inconvenient and bothersome for Mr. Levy, and perhaps for the whole family, to make those kinds of arrangements. But I cannot say that Mr. Levy was actually prevented from filing his appeal because he was out of the country. The Board did not err when it made that finding.
[15] Mr. Levy also suggested that the Board's interpretation of the Regulations was inconsistent with the merit principle as articulated in s. 10 of the Act. In order for the merit principle to have any meaning, he says, there must be a fair and effective means by which unsuccessful candidates can challenge the results of a competition. He argues that the Board's interpretation of the Regulations violates the merit principle because its effect was to extinguish his right, as an unsuccessful candidate, to challenge the competition.
[16] I agree with Mr. Levy that the spirit of the merit principle should animate and guide the interpretation of the Act and Regulations. However, the Regulations governing appeals are clear. The exception from the usual appeal period is narrow. The Board's interpretation of the Regulations flowed from its express terms. If the Board had applied the Regulations in a way that would arbitrarily, capriciously or unfairly defeat a person's appeal rights, the merit principle might well be offended. That is not, however, what the Board did here.
3. Do the Public Service Employment Regulations, 2000 exceed the regulation-making authority found in the Public Service Employment Act?
[17] As an alternative position, Mr. Levy argues that if the regulation permitting extensions to the 14-day appeal period does not apply in his circumstances, then the regulation is invalid. Parliament, he says, could not have intended to permit the Public Service Commission to extinguish rights of appeal in such an unfair manner.
[18] The Public Service Employment Act provides to unsuccessful candidates a right of appeal and allows the Public Service Commission to make regulations prescribing the period within which appeals can be made (s. 21(1)). Mr. Levy argues that it is implicit in the Act that the appeal period should run from the time an unsuccessful candidate is actually informed of the results of a competition. By contrast, the Public Service Employment Regulations, 2000 provide that the appeal period runs from the point in time when the unsuccessful candidate "is considered to have been informed" of them (s. 21). For example, Mr. Levy was "considered to have been informed" on the day that he was sent an e-mail about the results of the competition. He did not have an opportunity to read his e-mail until he returned from holiday, so he was not actually informed of the results of the competition until that day, which fell outside the stipulated appeal period.
[19] Mr. Levy submits that the Regulations are unfair, out of keeping with the spirit of the Act and, therefore, invalid. I would agree that the Regulations are strict. I would also agree that they place the burden on unsuccessful candidates to be aware of their rights, responsibilities and remedies and to take steps to protect their interests. But I do not see anything in the Regulations that is inconsistent with the Act. Parliament left the details of the appeal process to be worked out by the Commission, and it has done so. The Regulations are valid.
[20] This application for judicial review is dismissed with costs.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed with costs.
"James W. O'Reilly"
F.C.J.
| Public Service Employment Regulations, 2000, SOR/ 2000-80
Dates
20. For the purpose of section 19, an unsuccessful candidate is considered to have been informed on the day that is
...
(c) if a letter is sent by electronic media, the date it is transmitted; and
Appeal period
21. (1) For the purposes of subsections 21(1) and (1.1) of the Act, an appeal shall be brought by sending a written document to the Commission within 14 days after the date on which the unsuccessful candidate is considered to have been informed under section 20.
Exceptional circumstances
(2) Subject to subsection (3), the appeal board referred to in section 21 of the Act may authorize an unsuccessful candidate to bring an appeal after the appeal period expires if exceptional circumstances beyond the candidate's control prevent their bringing an appeal within that period.
Public Service Employment Act, R.S.C. 1985, c. P-33
Appointments to be based on merit
10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.
Idem
(2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons.
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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Règlement sur l'emploi dans la fonction publique (2000), DORS/2000-80
Date
20. Pour l'application de l'article 19, le candidat non reçu est réputé avoir été informé:
[...]
c) la date de transmission, si la lettre est transmise par un moyen électronique;
Délai
21. (1) Pour l'application des paragraphes 21(1) et (1.1) de la Loi, l'appel est interjeté par envoi d'un document écrit à la Commission dans les quatorze jours suivant la date à laquelle le candidat non reçu est réputé avoir été informé selon l'article 20.
Circonstances exceptionnelles
(2) Sous réserve du paragraphe (3), le comité d'appel visé à l'article 21 de la Loi peut autoriser le candidat non reçu à interjeter appel après l'expiration du délai d'appel, si des circonstances exceptionnelles, indépendantes de sa volonté, l'ont empêché de le faire dans ce délai.
Loi sur l'emploi dans la fonction publique, L.R.C. 1985, ch. P-33
Nominations au mérite
10. (1) Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission, et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique.
Idem
(2) Pour l'application du paragraphe (1), la sélection au mérite peut, dans les circonstances déterminées par règlement de la Commission, être fondée sur des normes de compétence fixées par celle-ci plutôt que sur un examen comparatif des candidats.
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
SOLICITORS OF RECORD
DOCKET: T-1390-02
STYLE OF CAUSE: BRUCE LEVY v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 25, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr. Justice O'Reilly
DATED: April 30, 2004
APPEARANCES:
Paul Champ FOR THE APPLICANT
Monika Lozinska FOR THE RESPONDENT
SOLICITORS OF RECORD:
RAVEN, ALLEN, CAMERON & BALANTYNE FOR THE APPLICANT
Ottawa, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
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