Tucci v. Canada (Attorney General), docket T-623-96

                                 T-623-96

IN THE MATTER OF an Application to review and set aside, pursuant to section 18 and section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended.

AND IN THE MATTER OF a decision, dated February 10, 1996 and received by the Complainant on February 15, 1996, by Mr. Ruben Benmergui, Investigator, Deployment Recourse Office, Public Service Commission of Canada, made pursuant to section 34.4 of the Public Service Employment Act, (File no. 96-RC-006).

BETWEEN:

     LUIGI TUCCI,

                                 Applicant,

     - and -

     THE ATTORNEY GENERAL OF CANADA

     (Revenue Canada Customs, Excise and Taxation),

                                 Respondent.

     REASONS FOR ORDER

GIBSON J.

     These reasons arise out of an application for judicial review of a decision (the "report") rendered by Ruben Benmergui, an Investigator designated by the Public Service Commission under section 34.4(2) of the Public Service Employment Act¹ (the "Investigator"), wherein the Investigator recommended that the deployment of Ms. Charmaine Goel to the position of Tax AU-02, Toronto West Tax Services Office be upheld. The report is dated the 10th of February, 1996.

     Provisions regarding deployment within the Public Service were added to the Public Service Employment Act (the "Act") as Part III.I of that Act by Chapter 54 of the Statutes of Canada, 1992. The right to deploy is set out in subsection 34.1(1) of the Act in the following terms:

34.1(1)      Except as provided in this Act or in any other Act, a deputy head has the exclusive right and authority to make deployments to or within that part of the Public Service over which the deputy head has jurisdiction.

"Deployment" is defined in subsection 2(1) of the Act in the following terms:

"deployment" means the transfer of an employee from one position to another;

Where a deployment has taken place, employees have a two-stage recourse process to deal with complaints. The relevant portions of sections 34.3 and 34.4 of the Act read as follows:

34.3(1)      An employee who is deployed and any other employee in the work unit to which the deployment is made may, within such period and in such manner as the Treasury Board may provide for, complain to the deputy head concerned that the deployment was not authorized by, or made in accordance with, this Act or constituted an abuse of authority.

...

(3)      On receiving a complaint under subsection (1), the deputy head shall review the deployment in such manner as the Treasury Board may direct and, after considering the results of the review, shall take such corrective action, including revocation of the deployment, as the deputy head considers appropriate.

...

34.4(1)      An employee who lodged a complaint under subsection 34.3(1), or whose deployment is the subject of such a complaint, and who is not satisfied with the disposition of the complaint or any corrective action taken in respect thereof, may, within the period provided for by the regulations of the Commission, refer the complaint to the Commission.

(2)      On the referral of a complaint under subsection (1), the Commission shall designate a person to investigate the deployment.

(3)      An investigator designated under subsection (2) shall conduct the investigation in such manner as the Commission may prescribe and give the employee who referred the complaint to the Commission, the employee who was deployed and the deputy head an opportunity to be heard.

(4)      On completion of the investigation, the investigator shall prepare and send to the employee who referred the complaint to the Commission, the employee who was deployed and the deputy head a report in writing setting out such findings and recommendations with respect to the deployment as the investigator sees fit.

     As indicated earlier in these reasons, the Investigator was "designated" in accordance with subsection 34.4(2) of the Act.

     The Applicant, along with 21 others, complained to the relevant deputy head in accordance with subsection 34.3(1) of the Act. The Applicant was dissatisfied with the disposition of his complaint. In the result, he proceeded to the second level of recourse provided by section 34.4. He now seeks judicial review of the Investigator's report arising out of the second level recourse proceedings.

     At the opening of the hearing before the Investigator with regard to the Applicant's second level complaint, at which representatives of the relevant government department were present, the representative of the Applicant pointed out that at all times relevant to the deployment in question, there were 18 other requests for deployment to the Toronto West Tax Service Office that had not been acted on. Some of those deployment requests dated back to 1994. The Applicant's representative requested an adjournment to obtain access to information regarding those outstanding deployment requests as, he alleged, that information might disclose favourable treatment of the deployed person that amounted to an abuse of authority, within the meaning of that phrase in subsection 34.3(1), on the part of the Government department.

     The investigator wrote in his report:

Mr. Lai's [the Applicant's representative] beginning submission deplored the lack of any "discovery" process whereby, in his opinion, he could have prepared a fuller case. He submitted that it was a denial of natural justice to proceed. It was explained to Mr. Lai that it was his responsibility to meet the case with the best evidence available to him. Any evidence not forthcoming in the preparation of his argument could be requested at the hearing and the investigator would rule on its probative value and admissibility.

No adjournment was granted. Information concerning the outstanding deployment requests was not provided to the Applicant and was not before the Investigator; this, despite the fact that by virtue of section 7.2 of the Act, the Public Service Commission has all of the powers of a commissioner under Part II of the Inquiries Act² for the purposes of any investigation or report by the Commission under the Act. One of the powers of a commissioner under Part II of the Inquiries Act is the power to issue a subpoena or other request or summons requiring any person named therein to bring and produce any document, book or paper that the person has in his position or under his control relative to the subject -matter of the investigation. I am satisfied that, by virtue of his designation under subsection 34.4(2) of the Act, the Investigator could have, either himself or through the Commission, compelled the production of the information that was being sought on behalf of the Applicant.

     For whatever reason, the Investigator did not pursue the request on behalf of the Applicant any further than is reflected in the paragraph from his report quoted earlier. In the terms of the quoted paragraph, the information concerning outstanding deployment requests was "evidence not forthcoming in the preparation of [the Applicant's] argument...". It was requested at the hearing. In his own words then, the Investigator "...would rule on its probative value and admissibility." The Investigator simply did not make such a ruling. In failing to do so, I am satisfied that he made a reviewable error by denying natural justice to the Applicant. That is not to say that, if the Investigator had heard argument on the "probative value and admissibility" of the requested information, he might not have ruled against the request on behalf of the Applicant by determining that the requested information was of no probative value or was inadmissible or both. The Investigator's reviewable error, on the face of the record, was in simply failing to consider the request.

     The substance of the Investigator's decision is in the following terms:

The crux of this case, as in a large portion of deployment recourse cases, is whether the deployment at issue was an abuse of authority on the part of management. Indeed the definition of "abuse" has been canvassed at length in previous deployment decisions. I will not cover the same ground here (See my decision in Burnett, File: 956009-TC, July 6, 1995), but I would like to add to the discussion and examine the facts in this case contextually to ascertain whether indeed an abuse of management's authority to deploy has occurred. My analysis of previous decisions dealing with abuse of authority and the facts in this case, along with the complainant's submission, leads me to conclude that, there may perhaps be a misunderstanding of the concepts of discretion and abuse of authority.

In discerning between these two managerial notions I am guided by Jones and de Villars in Principles of Administrative Law, (Toronto, Carswell, 1991) p. 118. They aver that "Discretion may best be defined as the power to make a decision that cannot be determined to be right or wrong in any objective way." They quote Lord Diplock in Secretary of State for Education & Science v. Thameside Metro. Borough Council, [1977] A.C. 1014 at 1064:

"The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred."

Messrs. Jones and de Villars enumerate five generic types of abuses in the exercise of discretion:

"Nevertheless, unlimited discretion cannot exist. The courts have continuously asserted their right to review a delegate's exercise of discretion for a wide range of abuses. It is possible to identify at least five generic types of abuses, which can be described as follows. The first category occurs when a delegate exercises his discretion with an improper intention in mind, which subsumes acting for an unauthorized purpose, in bad faith, or on irrelevant considerations. The second type of abuse arises when the delegate acts on inadequate material, including where there is no evidence or without considering relevant matters. Thirdly, the courts sometimes hold that an abuse of discretion has been committed where there is an improper result, including unreasonable, discriminatory or retroactive administrative actions. A fourth type of abuse arises when the delegate exercises his discretion on an erroneous view of the law. Finally, it is an abuse for a delegate to refuse to exercise his discretion by adopting a policy which fetters his ability to consider individual cases with an open mind."

While the exercise of discretion may result in an abusive process, absent any egregious proof of mala fides, discretion, in our context, is but a managerial decision-making mechanism.

Turning to the facts in this case, Mr. Lai presented no evidence nor cogent argument that would lead me to find that an abuse of authority has occurred in this case. It cannot be said that the perceived scuttling of employee expectations is an abuse of authority. Even if management had rendered a decision which might be characterised as "bad" or "incompetent" or "insensitive", (which it did not in this case), this also would not constitute an abuse. Neither, in my opinion, is the creation "unrealistic" expectations on the part of managers. It is indeed a precise and exacting threshold that must be met in any allegation of abuse of authority. Mr. Lai's submission, in my view, does not meet this standard.

Having correctly identified the issue before him as being whether the deployment constituted an abuse of authority contrary to subsection 34.3(1) of the Public Service Employment Act, the Investigator went on to consider "...the concepts of discretion and abuse of authority." He quite appropriately quoted from Jones and de Villars in Principles of Administrative Law where the learned authors identified "at least five generic types of abuses in the exercise of discretion." The second and third types of abuse identified arise "...when the delegate acts on inadequate material, including where there is no evidence or without considering relevant matters ...[or] where there is an improper result, including ...discriminatory ...administrative actions." The Investigator concluded in summary:

While the exercise of discretion may result in an abusive process, absent any egregious proof of mala fides, discretion, in our context, is but a managerial decision-making mechanism.

With great respect, the Investigator's summary conclusion begs the question. It is clear from the passages quoted from Principles of Administrative Law that there can be abuse of authority in the exercise of discretion without improper intention. Two forms of such abuse are acting on inadequate material or without considering relevant matters and acting in a discriminatory manner, the latter of which might flow from acting on inadequate material or without considering relevant matters. These forms of abuse can constitute "an abuse of authority" in the exercise of discretion.

     Returning to the request on behalf of the Applicant for material in the hands of the Government department, concerning outstanding deployment requests, I reiterate that the Investigator did not find that material to be irrelevant or inadmissible in relation to the Applicant's complaint. In the absence of such a determination that is well founded, it cannot be said that the Investigator directed his mind to whether the employer acted on "inadequate material", "without considering relevant matters" and did not act in a discriminatory manner. In the absence of reasons in the Investigator's report that support a conclusion that the employee did not act on inadequate material, without considering relevant matters and in a non-discriminatory manner, when one or all of such abuses of authority were alleged, I conclude that the recommendation made by him, his decision, cannot stand. He erred in law in concluding that the deployment in question did not constitute an abuse of authority when he failed to demonstrate that he directed his mind to all of the alleged abuses of authority that were in issue before him.

     In the result, this application for judicial review will be allowed, the decision of the Investigator under review will be set aside and the matter will be referred back to the Public Service Commission for rehearing and redetermination by a different designated person.

                 _______________________________

                 Judge

Ottawa, Ontario

February 11 , 1997

__________________

     ¹      R.S.C. 1985, c. P-33 (as amended)

     ²      R.S. C. 1985, c. I-11