(a)
an
Order, pursuant to Rule 75 allowing the Defendants to amend their Statement of
Defence to add the following paragraph:
23. Further
or in the alternative, the Plaintiff’s claim was commenced more than two years
after the Plaintiff knew or ought to have known that he may have a claim
against the Defendants and is therefore barred by the combined operation of the
Crown
Liability and Proceedings Act,
R.S.C. 1985, c. C-50, section 32 and the Limitations Act, R.S.A. 2000, c. L-12
(b)
an
Order, pursuant to Rules 221(1)(a), 221(1)(f), 213(2) and 216(1), to strike the
Statement of Claim and for summary judgment dismissing the claim.
I. Issues
[2]
The
issues raised by this motion are as follows:
1.
Should
this motion be dealt with in writing or by oral hearing?
2.
Should
the Defendants be permitted to amend their Statement of Defence to plead expiry
of the applicable limitation period?
3.
Should
Mr. Kochems’ action be struck or dismissed on the grounds that the action was
commenced beyond the limitation period imposed by statute or otherwise
discloses no reasonable cause of action?
II. Factual Background
[3]
Mr.
Kochems’ claim relates to staffing actions that were carried out by the
Department of Fisheries and Oceans (DFO) in the time period commencing August
2000.
[4]
In
August 2000, a staffing competition was commenced by DFO for District Manager
positions in various locations. As the competition was run as an “open”
competition, any person – regardless of their current employment – was eligible
to apply. In 2001, Mr. Kochems was found to be qualified and he was apparently
placed on an eligibility list, from which eligible candidates could be selected
for a period of one year. Mr. Kochems was not selected and, on November 22,
2001, he was advised that the eligibility list had expired. It appears that he
took no steps to challenge the procedures followed in the open competition.
[5]
In
June 2002, a new competition for the District Manager position was posted on
the internet. This competition was “closed”; that is, it was open only to
persons employed in the public service. As an employee of Parks Canada, Mr.
Kochems was not considered to be a person employed in the public service.
[6]
Mr.
Kochems filed an appeal with the Public Service Commission Appeal Board (PSCAB)
against the selection made in the 2002 closed competition. After an oral
hearing (attended by Mr. Kochems), the PSCAB ruled, in a detailed written
decision dated March 31, 2003, that:
[A]s
an employee of the Parks Canada Agency, Mr. Kochems was not eligible to be a
candidate in these [closed] competitions, since he did not meet the definition
of “employee” in the Public Service Employment Act, and a person had to be an
“employee” under the PSEA in order to be eligible to be a candidate in the
first place.
[7]
Thus,
the PSCAB concluded, Mr. Kochems had no right to appeal to the tribunal; it
followed that the PSCAB “does not have the jurisdiction to decide his appeals
on their merits”.
[8]
Of
note, Mr. Kochems did not take the next step of seeking judicial review of the
PSCAB decision by the Federal Court as he could have pursuant to s. 18 of the Federal
Courts Act, R.S.C. 1985, c. F-7. Rather, as described in his Statement of
Claim, he unsuccessfully and at length pursued his dispute through informal
means with, for example, his Member of Parliament and the President of the
Treasury Board. At every turn, his requested relief (which was, apparently, a
position as District Manager or the equivalent with DFO) was denied.
[9]
As
noted, Mr. Kochems commenced this action in October 11, 2007, pursuant to s. 17
of the Federal Courts Act.
III. Issue #1: Should this motion be
dealt with in writing or by oral hearing?
[10]
The
Defendants brought this motion pursuant to Rule 369 which provides that a party
may, in a notice of motion, request that the motion be decided on the basis of
written representations. Mr. Kochems, in his written submissions in response to
the motion, requested an oral hearing. However, Mr. Kochems provided no reasons
why the motion should not be disposed of in writing, as required under Rule
369(2).
[11]
In
my view, both parties have taken the opportunity to present adequate
submissions in writing on the issues in question. An oral hearing is
unnecessary in the circumstances.
IV. Issue #2: Should the Defendants
be permitted to amend their Statement of Defence to
plead
expiry of the applicable limitation period?
[12]
In
their motion, the Defendants seek to add a pleading that the Plaintiff’s action
is out of time to bring this action. Although the proposed addition adds a new
ground to the defence, the facts supporting this specific ground are already
included in the pleadings. These facts – most of which are contained in Mr.
Kochems’ Statement of Claim – disclose that Mr. Kochems has been aware that the
eligibility list for the open competition expired without an appointment since
2001 and that DFO was excluding him from the closed competition since some time
in 2002. The pleadings also describe the appeal of Mr. Kochems to the PSCAB and
the decision of that tribunal on March 31, 2003. The proposed amendment does
not change or even add to the factual basis of the claim.
[13]
Mr.
Kochems’ reason for objecting to the addition of the limitation defence is
simply that: “It has been well over six months (November 23, 2007) since the Statement
of Defence was registered with the Federal Court”. Mr. Kochems presents no
principled reason for rejecting the request. While timeliness may be a relevant
factor, in this case, it cannot be determinative. Nor does the timing of the
proposed amendment unduly prejudice Mr. Kochems.
[14]
The
proposed amendment is a logical and obvious consequence of the pleaded facts.
In my view, it should be allowed.
V. Issue
#3: Should the pleadings in the Statement of Claim be struck or the action
dismissed?
[15]
The
first question that needs to be addressed is whether this action should be
dismissed because it is, in effect, an indirect attack on staffing decisions
which attacks ought to have been pursued through judicial review. The answer to
this question lies in an understanding of the pleadings of Mr. Kochems.
[16]
As
stated by Justice Décary in Canada v. Roitman, 2006 FCA 266, 2006 D.T.C.
6514, at para. 16:
A
statement of claim is not to be blindly read at its face meaning. The judge has
to look beyond the words used, the facts alleged and the remedy sought and
ensure himself that the statement of claim is not a disguised attempt to reach
before the Federal Court a result otherwise unreachable in that Court. To
paraphrase statements recently made by the Supreme Court of Canada in Vaughan v. Canada, [2005] 1 R.C.S. 146 at paragraph 11,
and applied by this Court in Prentice v. Canada (Royal Canadian Mountain Police), [2005] F.C.J. No. 1954, 2005 FCA 395,
at paragraph 24, leave to appeal denied by the Supreme Court of Canada, [2006]
S.C.C.A. No. 26, May 19, 2006, SCC 31295, a plaintiff is not allowed to frame
his action, with a degree of artificiality, in the tort of negligence to
circumvent the application of a statute.
[17]
A
review of the Statement of Claim demonstrates that Mr. Kochems’ action arises
from staffing actions of DFO. This is apparent from a number of paragraphs of
his amended Statement of Claim. For example, at paragraph 30, Mr. Kochems
states that he “contends that he was denied a career opportunity with the
Department of Fisheries and Oceans”. In paragraph 31, he states that he
believes that actions taken during the process were “not transparent,
respectful nor ethical in keeping with Treasury Board Policy, the Public
Service Commission Staffing Guidelines, and other established public service
protocols”.
[18]
Mr. Kochems
also describes difficulties with the process and conclusion of the PSCAB. In
paragraph 25, he states that he was “denied proper recourse through the Public
Service Commission”. In paragraph 19, he refers to “misleading and inaccurate
obiter statements made during an Appeal Hearing, in which the Appeal Chair of
Public Service Commission stated upfront that they had no jurisdiction to hear
the Plaintiff’s appeal.
[19]
Further
clarification of the true purpose of the Statement of Claim can be seen in the
remedies sought. In addition to punitive damages, Mr. Kochems seeks only
compensation in amounts equal to salary (past and future) and pension
differentials between his current classification and that of a District
Manager.
[20]
Also
instructive are the comments of Mr. Kochems in his response to this motion,
where he states that:
To
this end, the Plaintiff was denied a career opportunity with the Department of
Fisheries and Oceans (DFO), a large government organization. The full potential
of what the Plaintiff could have achieved, as an employee for DFO, will never
be realized. As a consequence, the Plaintiff suffered economic and social loss.
[21]
Thus,
having reviewed the amended Statement of Claim in this action and Mr. Kochems’
response to this motion, I am satisfied that the sole basis of Mr. Kochems’
claim is his dissatisfaction with the appointment process for a position within
the public service. In sum, this action is no more than an indirect challenge
of administrative decisions taken during the two staffing competitions. Mr.
Kochems challenges the legality of the two appointment competitions and nothing
more.
[22]
In
my view, the facts of this case are, in substance, identical to those before
the Court of Appeal in Grenier v. Canada, 2005 FCA 348, [2006] 2 F.C.R. 287. In that case, Mr. Grenier, a prison inmate, attempted to
bring an action in relation to a decision made by the institutional head to
discipline Mr. Grenier. Mr. Grenier did not challenge the decision by way of
judicial review. Some three years after the decision, Mr. Grenier brought an
action in damages, claiming that the decision was unlawful. The Court of Appeal
held that Mr. Grenier could not indirectly challenge the lawfulness of the decision
by way of action for damages; he had to apply directly to have the decision
nullified or invalidated by way of judicial review (Grenier, at para.
35). Mr. Grenier’s action was dismissed.
[23]
The
same conclusion on similar facts was reached by Justice Layden-Stevenson in Graham
v. Her Majesty the Queen, 2007 FC 210. There, as here, the Plaintiff had
failed to pursue alternative remedies.
[24]
In
the case before this Court, as noted above, the entire substance of Mr.
Kochems’ claim stems from actions taken during the open competition and the
closed competition held for staffing positions within DFO. Contrary to the
assertion of Mr. Kochems in his response to this motion, he did not
exhaust all other avenues of recourse. With respect to the open competition,
there were steps he could have taken to object to the process; it appears that
he took no formal action. For the closed competition, he pursued a complaint to
and was heard by the PSCAB; he did not seek judicial review of that decision.
Accordingly, Mr. Kochems’ claim should be dismissed. As noted by Justice
Létourneau in Grenier, above, at para. 33:
It
is especially important not to allow a section 17 proceeding as a mechanism for
reviewing the lawfulness of a federal agency’s decision when this indirect
challenge to the decision is used to obviate the mandatory provisions of
sub-section 18(3) of the Federal Courts Act.
[25]
Since
I am satisfied that the action should be dismissed for these reasons, there is
no need to address the issue of whether the limitation period has been
exceeded.
VI. Conclusion
[26]
The
Statement of Claim of Mr. Kochems will be struck and his action will be
dismissed with costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
Defendants are permitted to amend their pleadings to include paragraph 23 as
set out in these Reasons;
2.
The
Statement of Claim is struck; and,
3.
The
action is dismissed with costs to the Defendants.
“Judith A. Snider”
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