Cahill v. Canada (Attorney General), 2002 FCT 773

Date: 20020711

Docket: T-28-01

Neutral citation: 2002 FCT 773

BETWEEN:

                                                               THOMAS C. CAHILL,

                                                                                                                                                      Applicant,

                                                                              - and -

                                                ATTORNEY GENERAL OF CANADA,

                                                                                                                                                  Respondent.

                                                            REASONS FOR ORDER

LAYDEN-STEVENSON J.

[1]                 The applicant, Thomas C. Cahill, has been an employee in the federal public service since December 1983. On January 17, 2000, he filed a complaint with the Public Service Commission (PSC) alleging that he was not being treated in a manner that accorded with his statutory priority entitlement pursuant to subsection 30(1) of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended (the Act). Following an investigation under section 7.1 of the Act, the recourse officer, in a decision dated December 21, 2000, found that the complaint was not founded. The applicant seeks judicial review of the recourse officer's decision.

[2]                 The issue to be determined is whether this matter is moot and if it is not, whether the PSC policy regarding priority status persons contravenes subsection 30(1) of the Act.

[3]                 Until October 1999, the applicant was employed with Corrections Canada at the Bath Institution in Kingston, Ontario. On October 21^st, he left that position to relocate to Ottawa with his spouse. Under the Act, he was entitled to and took, a 5 year leave of absence known as a spousal relocation leave. When his former position at the Bath Institution was filled by another employee from the department on December 20, 1999, the provisions of subsection 30(1) of the Act came into effect with respect to the applicant. Briefly put, subsection 30(1) provides employees, on a leave of absence and whose positions are backfilled by another person, with a priority entitlement to all new positions for which they apply in the public service.

[4]                 In the fall of 1999, in anticipation of his move to Ottawa, Ontario, the applicant forwarded his resumé to the PSC and to various federal departments. He was concerned about his employment prospects because his experience was operational in nature and he was not bilingual. He wanted to obtain employment at the earliest opportunity and was prepared to accept a term position, rather than an indeterminate one, in order to get a job.

[5]                 The applicant met with the human resources consultant at the PSC and requested referral for consideration as an employee entitled to statutory priority. He requested referral to some 30 positions and was, by March 2000, referred approximately 50 times. On March 21, 2000, the applicant received a term placement in the Department of Justice and in November 2001, he accepted an indeterminate position with the Department of the Solicitor General.

[6]                 At the time that he filed his complaint in January 2000, the applicant did not have a job. The investigation into the complaint was conducted by way of a fact-finding meeting held on May 9, 2000 in Ottawa. Further information was submitted by the PSC on May 22^nd and the applicant's response to this information was submitted on May 24^th.    After the fact-finding meeting, the recourse officer sought further information from various departments. Although the applicant had obtained a position (available as indeterminate but elected, by the applicant, as term) before the date of the fact-finding meeting and had indicated to the human resources consultant that he was not interested in further referrals because of his position with the Department of Justice, he did not withdraw his complaint. He had two primary concerns regarding the manner in which he had been treated and he wished to proceed and have those concerns addressed. The first concern was that, after being referred to many term positions, he was only interviewed five or six times in six months before he received a job offer. It appeared to the applicant that after a referral, departments reassessed candidates and often screened them out. His second concern was that the component of the PSC policy dealing with the staffing of term positions, in the applicant's view, contravenes the provisions of subsection 30(1) of the Act.

[7]                 The investigation proceeded and the recourse officer's decision was rendered on December 21, 2000 in the form of a twenty-six page "Investigation Case Report". The applicant submitted his application for judicial review of the decision on January 10, 2001 requesting:

An order directing the PSC to refer the applicant to all positions for which, in the opinion of the PSC, he is qualified whether the tenure of the appointment is term or indeterminate in nature. This order is necessary to protect the applicant's statutory right under section 30(1)of the PSEA to be appointed, without competition and in priority to all other persons, to a position in the Public Service for which, in the opinion of the Commission, the employee is qualified.

Should the Court find in favor of the applicant then the applicant requests that the Court award costs, damages and/or any other award or measure that this Court finds reasonable and just as a result of the failure of the PSC to comply with section 30(1) of the PSEA and the resulting financial harm that this failure to comply caused the applicant. As of the date of this application the applicant claims damages in the amount of $25,000 in lost salary and benefits.

[8]                 Since the applicant's second request for relief was abandoned at the outset of the hearing, I do not need to deal with that issue. Suffice it to say, at some point before his attendance at the hearing, the applicant became aware that the Court lacks jurisdiction, on an application for judicial review, to grant an award of damages.

[9]                 The other issue, the question of mootness, is of greater concern. It is common ground that the applicant accepted an indeterminate position in the Department of the Solicitor General in November 2001. As a result, the provisions of subsection 30(1) of the Act, upon which the applicant relies, are no longer applicable to him because his priority status terminated when he accepted an indeterminate position.

[10]            It is therefore not surprising that the respondent argues that the application is moot. The applicant, prepared to accept that his application is moot if the Court so finds, says that he is a self-represented litigant who does not appreciate the doctrine of mootness and that he did not anticipate that, upon filing an application for judicial review in January 2001, it would not be heard until April 2002.

[11]            The respondent, relying on Borowski v. Canada (Attorney General) et al., [1989]

1 S.C.R. 342, submits that in accordance with the doctrine of mootness, if the decision of the Court will not resolve some controversy that affects the rights of the parties, the Court should decline to hear the matter. The two-part analysis, outlined in Borowski, involves consideration of: (i) whether the required tangible and concrete dispute has disappeared, and (ii) if the dispute has disappeared, whether the Court should exercise discretion to hear the case. The respondent argues that if the first question is answered in the affirmative, in other words, if there is no "live controversy", the case is moot. The respondent says that as the applicant accepted an indeterminate offer of employment in November 2001, his right to priority status ceased and the dispute has therefore disappeared. As for the second stage of the analysis, the respondent relies on Public Service Alliance of Canada v. Communications Security Establishment (1989), 97 N.R. 382 (F.C.A.) and submits that the Court should not exercise its discretion to hear the application on the merits because the PSC's policy, which indicates that departments are not required to seek priority clearance from the PSC for staffing term appointments of less than 12 months, is not a question of national importance and does not involve conflicting decisions. The respondent argues that the best that the applicant can hope for, if the Court were to find the recourse officer's decision wrong, would be for the matter to be referred back for redetermination before a different officer. Such a result can have no practical effect for the applicant who now has an indeterminate position and no longer has any priority entitlement.

[12]            I agree with the respondent that the issue here is moot because it fails to meet the "live controversy" test. A court may, nonetheless, elect to address a moot issue if the circumstances warrant. Neither the applicant's ignorance regarding the doctrine of mootness nor systemic delay constitute such circumstances. In Borowski, the Supreme Court of Canada discussed the three-fold rationale behind the mootness doctrine, which is concerned with the requirement of an adversarial context, the concern for judicial economy and the necessity of judicial restraint from intrusion into the role of the legislative branch in our political framework. The Court specifically stated that the likelihood of frequent recurrence of the same point should not, in and of itself, be a reason to hear a moot issue because it is preferable to determine the point in a genuine adversarial context except in those circumstances where the dispute will always have disappeared prior to resolution. That is not the situation here.

[13]            I conclude that when the applicant's priority status terminated in November 2001, there was no longer a live controversy between the parties and therefore the matter is moot. I am not persuaded, nor did the applicant attempt to persuade me, that judicial resources should be expended in reviewing the matter when even a favourable result, for the applicant, would have no practical effect. The application for judicial review must be dismissed. Alternatively, if I am wrong in this conclusion, I would dismiss the application, in any event, for the reasons that follow.

[14]            The applicant takes issue with the policy implemented by the PSC to deal with those individuals entitled to priority status under subsection 30(1) of the Act. Subsection 30(1) states:

30. (1) Where an employee is on leave of absence and another person has been appointed or deployed for an indeterminate period to the position that was occupied by the employee, the employee is entitled, during the leave of absence and for a period of one year thereafter, to be appointed, without competition and in priority to all other persons, to another position in the Public Service for which, in the opinion of the Commission, the employee is qualified.		30. (1) Lorsqu'il est en congé et qu'une autre personne a été nommée ou mutée pour une période indéterminée à son poste, le fonctionnaire a le droit, pendant son congé et la période d'une année qui le suit, d'être nommé sans concours et en priorité absolue à un autre poste de la fonction publique pour lequel la Commission le juge qualifié.

[15]            The evidence indicates that the PSC considers those individuals falling within subsection 30(1) to be entitled, above all others, to positions in the federal public service for which they are qualified. The PSC has set up an administrative infrastructure to link individuals entitled to priority with the jobs being staffed. There is nothing in the Act that specifies the nature of the infrastructure. Candidates with a priority can apply for positions on their own or they can access the PSC administrative infrastructure. The primary objective of the infrastructure is to ensure that there is a reasonable opportunity for priority candidates to be connected with vacancies.

[16]            The administrative infrastructure has two components and is delineated in Chapter 3 - "Priorities" of the PSC Staffing Policies and Guidelines. The first component is concerned with indeterminate positions and term positions that exceed 12 months. The PSC has a clearance and referral service regarding this component. The PSC maintains a national inventory of priority persons, which includes information regarding education and skills, mobility and the types of jobs to which the persons could be referred. The PSC searches the inventory and refers priority persons who are interested and available and who appear to meet the requirements of the positions to the relevant departments. The departments determine staffing requirements, set qualifications, assess candidates and decide who is qualified. Priority clearance is required for all appointments and will be given if the PSC does not identify any suitable priorities or if the PSC and the department agree that those priority candidates who have been referred are not qualified and that retraining is not appropriate. The departments are responsible for setting qualifications and deciding on appropriate assessment methods regarding a candidate's qualifications. The PSC assumes that the expertise regarding job content lies with the department in question. The PSC reviews the feedback to ensure that an assessment has taken place and that the results are reasonable.

[17]            The second component is with respect to shorter term positions, namely those under 12 months. This component of the system is comprised of a self-directed job search. These positions are usually advertised by the departments through posters or on the internet. Priority persons are told to apply directly to the departments that initiate these advertisements. If a priority person asks the PSC to refer him or her to such positions, the PSC will sometimes do so, depending on workload. The priority person's application directly to the department without a PSC referral does not alter the entitlement to priority and the departments are obliged to honour the entitlement. There is no requirement that a department obtain priority clearance from the PSC before filling these positions. The evidence shows that most of these shorter term positions are filled by candidates from outside the public service.

[18]            Overall, the operational preference of the PSC is to focus on the referral of priority persons to indeterminate and long-duration term jobs and to ensure that there is an alternate mechanism for direct access, by priority persons, to shorter-duration term jobs. The reasoning is that priority persons are not usually looking for term positions.

[19]            The applicant's complaint regarding the PSC policy is with respect to the second component of the infrastructure. In essence, he submits that the policy outlined in the second component has the effect of allowing the PSC to exempt term appointments under 12 months and term extensions from the provisions of subsection 30(1) of the Act. In so doing, the applicant says that the PSC distinguishes between term and indeterminate appointments when the Act makes no such distinction and the PSC's policy therefore violates the Act. He does not dispute the PSC's right to establish policy nor its right to put administrative procedures into place, however, he says that such procedures must not conflict with the statutory provision. The applicant's argument in this respect was before the recourse officer at the PSC investigation. The recourse officer found that the policy was not contrary to subsection 30(1) of the Act. It is therefore useful to set out the portions of paragraphs 74, 83 and 84 of her report where she addresses this issue.

This policy is not contrary to Section 30(1) of the Act in that the rights of individuals enjoying a priority for appointment continue to be respected. In seeking the balance between the entitlements in the law and affordable administrative processes, the PSC has focussed, in its policies, on the referral of priority persons to indeterminate and long-duration term jobs, while making sure that there is another mechanism for direct access by priority persons to shorter-duration term jobs, that is, a "self-directed job search". The PSC has the authority to set such a policy as part of the administrative

infrastructure governing the placement of those enjoying a priority for appointment.    . . .

As indicated above, the Public Service Commission is accountable for creating an administrative infrastructure which would give meaning to Section 30(1) of the Public Service Employment Act, by ensuring that candidates with a priority right to appointment are treated according to their entitlement. Clearly there are a number of players involved in the administration of a priority system, and the delineation of roles and responsibilities is therefore a complex issue.    . . . It is not an easy task to find a balance between respecting the entitlements in the law and the application of administrative processes that do it in an affordable way.

In summary, the evidence in this case indicates that Mr. Cahill was assessed against the qualifications of two positions, found qualified and was made offers of employment. He declined one and was appointed to the other. As a result, the provisions of Section 30(1) of the Public Service Employment Act were respected, albeit not within the time frame which Mr. Cahill would have desired. The policy of the PSC indicating that a priority clearance is not required for term appointments of less than 12 months, is not contrary to Section 30(1) of the Act, in that the rights of individuals enjoying

a priority for appointment continue to be respected. The PSC has the authority to set such a policy as part of the administrative infrastructure governing the placement of those enjoying a priority for appointment. While the lack of communication, or miscommunication between the various parties in the system revealed in this case would seem to suggest that greater follow-up on the part of those responsible for the priority clearance system of the PSC is warranted, I conclude that the allegations raised in this complaint are not founded.

It is with respect to these conclusions that the applicant seeks judicial review.

[20]            In Part IV of the Act, section 35 empowers the PSC to make such regulations, as it considers necessary to carry out and give effect to the Act. No regulations have been enacted. Rather, the PSC proceeded by way of policy. In Girard v. Canada (1994), 79 F.T.R. 219, Rouleau, J. discussed the distinction between a policy and a regulation. He determined that a policy does not have the force of law because it lacks the essential features of a regulation. A policy is of an administrative, not a legislative, nature. Justice Rouleau concluded, in that case, that the Court should not review the administrative policy in question. In Byer v. Canada, 2002 FCT 518, [2002] F.C.J. No. 672, Tremblay-Lamer, J. reached the same conclusion.

[21]            While a policy may be binding internally on those who are required to implement it, it cannot be used or relied upon as a vehicle to create external legal rights. The basic underlying principle is that judicial intervention in government policy is considered inappropriate in the absence of a successful challenge under the Canadian Charter of Rights and Freedoms: Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281.

[22]            I see no reason to deviate from that basic principle in the circumstances of this case. I am reinforced in my view by section 35 of the Act, referred to earlier, and by subsection 41(1) which reads as follows:

41. (1) In any case where the Commission decides that it is neither practicable nor in the best interests of the Public Service to apply this Act or any of its provisions to any position or person or class of positions or persons, the Commission may, with the approval of the Governor in Council, exclude that position, person or class in whole or in part from the operation of this Act.		41. (1) Avec l'approbation du gouverneur en conseil, la Commission peut exempter un poste, une personne ou une catégorie de postes ou de personnes de l'application de tout ou partie de la présente loi, si elle estime pareille application difficilement réalisable et contraire aux intérêts de la fonction publique.

[23]            While there is no indication that subsection 41(1) was invoked here, it is apparent, when viewing the subsection as well as the Act as a whole that Parliament intended to confer on the PSC broad powers with respect to the administration of the Act. I conclude that the intervention of the Court with respect to the policy in question is therefore inappropriate and unwarranted.

[24]            Finally, had I determined that a substantive review of the decision dated December 21, 2000 was appropriate, I would have found the conclusions of the recourse officer to be compelling. I agree that the PSC policy does not violate subsection 30(1) of the Act.

[25]            The application for judicial review is dismissed.

  

____________________________________

        Judge

Ottawa, Ontario

July 11, 2002

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

    

DOCKET:                                             T-28-01                         

STYLE OF CAUSE:                           Thomas C. Cahill v. Attorney General of Canada

                                                                                   

  

PLACE OF HEARING:                     Ottawa, Ontario

DATE OF HEARING:                       April 17^th, 2002

REASONS FOR ORDER OF:

THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON

DATED:                                                July 11, 2002

   

APPEARANCES:

                                                              

Thomas C. Cahill                                                                            ON HIS OWN BEHALF

Marie-Josée Montreuil                                                                  FOR RESPONDENT

  

SOLICITORS OF RECORD:

  

Morris Rosenberg

Deputy Attorney General of Canada     FOR RESPONDENT