Docket: A-70-16
Citation: 2016 FCA 290
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CORAM:
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GAUTHIER J.A.
TRUDEL J.A.
SCOTT J.A.
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BETWEEN:
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DAVID LESSARD-GAUVIN
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Appellant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT OF
THE COURT
(Delivered from the bench at Québec,
Quebec, on November 17, 2016.)
TRUDEL J.A.
[1]
Rule 302 of the Federal Courts
Rules SOR/98-106 provides that unless the Court orders otherwise, an
application for judicial review shall be limited “to a
single order in respect of which relief is sought.”
[2]
In this case, the appellant brought a motion,
before the Federal Court, for an order granting him leave to contest, by way of
judicial review, two decisions concerning him. The first decision, dated
September 30, 2015, was made by Employment and Social Development Canada, which
removed his application from an external appointment process within the federal
public service.
[3]
The second decision, dated December 15, 2015, by
the Public Service Commission of Canada (the Commission), pertains of the
appellant’s complaint regarding the external appointment process and a senior
official’s alleged interference in this process in order to exclude him. The
Commission found that it was not necessary to conduct an investigation. The
Commission concluded that this senior official had information on the appellant’s
past performance and that the selection committee could not be unaware of this
information. It was somewhat similar to a reference check. This step was not
taken to exclude the appellant’s application. According to the Commission, the
information received from the appellant did not raise any issues relating to
the application of the PSEA.
[4]
Exercising his discretion, Justice LeBlanc of
the Federal Court (the Judge) did not grant the appellant’s motion. After a
brief discussion on Rule 302, the Judge correctly stated that the
Commission’s decision resulted from the exercise of the investigative power
granted under section 66 of the Public Service Employment Act, S.C.
2003, c. 22 (the PSEA).
[5]
Following this statement, the Judge said he was
of the view that the appellant’s motion raised points pertaining to the theory
of exhaustion of remedies. Citing the well settled doctrine of the Federal
Court, the Judge held that once the administrative process had been exhausted,
as is the case here, it was the final determination that was reviewable in
Court, that of the Commission dismissing the complaint, and not the decision
removing the appellant’s application.
[6]
Consequently, the Judge dismissed the appellant’s
motion and extended the deadline for filing an application for judicial review
of the Commission’s decision (Judge’s order and reasons, 2016 FC 227).
[7]
On appeal, the appellant raised numerous grounds
for reviewing the Federal Court’s order. However, at the end of the day, we are
of the opinion that the main issue before us is whether the Judge, in
exercising his discretion, made a palpable and overriding error warranting the
intervention of our Court (Hospira Healthcare Corporation v. Kennedy
Institute of Rheumatology, 2016 FCA 215, at paragraph 79, citing Housen
v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235).
[8]
We find no such error.
[9]
To rule for the appellant, we would have to
accept his theory that the Federal Court erred in not recognizing that: (a)
section 66 of the PSEA is not an “adequate
alternative remedy,” which then involves the principle of exhaustion of
remedies and; (b) that the Canadian Charter of Rights and Freedoms and
various international instruments give litigants “the
right to a judge,” that is, [TRANSLATION] “a fundamental legal right for every person to a full and
equal, fair and public hearing of his civil or penal case by a competent,
independent and impartial tribunal established by law” (memorandum of
fact and law of the appellant, at paragraph 59). At the hearing, the
appellant added that that fundamental legal right had to be exercisable within
an appropriate timeframe, which in this case would allow him to be heard and,
if appropriate, be part of the pool of candidates approved for the position
sought. We note that that argument on the appropriate timeframe for access to
justice was not argued before the Judge. In addition, the appellant has not yet
filed the application for judicial review authorized by the Judge.
[10]
The PSEA provides that the mandate of the
Commission includes conducting investigations and audits into appointments to
public service (section 11). In terms of external appointments,
section 66 stipulates:
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External appointments
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Nominations externes
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66. The Commission may investigate any
external appointment process and, if it is satisfied that the appointment was
not made or proposed to be made on the basis of merit, or that there was an
error, an omission or improper conduct that affected the selection of the
person appointed or proposed for appointment, the Commission may
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66. La
Commission peut mener une enquête sur tout processus de nomination externe;
si elle est convaincue que la nomination ou la proposition de nomination n’a
pas été fondée sur le mérite ou qu’une erreur, une omission ou une conduite
irrégulière a influé sur le choix de la personne nommée ou dont la nomination
est proposée, la Commission peut :
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(a) revoke the appointment or
not make the appointment, as the case may be; and
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a)
révoquer la nomination ou ne pas faire la nomination, selon le cas;
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(b) take any corrective action
that it considers appropriate.
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b)
prendre les mesures correctives qu’elle estime indiquées.
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[11]
We agree with the Judge that: “the powers vested in the PSC under section 66 of the [PSEA]
present the characteristics of adequate remedy for any person who contends that
an appointment or proposed appointment resulting from any external appointment
process was not based on merit or that there has been an error, omission or
improper conduct which affected the selection of the person appointed or
proposed for appointment.”
[12]
It is a convenient remedy involving the
Commission’s expertise in matters of employment within the public service. It
is a quick, economical remedy that enables a complainant to obtain relief, if
appropriate. In this case, we note, as did the respondent in his factum, that
the remedies sought by the appellant are within the Commission’s power.
[13]
The Commission’s decision letter clearly shows that
it considered the grounds of the appellant’s complaint before deciding that
they did not warrant conducting an investigation. It is a final decision on the
merits of the complaint and not on its admissibility, as the appellant
contends. It is true that the Commission did not respond to all of the
appellant’s grievances, but solely because the grounds of complaint were not
within its jurisdiction. The Commission reviewed the appellant’s complaint in the
light of the applicable guidelines, referring the appellant to the Office of
the Privacy Commissioner of Canada and the Office of the Public Sector
Integrity Commissioner of Canada regarding his allegations of disclosure of personal
information and discrimination.
[14]
That decision is the result of the
administrative process to which the appellant was entitled under the PSEA. We
agree with the Judge that “once the administrative
process has been exhausted, it is the final determination that is reviewable”
before the Federal Court (Judge’s reasons, at paragraph 10).
[15]
However, that does not mean that the reviewing
court will not review the first decision removing the appellant’s application.
It is difficult to imagine that a review of the reasonableness of the
Commission’s findings of fact or mixed law and fact (in this case, that the
senior official’s notes are comparable to a reference check) could have been
conducted without considering the first decision and the manner in which it was
made. Especially since in this case, the appellant stated that he had already
demonstrated, in another matter, misrepresentations made to the Commission by a
departmental analyst.
[16]
That being said, it does not follow that the
Judge erred in not allowing the appellant to seek judicial review of both this
first decision and the second in the same application for judicial review, as
he attempted to do.
[17]
We now turn briefly to the appellant’s arguments
regarding the Charter and the various international instruments to which he
refers in paragraph 42 of his memorandum of fact and law.
[18]
The Judge discusses that question in
paragraph 23 of his reasons:
[23] Lastly, the applicant did not
demonstrate to me how being unable to contest the decision of both the
Department and the PSC simultaneously was related to the Canadian Bill of
Rights, S.C. 1960, chapter 44, or contravened in such a way as to
justify Court intervention, the International Covenant on Civil and
Political Rights or the American Declaration of the Rights and Duties of Man.
The applicant is not faced with a difficulty in accessing the courts. The issue
here is rather to determine whether that access must comply with the
decision-making structure established by Parliament under the Act.
[19]
The appellant has not persuaded us that the
Judge had erred in so ruling. We do not find any palpable and overriding error
that warrants our intervention.
[20]
Consequently, the appeal will be dismissed with
costs fixed at $350, inclusive of taxes and disbursements.
“Johanne Trudel”
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