Date: 20001020
Docket: 00-T-23
BETWEEN:
ALLAN BESNER
Applicant
- and -
PUBLIC SERVICE COMMISSION OF CANADA,
JOHN MOONEY and THE ATTORNEY GENERAL OF CANADA
(CORRECTIONAL SERVICES OF CANADA)
Respondents
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion on behalf of the applicant, Allan Besner, for an order extending the time to commence an application for judicial review in this Court.
[2] This case started with a complaint of harassment initiated by the applicant on January 30, 1995.
[3] On December 29, 1998, Michael Cameron released his final Investigation Case Report.
[4] On April 23, 1999, Michelle Plouffe, Senior Recourse Officer, advised that the Public Service Commission file would be closed.
[5] On June 3, 1999, Ms. Suzelle Brosseau, Employment Relations Officer of the Professional Institute of the Public Service of Canada (PIPSC), the applicant's bargaining agent, wrote a letter to Diane McCusker to request the re-opening of the investigation arguing that there had been a denial of natural justice.
[6] On June 28, 1999, Ms. McCusker responded that referring to the re-opening directive, she would not be recommending to the Commission that the case be re-opened.
[7] On August 26, 1999, Ms. Brosseau wrote again to Diane McCusker setting out what she alleged to be six violations of "procedural fairness and natural justice" and as a result asked again that the case be re-opened.
[8] Mrs. McCusker responded on October 8, 1999 that there were no grounds on which she could make a recommendation to the Commission that the case be re-opened.
[9] On March 28, 2000, the applicant, Mr. Besner, wrote to Diane McCusker, responding to her letter of October 8, 1999.
[10] In his letter, Mr. Besner had specified as follows in the first paragraph:
| Please address future correspondence to myself, with a copy to PIPSC-Vancouver. |
[11] On June 1, 2000, Mr. John Mooney, A/Director of Operations for the Public Service Commission of Canada, Recourse Branch, answered to the applicant's letter.
[12] The applicant suggests that the June 1, 2000 letter constitutes a decision for which he wants to apply for a judicial review.
[13] The applicant has not filed an application for judicial review within the thirty day period following the date he received the letter of June 1, 2000, from John Mooney.
[14] The applicant mentioned that he met Alan Phillips on August 23, 2000 and discussed the possibility of sending a further letter replying to Mr. Mooney's letter.
[15] Mr. Philips later advised that John Mooney would not meet with the applicant and his representative and that the file was transferred to Nelligan Power, for advice.
[16] Finally, on September 22, 2000, the applicant filed and served this motion to extend time to file an application for judicial review of the letter dated June 1, 2000.
[17] In reviewing the file, and even from the applicant's own counsel's admission, I find that the letter that should have been under judicial review is the letter dated October 8, 1999. Unlike the letter of June 1, 2000, the letter dated October 8, 1999 was a detailed answer to the arguments and questions raised by Suzelle Brousseau, the applicant's representative, in her letter of August 26, 1999, addressed to Ms. Diane McCusker.
[18] Nevertheless, the applicant decided to file and serve an application for judicial review of the last letter received on June 1, 2000.
[19] As counsel for the respondent suggests, the letter of October 8, 1999 from Diane McCusker stated that, after having reviewed the issue of natural justice, there were no grounds on which she could make a recommendation to the Commission to re-open the applicant's case.
[20] I am of the opinion that Ms. McCusker's letter of October 8, 1999, constitutes the decision, even though it was the second letter precising that the Commission had no intention to re-open the case.
[21] The letter of John Mooney dated June 1, 2000 cannot be seen as a decision but much more as a courtesy response to another letter of the applicant. In my view, a case cannot stay alive for ever just by exchange of letters by parties; in the case at bar, a final report was released on December 29, 1998, followed by a letter of the Commission on April 23, 1999 that the file would be closed.
[22] The applicant asked the Commission to re-open his file and re-investigate his case three times on June 3, 1999, August 26, 1999 and March 28, 2000. The Commission responded on June 28, 1999, October 8, 1999 and June 1, 2000. From those three responses, the letter of October 8, 1999 constitutes the real answer to the applicant's arguments as well as the decision for which an application for judicial review could be filed.
[23] The applicant failed to demonstrate that there is an arguable case.
[24] The applicant also failed to demonstrate a valid explanation for the delay to file and serve a judicial review application.
[25] The applicant has received the June 1, 2000 letter in early June and met his representative on August 23, 2000 and the application was finally filed only on September 22, 2000.
[26] The ignorance of the law is not an excuse.
[27] For these reasons, this motion for an extension of time is dismissed with costs.
Pierre Blais
Judge
OTTAWA, ONTARIO
October 20, 2000
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