Background
[2]
The
Applicant joined the federal public service in 1997 in a position classified at
the Computer Science Group, level 1 (CS-01). On June 25, 2008, he participated
in an internal appointment process to establish a pool of qualified candidates
to staff positions within the Canada Border Services Agency (CBSA) of Senior
Technical Analyst (08-BSF-IA-HQ-IST-CS-8152) at the CS-02 group and level (2008
Position). The Applicant was a successful candidate and was appointed to the
2008 Position on October 1, 2008.
[3]
By
letter dated January 17, 2012, the PSC informed the Applicant that an
investigation would be conducted to address the possibility that the Applicant
had committed fraud in the internal appointment process which led to his
appointment to the 2008 Position.
[4]
In
an investigation report dated May 16, 2012, the PSC found that the Applicant
had committed fraud pursuant to section 69 of the Act by providing false
information about his level of education in order to meet the educational
criteria of the 2008 Position. The Applicant did not possess a Secondary V,
General, Diploma as indicated on his CV provided in support of his
application. He also admitted that he had not completed high school.
[5]
On
August 1, 2012, the PSC informed the Applicant of the results of the
investigation report and provided him with an opportunity to make submissions
in response to the report and the proposed corrective actions being as follows:
a. That the appointment
of Marc St-Amour in the position of Senior Technical Analyst, group and level
CS-2, made following internal appointment process 08-BSF-IA-HQ-IST-CS-8152, be
revoked;
b. For a period of three
years from the signing of the Record of Decision, Mr. St-Amour must
get the written permission by the Commission before accepting any position or employment
within the Public Service of Canada. In the case where Mr. St-Amour does accept
a term, acting or indeterminate position without prior permission from the
Commission, any such appointment will be revoked;
c. For a period of three
years from the signing of the Decision Record in the event that Mr. St-Amour gets
hired by way of casual employment, temporary help agency or student program
within the Public Service of Canada without prior notification to the Commission,
a letter will be sent to the Deputy Head with information of the fraud
committed by Mr. St-Amour, copies of Investigation Report 2011-BSF-00396.14072 and
of the Decision Record
[6]
On
August 23, 2012, the Applicant’s labour relations officer responded to the
investigation report and the proposed corrective actions asserting that
revoking the 2008 Position was disproportionate and unnecessary. To ensure
that the Applicant “has an accurate understanding of their purpose and ability
to comply,” she requested the details of the proposed corrective actions
including the impact of the revocation on his employment.
[7]
On
September 10, 2012, the investigator responded to the labour relations officer
and stated that, “A revocation implies that all employment within the federal
public service is to be ended including the actual department (CBSA).”
[8]
On
September 21, 2012, the PSC wrote to the Applicant to inform him of its “final
decision” on corrective actions following its investigation and attached its
Record of Decision (2012-158-IB) which accepted the investigation report and
imposed corrective actions which substantively mirrored those noted above (the
letter and the First Record of Decision are hereafter referred to as the First
Decision). The Record of Decision stated that the purpose of the corrective
actions was to “ensure that individuals do not gain employment in the public
service as a result of fraud”. The PSC directed CBSA to complete the
documentation required to implement the revocation and confirm that it had done
so within 60 days of signing the Record of Decision.
[9]
A
briefing note to the PSC dated December 20, 2012 stated that during the
implementation phase of the corrective actions, CBSA indicated that the
Applicant had been deployed to another position (position 66815) in March 2011
(2011 Position). And, because the Applicant “…no longer occupied the position
obtained as a result of appointment process 08-BSF-IA-HQ-IST-CS-8152 (position
28337), the first ordered corrective action could not be implemented”. It
proposed to replace the first corrective action with one whereby the
appointment of the Applicant to the 2008 Position be revoked retroactively to
March 20, 2011, the day preceding his deployment to the 2011 Position. The
stated reason for this being that the purpose of corrective actions is to
ensure that individuals do not gain employment in the public service as a
result of fraud. The Applicant would not have been eligible for deployment had
he not been appointed, as a result of fraud, to the initial CS-02 position
being the 2008 Position.
[10]
On
December 21, 2012, the PSC advised the Applicant of the proposed amended
corrective action and provided him with an opportunity to respond to same in
writing. The Applicant declined to comment. CBSA responded by stating that
the proposed revised corrective action was silent on whether the Applicant
would cease to be an employee of the federal public service when his CS-02 position
was revoked. And, should it be the intention of the PSC to remove the
Applicant from the federal public service, then that intention should be
clearly stated in the new Record of Decision.
[11]
On
January 22, 2013, the PSC wrote to the Applicant informing him of its second
“final decision” and enclosing a copy of Record of Decision 2012-197-IB (the
letter and the second Record of Decision are hereafter referred to as the
Second Decision) which replaced the First Decision. The Second Decision is
described below.
Decision under
Review
[12]
The
Second Decision restated that it accepted the investigation report which
concluded that the Applicant had committed fraud during the 2008 appointment
process by submitting a resume containing false information about his academic
credentials.
[13]
And,
in accordance with its authority to take corrective action under section 69 of
the Act, the PSC ordered that:
i.
The
appointment of Mr. St-Amour to the position of Senior Technical Analyst, at the
CS-2 group and level (position number 30128337), made as a result of
appointment process 08-BSF-IA-HQ-IST-CS-8152, be revoked retroactively to March
20, 2011, the day preceding his deployment to position number 30168815 at CBSA.
CBSA must complete the documentation required to implement the revocation and
confirm to the Public Service Commission that it has done so within 60 days of
the signing of this Record of Decision. Following the revocation of his
appointment, Mr. St-Amour will cease to be an employee of the federal public
service:
ii.
For
a period of three years from the signing of this Record of Decision, Mr.
St-Amour obtain the Commission’s written approval before accepting any position
or work within the federal public service. Should Mr. St-Amour accept a term,
acting or indeterminate appointment within the federal public service without
first obtained such an approval, his appointment will be revoked and:
iii.
For
a period of three years from the signing of this Record of Decision, should Mr.
St-Amour obtain work through casual employment, temporary help agency or
student programs within the federal public service without first notifying the
Commission, a letter will be sent to the Deputy Head advising of the fraud
committed by Mr. St-Amour with a copy of Investigation Report 2011-BSF-00396.14072
and Record of Decision 2012-197-IB.
ISSUES
[14]
In
my view, the issues on this application are as follows:
1.
What
is the applicable standard of review?
2.
Was
the PSC functus officio when it issued the Second Decision?
3.
In
the alternative, does the doctrine of promissory estoppel apply to prevent the
PSC from replacing its First Decision with its Second Decision?
SUBMISSIONS AND
ANALYSIS
Issue 1: What is
the applicable standard of review?
Applicant’s
Submissions
[15]
The
Applicant submits that the appropriate standard of review for the question of
whether a tribunal is functus officio is correctness (Canada
(Attorney General) v Symtron Systems Inc, [1999] FCJ No 178 (CA) at para 45
(QL); Hakimi v Canada (Minister of Citizenship and Immigration), 2002 FCT
481 at para 28; Saskatchewan Wheat Pool v Canada (Canadian Grain Commission),
2004 FC 1307 at paras 19, 20; IMP Group Ltd Aerospace Division (Comox) v
Public Service Alliance of Canada, 2007 FC 517 at paras 23, 25-28 [IMP
Group]; Tinney v Canada (Attorney General), 2010 FC 605 at para 12 [Tinney];
Elsipogtog First Nation Band Council v Peters, 2012 FC 398 at paras
30-35 [Elsipogtog]).
[16]
In
IMP Group, above, the Court found that despite an arbitrator’s labour
relations expertise, it was in no better a position than the Court to address
the issue of functus officio, which is a pure question of law outside of
an arbitrator’s expertise. The Applicant submits that this reasoning also
applies to decisions made by the PSC.
Respondent’s
Submissions
[17]
The
Respondent acknowledges that the issue of whether the functus officio
principle applies has attracted a correctness standard of review. However,
recent jurisprudence suggests that the reasonableness standard applies to an
arbitrator’s decision to apply the doctrine of estoppel (Nor-Man Regional
Health Authority Inc v Manitoba Association of Health Care Professionals,
2011 SCC 59, [2011] 3 S.C.R. 616 [Nor-Man]). And, the question of whether
the “manifest intent” exception applies to a decision has been found to be an
issue of mixed fact and law and reviewable on a reasonableness standard (Nova Scotia Government and General Employees Union v Capital District Health
Authority, 2006 NSCA 85 at para 52 [Capital District]). Given this,
the reasonableness standard should apply in determining whether the First
Decision had its intended effect.
Analysis
[18]
Where
previous jurisprudence has satisfactorily determined the appropriate standard
of review applicable to a particular issue, that standard may be adopted by a
subsequent reviewing court. Only if this inquiry is fruitless, should the
court proceed to analyze the factors in identifying the appropriate standard of
review (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras
57, 62 [Dunsmuir]).
[19]
The
standard of review for the question of whether a decision-maker is functus
officio does not appear to be well settled. Recently, however, Justice
Near in Elsipogtog, above, considered the relevant jurisprudence and,
ultimately, relied on Capital District, above, in concluding that the
reasonableness standard applied when reviewing whether the adjudicator in that
case was functus officio:
[30] The parties disagree on the standard of
review to be applied to the Adjudicator’s determination that he was not functus
officio. The Applicant argues that an assessment of whether the
adjudicator acted outside his jurisdiction or erred in the application of a
legal test requires the correctness standard, while the Respondent contends
that this raises a question of mixed fact and law that should be reviewed based
on reasonableness. The authorities on this issue appear divided.
[31] In Canada Post Corp v Canadian Union of
Postal Workers, [2008] OJ no 2633, 238 OAC 195 at para 13, the Ontario
Superior Court of Justice (Divisional Court) determined that “whether the
arbitrator was functus officio is a pure question of law for which the
standard is correctness.”
[32] Justice Snider of this Court implied in IMP
Group Ltd Aerospace Division (Comox) v Public Service Alliance of Canada,
2007 FC 517, [2007] FCJ no 698 at paras 25-28 that assessing whether an
exception to functus officio applied could be a question of mixed fact
and law. She nonetheless found that in the particular case of a collective
agreement “while acknowledging that there is some factual content to the
decision, my view is that the question is more heavily weighted to a question
of law.” The correctness standard was applied.
[33] By contrast, the Nova Scotia Court of
Appeal in Capital District Health Authority v Nova Scotia Government and
General Employees Union, 2006 NSCA 85, [2006] NSJ no 281 determined that
these questions were at the fact intensive end of the spectrum and deserving of
deference. Writing for the Court, Justice Cromwell, as he then was, concluded
at paragraphs 52-53:
[52] The critical question
in this case was whether the language of the main award gave effect to the
board's manifest intent. Much of the analysis of the four contextual factors
supports giving the board some deference on this issue. The issue is one of
mixed fact and law, central to the board's purpose and close to the core of its
labour relations expertise. However, the resolution of that question defines
the limits of the board's authority to act. This suggests that its resolution
of that issue should not be afforded the highest level of deference. I would
conclude, therefore, that absent some error in legal principle (either express
or extractable from the way it applied the principles) on which the board had
to be correct, its determination of whether the initial award gave effect to
its manifest intent should be reviewed for reasonableness. In other words, the
board's determination of what it manifestly intended must be reasonably
supportable by the text of its original award, read as a whole and in context.
[53] The reasonableness
standard of review seems to me to strike an appropriate balance between the
goals of finality and effectiveness in the context of interest arbitration.
Affording the board a measure of deference in relation to determining its own
manifest intent will help ensure that the board is able to finish the job
assigned to it. Insisting that its conclusion in this regard be reasonable,
however, ensures that due weight will be given to the goal of finality.
[34] Having reviewed these determinations, I am
of the opinion that the reasonableness standard should be applied based on the
reasoning provided in Capital District, above. I cannot resolve the
question of whether the Adjudicator was functus officio without
considering the nature of his initial Award. In this respect, the Adjudicator
is deserving of at least some deference. Although I acknowledge that the issue
relates to the Adjudicator’s authority to act, this does not preclude me from
applying the reasonableness standard, given the factual content involved.
[20]
While
recognizing the divergence of jurisprudence with respect to the question of the
appropriate standard of review with respect to issues of functus officio,
in my view the reasonableness standard as accepted in Capital District
and Elsipogtog, both above, applies in this case. The critical issue
here involves determining whether the manifest intention exemption to the
doctrine of functus officio applies. As stated in IMP Group,
above, this is a question of mixed fact and law because the general principles
of functus officio must be applied to the particular facts of the case.
Although the Court in that case ultimately found that the correctness standard
applied, it stated that this was because it was considering a completed
collective agreement and, while there was some factual content to the decision,
it more heavily leaned towards a question of law. That is not the situation before
me.
[21]
And,
as stated in Capital District:
[46] To determine whether it could issue a
supplemental award as it did, the board had to do two things. First, it had
to understand the broad legal principles of functus officio. Second, it
had to interpret its initial award to determine its manifest intent. In other
words, the board had to decide whether the effect of its supplemental award was
to give effect to that manifest intent.
[47] This question, in my view, is one of mixed
law and fact. While the interpretation of a contract or a statute is a
question of law, it seems highly artificial to so characterize a tribunal’s
assessment of its own manifest intent. A correct statement of the legal
principle, on its own, would not resolve the parties’ dispute. Their dispute
was “... about whether the facts satisfy the legal tests ...” relating to functus
officio and involved “... applying the law to the facts... .”: Its
resolution depends on the particular intent which this board had in these
circumstances. This precise issue is unlikely to arise again and the result will
be of virtually no precedential value. It is almost entirely a matter of “pure
application”: Director of Investigation and Research v. Southam Inc., [1997]
1 S.C.R. 748 at paras. 35 and 44. These are the hallmarks of a mixed question
of law and fact.
[emphasis in original]
[22]
Subsequently,
in Nor-Man, above, the Supreme Court of Canada restated that an
administrative tribunal’s decision will be reviewable on the correctness
standard if it raises a constitutional issue; a question of general law that is
both of central importance to the legal system as a whole and outside the
adjudicator’s specialized area of expertise; a true question of jurisdiction or
vires; or, involves the drawing of jurisdictional lines between two or more
specialized tribunals. The standard of reasonableness will prevail where the
decision raises issues of fact, discretion or policy; involves inextricably
intertwined legal and factual issues; or, relates to the interpretation of the
tribunal’s home statute or closely related statutes. There, the Court held
that an arbitral decision that imposed the equitable remedy of estoppel
attracted the reasonableness standard as it did not fall within the categories
of questions that demanded a correctness standard and, further, that a contextual
analysis also confirmed that the standard was reasonableness.
[23]
In my view, the issue of whether the PSC was functus
officio in this matter similarly does not fall within a category of
question to which the correctness standard applies and is more closely aligned
with Capital District, above. And, on a contextual analysis, (Dunsmuir,
above, at para 64) even in the absence of a privative clause concerning the
particular provision under which the decision was made, considering the purpose
of the PSC, the nature of the question at issue and the expertise of the PSC,
the reasonableness standard would seem to be most appropriate.
[24]
In my view, for much the same reasons,
reasonableness is also appropriate in reviewing the second issue being whether
the doctrine of promissory estoppel applies to prevent the PSC from replacing
its First Decision with its Second Decision (Nor-Man, above, at para 35).
Issue 2: Was the
PSC functus officio when it issued its Second Decision?
Applicant’s
Submissions
[25]
The
Applicant submits that a tribunal cannot reconsider or vary its decision once
it has been finalized (Brown,
Donald J M, and John M Evans, Judicial Review of
Administrative Action in Canada, Vol 3 (Toronto: Canvasback
Publishing, 2012) (loose‑leaf); Chandler v Alberta
Association of Architects, [1989] 2 S.C.R. 848 at para 20 [Chandler]).
The doctrine of functus officio is based “on the policy ground which favours
finality of proceedings”. There are five exceptions to the doctrine, including
where there has been an error in expressing the “manifest intention” of the
tribunal. However, if a tribunal selects one remedy that is open to it, this
does not entitle it to reopen proceedings to make another selection (Chandler , above).
[26]
The
Applicant submits that hearing further submissions from the parties and issuing
a decision on issues previously addressed does not fall under the “manifest
intention” exception and, instead, is an improper attempt to augment the
reasons of the decision-maker (IMP Group, above). The critical test is
whether the administrative decision-maker “could be said to have finally
determined the complaint before him” (Murphy v Canada (Adjudicator, Labour
Code), [1993] FCJ No 1236 (CA) at para 16 (QL); Paley v Fishing Lake
First Nation, 2005 FC 1448 at para 27; Imperial Oil Resources Ltd v
Canada (Minister of Indian Affairs and Northern Development), 2003 FCT 478
at paras 25, 26; Elsipogtog, above at para 47).
[27]
Previous
decisions have held that a decision-maker, having made its decision, cannot in
a subsequent decision re-examine or vary its order (Huneault v Central
Mortgage Housing Corp, [1981] FCJ No 905 (CA) at para 7 (QL); Cargill Ltée
v Syndicat national des employés de Cargill Ltée, 2002 FCA 269 [Cargill
Ltée]). This is the case even if a decision is made in error (Narvaez v
Canada (Minister of Citizenship and Immigration), 2009 FC 514 at para 37
[Narvaez]). The fact that new evidence may be submitted subsequent to a
final decision is not a basis upon which a final decision can be re-opened (Tambwe-Lubemba
v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 1874 (CA)
at paras 3- 4 (QL)).
[28]
The
Applicant submits that he advised the PSC about his 2011 deployment during the
investigation and that it was specifically referenced in the investigation
report. Yet the First Decision revoked the 2008 Position without retroactive
effect, it did not address the 2011 deployment nor that the Applicant would
cease to be employed in the federal public service as a result of the stated
corrective actions. The PSC subsequently issued the Second Decision, intended
to supersede the First Decision, to achieve corrective actions that would
reverse the deployment and end the Applicant’s employment. Both of the
decisions were stated to be final.
[29]
However,
the PSC was functus officio and had no authority to issue the Second
Decision because: the PSC referred to the First Decision as a final decision
thereby disposing of all of the issues raised in the investigation made
pursuant to section 69 of the Act; the PSC cannot revisit a final decision
because it changed its mind or made an error of jurisdiction; the First
Decision expressed the manifest intention of the PSC at the time the decision
was issued and did not include any slips or clerical errors; the Act does not
indicate that a decision made under section 69 can be reopened; and, the PSC is
not entitled to reopen a final decision in order to specify additional or
alternative corrective action.
Respondent’s
Submissions
[30]
The
Respondent submits that the application of the principle of functus officio
must be applied to administrative bodies with greater flexibility than to the
courts. There is flexibility to reopen such decisions if there has been an
error in expressing the “manifest intention” of the administrative body (Chandler , above). In Capital District, above, the Nova Scotia Court of
Appeal found that a supplementary award did not violate the functus officio
principle. Similarly, in Canadian National Railway Co v Canada (National
Transportation Agency) (1989), 96 NR 378, [1989] FCJ No 50 (CA) (QL) [Canadian
National Railway Co], the Federal Court of Appeal found that an original
decision of the agency was capable of two different interpretations and that it
possessed jurisdiction to issue a second decision which clarified the matter.
[31]
The
Respondent submits that the First Decision did not express the PSC’s manifest
intent which was clarified by the Second Decision. It was the PSC’s intention
to eliminate, on the basis of his appointment to the 2008 Position obtained by
fraud, any employment obtained by the Applicant. However, the First Decision
was not clearly worded so as to express this intent and to implement the
revocation to ensure that employment stemming from the 2008 Position ended,
including the 2011 Position. The PSC did not change its mind nor did it
augment its reasons or order an alternative remedy.
[32]
The
Respondent states that the language used in the First Decision, that the “purpose
of the corrective action is to ensure that individuals do not gain employment
in the public service as a result of fraud”, indicates that the PSC intended to
eliminate any gain the Applicant may have obtained on the basis of his fraudulent
appointment to the 2008 Position. This included, as the investigator explained
to the labour relations officer, ending all “employment within the federal
public service…including with the actual department (CBSA).” The PSC’s intent
was also reflected in the briefing note. However, as issued, the PSC’s First
Decision was not capable of implementing the revocation in a manner that would
fulfill its manifest intent.
[33]
The
PSC’s objective to ensure that the Applicant did not gain employment in the
public service as a result of fraud is consistent with the case law recognizing
the need to preserve the integrity of the appointment system. In Challal v Canada (Attorney General), 2009 FC 1251 [Challal], the judicial review of an
applicant who committed fraud in an appointment process and was transferred to
another department was dismissed.
[34]
The
Respondent submits that the clarification of the PSC’s original intentions was
conducted fairly as the PSC gave the Applicant an opportunity to make
submissions on the proposed revised corrective actions. The Applicant chose
not to provide submissions even though in his affidavit filed in support of his
application for judicial review he states that when he received the letter advising
him of the proposed revision he was of the view that the PSC lacked
jurisdiction and was acting unfairly. The Respondent submits that having
failed to raise his concerns at the first opportunity, the Applicant should be
prevented from advancing the issue in this application for judicial review.
Analysis
[35]
As
a preliminary point I will address the Respondent’s submission that, because
the Applicant chose not to raise the issue of functus officio when he
was notified of the proposed amended corrective actions, that he should not now
be permitted to impugn the Second Decision on that basis. In my view, and as set
out below, the issue of functus officio in this matter primarily concerns
whether the PSC’s manifest intent was expressed in the First Decision. Accordingly,
the PSC’s inability to address this issue in the Second Decision because the
Applicant did not raise it is not fatal. And, in any event, the issue was
squarely raised in the application for judicial review and was fully addresses
by both parties. It is, therefore, appropriate and within the Court’s
discretion to consider the issue.
[36]
As
a general rule functus officio ensures finality in the decision-making
process. Brown & Evans, above, describe the doctrine at 12:6200 as
follows:
The doctrine of functus officio provides that
once an adjudicator has done everything necessary to perfect the decision, they
are barred from revisiting them other than to correct clerical errors or other
minor technical errors.
[…]
[37]
Administrative
adjudicators and other decision-makers to whom the duty of fairness applies
have no inherent jurisdiction to rehear, reconsider or vary a decision once it
has been finalized. Rather, having rendered a final decision, they are functus
officio. Thus, subject to the exceptions to the general rule, or perhaps
where the parties agree otherwise, any authority to rehear, reconsider or vary
a decision must be found in statute.
[38]
The
leading authority on the doctrine of functus officio continues to be the
decision of the Supreme Court of Canada in Chandler, above. There, the
Court stated the following:
[20] …As a general rule, once such a tribunal
has reached a final decision in respect to the matter that is before it in
accordance with its enabling statute, that decision cannot be revisited because
the tribunal has changed its mind, made an error within jurisdiction or because
there has been a change of circumstances. It can only do so if authorized by
statute or if there has been a slip or error within the exceptions enunciated
in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra.
[21] To this extent, the principle of functus
officio applies. It is based, however, on the policy ground which favours
finality of proceedings rather than the rule which was developed with respect
to formal judgments of a court whose decision was subject to a full appeal.
For this reason I am of the opinion that its application must be more flexible
and less formalistic in respect to the decisions of administrative tribunals
which are subject to appeal only on a point of law. Justice may require the
reopening of administrative proceedings in order to provide relief which would
otherwise be available on appeal.
[39]
The
Court further stated:
[23] Furthermore, if the tribunal has failed to
dispose of an issue which is fairly raised by the proceedings and of which the
tribunal is empowered by its enabling statute to dispose, it ought to be
allowed to complete its statutory task. If, however, the administrative entity
is empowered to dispose of a matter by one or more specified remedies or by
alternative remedies, the fact that one is selected does not entitle it to
reopen proceedings to make another or further selection. Nor will reserving
the right to do so preserve the continuing jurisdiction of the tribunal unless
a power to make provisional or interim orders has been conferred on it by statute.
See Huneault v. Central Mortgage and Housing Corp. (1981), 41 N.R. 214
(F.C.A.)
[40]
The
Federal Court of Appeal stated the following in Cargill Ltée, above,
based on Justice Sopinka’s (as he then was) comments in Chandler, above:
[12] It
is worth noting in Sopinka J.'s remarks that:
1. when the
administrative tribunal has reached a "final" decision on a matter,
it cannot revisit the matter inter alia because it has changed its mind or made
an error;
2. the application of the
functus officio rule should be flexible when the enabling legislation
allows the tribunal to re-open the matter so it can fully exercise its
jurisdiction
3. if the tribunal has
failed to dispose of a matter which was before it and which it was empowered to
dispose of, it ought to be allowed to complete its statutory task;
4. if the tribunal had to
select how it would dispose of the matter before it and chose a specific way of
doing so, it cannot then reconsider the matter so as to arrive at another
solution.
[41]
In
Chandler, above, the Court set out several exceptions to functus
officio, only one of which has been advanced as being applicable in the
present case being, “Where there has been error in expressing the manifest
intention of the court” (Paper Machinery Ltd v J O Ross Engineering
Corp, [1934] S.C.R. 186; Narvaez,
above at para 26).
[42]
In
this case, the PSC’s investigation was conducted pursuant to section 69 of the
Act, which reads as follows:
|
Fraud
69.
If it has reason to believe that fraud may have occurred in an appointment
process, the Commission may investigate the appointment process and, if it is
satisfied that fraud has occurred, the Commission may
(a)
revoke the appointment or not make the appointment, as the case may be; and
(b)
take any corrective action that it considers appropriate.
|
Fraude
69.
La Commission peut mener une enquête si elle a des motifs de croire qu’il
pourrait y avoir eu fraude dans le processus de nomination; si elle est
convaincue de l’existence de la fraude, elle peut :
a)
révoquer la nomination ou ne pas faire la nomination, selon le cas;
b)
prendre les mesures correctives qu’elle estime indiquées.
|
[43]
There
is nothing contained in the Act which authorizes the PSC to alter corrective
actions once decided. The questions for this Court to decide are, therefore,
whether PSC’s First Decision was a final decision, and, whether that decision
erred in expressing the PSC’s manifest intention and may be revisited on the
basis of that exception to the doctrine of functus officio.
[44]
Brown
& Evans, above, at 12:6222 describes finality in adjudication as defined in
G. Spencer Bower & AK Turner, The Doctrine of Res Judicata,
2d ed (London: Butterworths, 1969) at 132 as follows:
A judicial decision is deemed final, when it leaves
nothing to be judicially determined or ascertained thereafter, in order to
render it effective and capable of execution, and is absolute, complete and
certain, and when it is not lawfully subject to subsequent rescission, review
or modification by the tribunal which pronounced it.
[45]
In
this case, the PSC’s letter dated September 21, 2012, which attached the first
Record of Decision, states that, “The purpose of this letter is to inform you
of the Commission’s final decision…” The letter also advised the Applicant
that if he wished to contest the decision that his right of recourse was to
commence an application for judicial review in this Court. It also
contemplated the implementation of the First Decision stating that, “The department’s
officials and the PSC will be in contact shortly concerning the implementation
of the corrective actions.” The attached first Record of Decision set out its
purpose and the corrective actions as described above including revoking the Applicant’s
appointment to the position of CS-02 as a result of the 2008 appointment
process.
[46]
Given
this, I am satisfied that the First Decision was final. Therefore, it could
only be revisited by the PSC if it fell within the “manifest intention”
exception enunciated in Chandler, above.
[47]
Courts
have applied the manifest intention exception in various factual circumstances
as illustrated by the following decisions.
[48]
In
Capital District, above, an arbitration board was to determine certain
issues including the subject employees’ rate of pay for the next three years. It
issued an award but the parties could not agree on how to implement that part of
the award dealing with the “catch-up” component of the wage increase. The
board issued a supplemental award to resolve the difficulty. The union
objected asserting that the board had no further authority to address the catch
up issue as it had finally decided the matter in its first decision and was functus
officio.
[49]
The
Nova Scotia Court of Appeal aptly described the goals of finality and
effectiveness in decisions:
[1] This appeal illustrates the tension
between two important goals of adjudication: finality and effectiveness. The
goal of finality is served by the rule that once a tribunal has finally decided
a matter, it has no further power to act. This rule is often identified by its
Latin name, functus officio. Finality, however, is not an absolute
value, and so the functus officio rule is mitigated in certain
circumstances in order to serve the goal of effectiveness. For example, a
tribunal may amend its decision where it has made an error in expressing its
“manifest intent.” The appeal turns on how the competing goals of finality and
effectiveness play out in the particular circumstances of this case.
[50]
The
Nova Scotia Court of Appeal stated that the best indication of the tribunal’s
manifest intent will generally be found in the reasons for its initial
decision. Unless some disharmony or contradiction is apparent between the
allegedly erroneous choice of words and that intent, the language chosen by the
tribunal in its initial decision should stand. The Court found that the
arbitration board reasonably concluded that the language in the main award by
which it described eligibility for catch-up increases did not give effect to
the manifest intent of that award:
[59] I turn first to the board’s conclusion as
to its “manifest intent”. In its supplemental award, the board summarized its
purpose in adding the catch-up component to the wage rates: “[t]he clear and
overriding purpose of the award was to ensure that employees of this employer
were paid the highest rate in Atlantic Canada.” This is a reasonable
conclusion as to the “clear and overriding” purpose of its main award. It is
supported by express and clear language in the main award; this conclusion in
the supplemental award simply reiterates what was said in the main award to be
the “operating principle” which “guided” the board.
[60] I turn next to the question of whether the
disputed language of the main award failed to give effect to this intent. As
it had stated in its main award, the board repeated in its supplemental award
that its “... objective was not to create any windfalls ... ”. It concluded,
however, that windfalls would result if catch-up adjustments were made once the
top rate was achieved. In other words, the board said that ignoring the ATB
component in determining whether the pay was at the top in Atlantic Canada was
inconsistent with its intent not to award windfalls for any classification.
This, too, seems to me to be a reasonable conclusion. Giving a catch-up
payment to a group of employees who are already at the top of the pay rates in
the region could reasonably be viewed as a “windfall”, and therefore
inconsistent with the board’s clearly expressed intended objective.
[51]
Similarly,
in Canadian National Railway Co, above, the Federal Court of
Appeal found that the agency had jurisdiction to detail more precisely the
types of documents it had ordered disclosed in its initial decision on the
point (Chen v Canada (Minister of Citizenship and Immigration), 2012 FC
1218 at para 11). In Nozem v Canada (Minister of Citizenship and
Immigration), 2003 FC 1449, the applicant was mistakenly given a notice of a
decision regarding his refugee claim which indicated that his application for
protection had been accepted. The applicant later received a full decision
denying his refugee claim. The Court concluded that the Board was not functus
officio when issuing the second decision because the first notice of
decision was issued by administrative error.
[52]
Similarly,
in Tinney, above, Justice Zinn found that the Canadian Human Rights
Commission had merely sent a notification in error to a claimant indicating
that his complaint would be referred to the Canadian Human Rights Tribunal,
when in fact the Commission had reached a negative decision in his file, and
that it was open to the Commission to correct that error.
[53]
Conversely,
in Cargill Ltée, above, the Federal Court of Appeal found that the
Canadian Industrial Relations Board could not re-examine an order issued under
labour legislation. Part of the Court’s decision was based on whether there
were “indications in the enabling statute that the decision can be reopened in
order to enable the tribunal to discharge the function committed to it by enabling
legislation.” The Court found that the effect of the new order was to create
new rights. It relied on Commission scolaire Harricana v. Syndicat des
travailleuses et travailleurs de l'enseignement du nord-est québécois,
[1988] RJQ 947 (CA) which found that if the purpose of an arbitral award is to
define or clarify an arbitral award made previously, it cannot create broader
rights than those resulting from the first award. In my view, this case can be
distinguished as, for the reasons set out below, the Second Decision did not
create new rights but served only to clarify the First Decision.
[54]
The
First Decision contained the corrective actions described above. In my view,
it is clear that these were intended to revoke the Applicant’s employment
arising from the 2008 appointment process because the appointment was the
result of his fraudulent application. In this regard, the First Decision
states that, “The purpose of the corrective actions is to ensure that
individuals do not gain employment in the public service as a result of
fraud” (emphasis added). It makes reference to the PSC’s authority to take
corrective action under section 69 of the Act which includes the revocation of an
appointment and the taking of any corrective action that it considers appropriate.
The First Decision also specifically states that the Applicant’s appointment to
the position of “Senior Technical Analyst” made as a result of the 2008
appointment process was revoked.
[55]
Although
not a part of the First Decision, PSC’s intent was also relayed to the
Applicant in its Investigator’s letter of August 23, 2012 sent to the
Applicant’s Labour Relations Officer which sought to clarify the first proposed
corrective action. One of the questions asked was the following:
What is the impact of a revocation of Mr. St-Amour’s
CS-2 on his employment? Is it the intention of the Commission that Mr. St-Amour
work for the Public Service at a CS-1 level?
[56]
The
investigator responded that:
A revocation implies that all employment within the
federal public service is to be ended including with the actual department
(CBSA).
[57]
Regardless,
the PSC subsequently took the view that the first of the corrective actions,
being the revocation of the Applicant’s appointment to the position of CS-02 as
a result of the 2008 appointment process, could not be implemented because the
Applicant had been deployed to another position in March 2011. The PSC
briefing note dated December 20, 2012 which proposed the revised corrective
actions states that, “Deployments should not be used to avoid the application
of corrective actions,” and that the Applicant would have been ineligible for
deployment to the 2011 Position had he not been appointed to the 2008 Position
as a result of fraud.
[58]
While
the briefing note states that it was during the implementation phase of the
corrective action that CBSA indicated that the Applicant had been deployed to
the 2011 Position, in fact, the investigation report refers to the deployment
offer and that it was accepted by the Applicant on October 6, 2011. Thus, the
deployment was known to PSC when it issued the First Decision. However, in my
view, this is only significant as regards to the PSC’s subsequent
interpretation of the CBSA’s ability to implement the PSC’s manifest intent and
not to the intention itself, being the revocation of any position held by the
Applicant as a result of fraud in the 2008 appointment process.
[59]
The
Second Decision revises the wording of the revocation provision of the First
Decision. It states that the Applicant’s appointment will be revoked
retroactively to March 20, 2011, the day preceding his deployment, and, that
following the revocation the Applicant would cease to be an employee of the
federal government.
[60]
In
my view, the Second Decision served only to clarify the First Decision which
had not clearly stated the PSC’s manifest intent. Specifically, that because
the Applicant’s CS-02 Position was obtained as a result of the fraud in the
2008 appointment process, it was revoked. This also, and necessarily, included
the 2011 Position as the deployment to it was only possible because of the 2008
appointment. The Second Decision also clarified its intent that, because his
position was revoked, that the Applicant would no longer be an employee of the
federal public service. The PSC did not change its mind, reconsider or vary
its original decision. Nor did it reopen the proceeding to make another or
further selection of corrective actions.
[61]
Therefore,
as the First Decision did not clearly reflect its manifest intent, the PSC was
not functus officio in rendering the Second Decision which falls within
that exemption as set out in Chandler, above.
[62]
For
this reason, it is not necessary to address the Respondent’s alternative
submission that the First Decision, which was based on fraud, revoked the
Applicant’s appointment to the 2008 Position rendering that appointment, and
the subsequent deployment to the 2011 Position, null ab initio.
Issue
3: In the alternative, does the doctrine of promissory estoppel apply to
prevent the PSC from replacing its First Decision with its Second Decision?
Applicant’s
Submissions
[63]
The
Applicant refers to Maracle v Travellers Indemnity Co of Canada, [1991] 2
SCR 50 at para 13 in which the Supreme Court of Canada stated that the party
relying on the doctrine of promissory estoppel must establish that the other
party has, by words or conduct, made a promise or assurance which was intended
to affect their legal relationship and to be acted upon. Further, that the
party relying on the doctrine must also establish that they acted on it or in
some way changed their position. The Applicant submits that the Courts have applied
the doctrine of promissory estoppel to prevent the Crown from insisting on its
strict legal rights (Mentuck v Canada, [1986] 3 FC 249 at paras 12-20,
35; Karia v Canada (Minister of National Revenue), 2005 FC 639 at paras
9, 10).
[64]
The
Applicant submits that in the administrative law context, where an employer has
overpaid an employee and that employee has relied on the overpayment by
incurring special financial commitments, the employer will be estopped from
recovering the overpayment (Ottawa Board of Education v Federal of Women’s
Teachers’ Association, [1986] OLAA No 58 (P. Picher) at paras 69-84 (QL); HM
Trimble & Sons (1983) Ltd v International Union of Operating Engineers,
Local 115 (Overpayment Grievance), [2009] BCCAAA No 116 at para 60 (QL); York
University v CUPE, Local 3903 (Malik), [2004] OLAA No 112 (Devlin) at paras
16-25 (QL)). Further, an overpayment cannot be recovered where there is
evidence of any special projects being undertaken or special financial
commitments made because of the receipt of those payments (Mobil Oil Canada,
Ltd v Storthoaks (Rural Municipality), [1976] 2 S.C.R. 147).
[65]
The
Applicant submits that in the present case, he made a number of significant
financial commitments and in one case a life-altering decision in reliance on
the First Decision which did not result in the loss of his employment. The
Applicant and his wife took legal custody of their granddaughter, renewed their
mortgage for five years, and, sold their truck to purchase a new vehicle which
they would not have done if the First Decision had required the loss of his
employment. Therefore, it would be manifestly unfair to allow the PSC to
rescind its First Decision and it is estopped from now issuing the Second
Decision.
Respondent’s
Submissions
[66]
The
Respondent objects to promissory estoppel now being raised as it submits that
it was not contained in the Applicant’s notice of application. Rule 301(e) of
the Federal Court Rules, SOR/98-106 (Rules), requires that the notice of
application contain “a complete and concise statement of the grounds intended
to be argued…”
[67]
The
Respondent also sets out the principles of promissory estoppel cited in Mount
Sinai Hospital Center v Quebec (Minister of Health and Social Services),
2001 SCC 41, [2001] 2 S.C.R. 281 at paras 45-48 and submits that the Applicant has
failed to show that the PSC made an unambiguous promise that he would retain
his position. Further, that the Applicant cannot suggest that he was unaware
of the impact of the First Decision on his employment. His labour relations
officer was clearly informed that the revocation, as ordered in the First
Decision, was intended to end all employment within the federal public service.
Analysis
[68]
Rule
301(e) of the Rules states that a notice of application shall set out “a
complete and concise statement of the grounds intended to be argued, including
a reference to any statutory provision or rule to be relied on.” An applicant
may not raise an argument not set out in its notice of application. In Arora
v Canada (Minister of Citizenship and Immigration), [2001] FCJ No 24 at
para 9 (QL), this Court set out the justification for the rule as follows:
[9] ….If, as here, the applicant were able to
invoke new grounds of review in his memorandum of argument, the respondent
would conceivably be prejudice[sic] through failure to have an opportunity to
address the new ground in her affidavit or, once again as here, to at least
consider filing an affidavit to address the new issue….
[69]
Here,
the Applicant should have properly filed a motion to amend its notice, “which
would have
allowed for a timely debate as to the relevance of such an amendment and, if
necessary, the measures required to prevent either party from suffering
prejudice”
(Republic of Cyprus (Commerce and Industry) v International Cheese Council
of Canada, 2011 FCA 201 at para 15). However, this Court has previously permitted
the hearing of an issue not raised in a notice of application (Cameron v Canada (Indian Affairs and Northern Development), 2012 FC 579 at para 101; Do Nascimento v Canada (Minister of Citizenship and Immigration), 2012 FC 1424 at para 8) and here
there is no suggestion of prejudice to the Respondent.
[70]
In
any event, the First Decision stated that the Applicant’s 2008 Position
was to be revoked. Any doubt that the Applicant may have had about the impact
of the revocation on his employment, including the 2011 Position, should have
been resolved by the reply received from the investigator to the labour
relations officer’s request for clarification. The elements of promissory
estoppel have not been established as there was no promise or assurance of
continued employment and the Applicant could not have reasonably interpreted the
First Decision as such, particularly in light of the letter from the
investigator. The case law referred to by the Applicant is not supportive of
its submissions on this issue.
[71]
This
application for judicial review is therefore dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
This
application for judicial review is dismissed; and
2.
The
Respondent shall have its costs.
“Cecily Y. Strickland”
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