Date: 20040123
Docket: T-1003-02
Citation: 2004 FC 99
OTTAWA, ONTARIO, this 23rd day of January, 2004
PRESENT: The Honourable Justice James Russell
BETWEEN:
DAVID GOODENOUGH
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Public Service Commission of Canada ("Commission") whereby it declined to investigate, pursuant to s. 7.1 of the Public Service Employment Act ("PSEA"), its own decision to conduct an open competition for the position of Director General, Canada Centre for Remote Sensing, Department of Natural Resources Canada. The decision refusing an investigation ("Decision") was communicated to the Applicant by letter dated May 29, 2002, from Francoise Huneault, and was received by the Applicant on June 3, 2002.
BACKGROUND
[2] On September 27, 2001 a competition was posted by the Public Service Commission of Canada for the position of Director General, Canada Centre for Remote Sensing. The position was classified as EX-03. The competition was open to "the public across Canada."
[3] The Applicant alleges that he understood this to mean that the competition was an internal, or "closed," competition held in conjunction with an external, or "open" competition.
[4] The Applicant applied for the position and was granted an interview on December 18, 2001. In total, there were 66 applicants of whom seven were granted interviews.
[5] A selection committee made up of six senior civil servants selected Robert Ryerson to fill the position. Mr. Ryerson did not work for the Public Service of Canada prior to his appointment to the position.
[6] On March 1, 2002, the Applicant decided to appeal Mr. Ryerson's appointment pursuant to s. 21 of the PSEA. The grounds of appeal were:
1. that the appointment of the successful candidate was not made on the basis of merit as contemplated by the PSEA;
2. that the Applicant was the most qualified candidate for the position;
3. that the competition was not conducted in accordance with the practice and procedure contemplated by the provisions of the PSEA;
4. such further and other grounds as might become evident after full disclosure under the PSEA.
[7] On April 10, 2002, the Commission wrote back to the Applicant and informed him that the competition in question was an "open selection process." The Applicant alleges that this was the first time he became aware that the competition was an open competition alone. Section 21 of the PSEA does not provide for a right of appeal from an appointment by open competition.
[8] The Commission then reviewed the Applicant's submissions to determine whether to investigate his complaint pursuant to s. 7.1 of the PSEA.
[9] The Commission informed the Applicant that he had not provided any grounds to substantiate the allegations made and asked him to provide further submissions. The Applicant provided further submissions on April 29, 2002, in which he raised two grounds for an investigation under s. 7.1 of the PSEA. First, he requested that the Commission investigate why the selection process was an open competition instead of a closed competition. Second, he requested that the Commission investigate why an individual from outside the Public Service, who was not better qualified, was selected over him.
DECISION UNDER REVIEW
[10] On May 29, 2002, the Commission informed the Applicant that it would not investigate this matter any further. The Commission stated as follows:
We now turn to the possibility of an investigation under section 7.1 of the PSEA to determine if it was in the best interests of the Public Service to make an appointment from outside the Public Service pursuant to section 11 of the PSEA. As it was the decision of the Commission that it was in the best interests of the Public Service to hold an open competition for this EX-03 position, you will understand that we will not investigate this matter in the Commission's name.
PERTINENT LEGISLATION
[11] Section 2.1 of the Public Service Employment Act, R.S.C. 1985, c. P-33 indicates as follows:
| 2. (1) In this Act,
...
"closed competition" means a competition that is open only to persons employed in the Public Service;
...
"open competition" means a competition that is open to persons who are employed in the Public Service as well as to persons who are not employed in the Public Service;
...
"Public Service" has the same meaning as in the Public Service Staff Relations Act.
... |
|
2. (1) Les définitions qui suivent s'appliquent à la présente loi. ...
« concours interne » Concours réservé aux personnes employées dans la fonction publique.
...
« concours public » Concours ouvert tant aux personnes faisant partie de la fonction publique qu'aux autres.
...
« fonction publique » S'entend au sens de la Loi sur les relations de travail dans la fonction publique.
... |
|
|
|
|
[12] Section 7.1 of the PSEA gives the Commission the power to investigate matters relating to appointments. It reads as follows:
| 7.1 The Commission may conduct investigations and audits on any matter within its jurisdiction. |
|
7.1 La Commission peut effectuer les enquêtes et vérifications qu'elle juge indiquées sur toute question relevant de sa compétence. |
|
|
|
|
[13] Section 11 of the PSEA reads as follows:
| 11. Appointments shall be made from within the Public Service except where, in the opinion of the Commission, it is not in the best interests of the Public Service to do so. |
|
11. Les postes sont pourvus par nomination interne sauf si la Commission en juge autrement dans l'intérêt de la fonction publique. |
|
|
|
|
ISSUES
The Applicant submits that this judicial review raises the following two issues:
What is the appropriate standard of review for a decision of the Commission that refuses to conduct an investigation under s. 7.1 of the PSEA?
Did the Commission make a reviewable error when it concluded that it could not investigate this matter because the Commission made the original decision to hold an open competition?
ANALYSIS
[14] The parties agree that the Commission does have the power, under s. 7.1 of the PSEA, to investigate its own decisions. My review of the relevant statutory provisions, the previous decisions of the Commission and this Court, as well as the Commission's own published policies, leads me to the conclusion that this is correct.
[15] I place no store by the Applicant's assertions that he was unaware of the true nature of the competition until the April 10, 2002, communication from the Commission. The notice for the competition entered on September 27, 2001, and inviting applications on or before October 10, 2001, makes it abundantly clear that the competition is open to "the public across Canada." If the Applicant was unaware that this was a completely open competition, then the misunderstanding was of his own making and the fact that he did not question the nature of the competition, but chose instead to enter it, cannot be held against the Commission.
[16] In my opinion, the Applicant only raises two objections to the Decision that deserve consideration. First of all, he says that the Commission committed a jurisdictional error by declining to proceed with the investigation. In other words, he is suggesting that the words in the Decision that say "we will not investigate this matter in the Commissions's name" should be read to mean "we cannot investigate this matter in the Commissions name."
[17] Alternatively, he argues that, even if the refusal to investigate is not based upon a jurisdictional error, but is a refusal to exercise a discretion, the refusal is still a reviewable error because it was based upon an irrelevant fact (i.e. the Commission's prior decision to hold an open competition) and ignored relevant factors raised by the Applicant.
[18] I can find nothing in the materials to support the Applicant's jurisdictional argument. In my opinion, what evidence there is suggests that the Commission was open to investigating its own prior decision and actively encouraged the Applicant to advance grounds as to why it should do so. Quite apart from the Decision itself, which clearly says "we will not investigate this matter" rather than "we cannot investigate this matter," the several exchanges between the Commission and the Applicant leading up to the Decision leave no doubt in my mind that the Commission considered itself both able to investigate, and open to an investigation, provided the Applicant could persuade it that there were grounds for such an undertaking.
[19] By letter from his legal counsel dated March 1, 2002, the Applicant appealed the results of the competition to the Commission. By letter dated March 27, 2002, the Commission acknowledged the Applicant's complaint and advised the Applicant as follows:
Over the next few weeks, this request will be reviewed to determine its acceptability. The acceptability of a request is based on the attached Public Service Commission's "Policy on the conditions governing the decision to investigate pursuant to Section 7.1 of the Public Service Employment Act" which came into effect on June 28, 2001.
[20] In a follow-up letter dated April 10, 2002, the Commission informed the Applicant as follows:
Please note that a right of appeal pursuant to section 21 of the Public Service Employment Act does not exist in an open competitive process. Section 21 provides for a right of appeal only against appointments made from within the Public Service by closed competition (or by a process of personnel selection under certain conditions.) However, an investigation can be conducted by the Recourse Branch upon request to review alleged irregularities in an open selection process. To do so however, reasonable grounds must be established to warrant an investigation.
Your submission has been reviewed based on the Public Service Commission's Policy on the conditions governing the decision to investigate pursuant to Section 7.1 of the Public Service Employment Act, copy of which has been provided to you, and it has been determined that you have not provided any grounds to substantiate the allegations made.
Therefore, should Mr. Goodenough wish to pursue his complaint further, reasonable grounds to support his allegations must be provided in writing by April 30, 2002. Otherwise, I will conclude that Mr. Goodenough is no longer interested in pursuing his complaint and I will close our file on this matter. If the complainant decides to provide grounds, they will be reviewed to determine if they warrant an investigation and you will be advised of our decision.
[21] By letter dated April 29, 2002, Applicant's legal counsel made it clear to the Commission that what the Applicant was seeking was an explanation as to why an open competition had been held, rather than a closed competition, and why an external candidate with no better qualifications than the Applicant had been chosen.
[22] It is worth noting at this point that the Applicant's complaints regarding an open competition only arose after the appointment had been made. The Applicant chose to participate in the competition without lodging a complaint as to its nature.
[23] The reply from the Commission to the Applicant's letter of April 29, 2002, points out that the Appeal Board has no jurisdiction to hear an appeal under s. 21 of the PSEA, because it was not a closed competition, but it goes on to advise the Applicant as follows:
We now turn to the possibility of an investigation under section 7.1 of the PSEA to determine if it was in the best interests of the Public Service to make an appointment from outside the Public Service pursuant to section 11 of the PSEA. As it was the decision of the Commission that it was in the best interests of the Public Service to hold an open competition for this EX-03 position, you will understand that we will not investigate this matter in the Commission's name.
We have been informed that Guyanne Sauvé, Executive Program Consultant, will be available at 995-7623 to answer your questions concerning this process. We will not be reviewing the Commission's decision to appoint this person.
Based on the above, we will not investigate the matter under section 7.1 of the PSEA, and will close our files (02-PSC-0153 and 02-RSN-0076).
[24] As I read this correspondence, it can be summarized to say that the Commission regarded itself as able to conduct an investigation under s. 7.1 of the PSEA into this matter but declined to do so because the Applicant did not provide any grounds to substantiate the allegations made. Consequently, the Commission declined to initiate an investigation but made Guyanne Sauvé, Executive Program Consultant, available "to answer your questions concerning this process."
[25] I see no jurisdictional refusal and no reviewable error on this point.
[26] But the Applicant goes further and says that the Commission's refusal to conduct an investigation under s. 7.1 of the PSEA was based solely upon the fact that the Commission had previously determined that it was in the best interests of the Public Service to hold an open competition for the EX-03 position.
[27] The May 29, 2002, letter, however, cannot be read totally out of context. The Applicant was well aware from the correspondence already quoted that the Commission had invited him to state his grounds for the initiation of an investigation, which grounds would then be reviewed to determine if an investigation was warranted. The Applicant did not advance any grounds that the Commission considered worthy of an investigation.
[28] It is true, as the Applicant says, that the letter of May 29, 2002, does not specifically say that the Applicant has not advanced sufficient grounds, and the Applicant argues that the Commission cannot now argue that there were other reasons for the Decision that were not stated in the May 29, 2002 letter.
[29] But the letter does say that the Executive Program Consultant "will ..... answer your questions concerning this process," thus clearly indicating, in my opinion, that the grounds advanced by the Applicant had been considered by the Commission and that, while they might deserve an explanation, they did not warrant a full investigation. The import of the letter is clear: the Commission had already considered the issue of why an open competition was in the best interests of the Public Service and the Applicant had advanced no grounds to justify the Commission's exercising its discretion to revisit this issue. This position becomes even clearer when the letter of May 29, 2002, is viewed in the context of the whole correspondence between the Applicant and the Commission on this issue. There was no reviewable error in this regard.
[30] There was significant disagreement between the parties as to the appropriate standard of review that should be applied to a Decision of this nature. It may be that a full rationalization of the relevant jurisprudence and competing arguments will be required at some time. But this is not the occasion for such a discussion because my decision is the same irrespective of the standard that is applied. There is no reviewable error apparent in the Decision. The Commission was correct in its approach to dealing with the Applicant's complaints concerning the competition.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
2. The Applicant shall pay costs to the Respondent.
"James Russell"
JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1003-02
STYLE OF CAUSE: David Goodenough v. Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 4, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE RUSSELL
APPEARANCES:
Mr. Christopher Rootham FOR THE APPLICANT
Mr. J. Sanderson Graham FOR THE RESPONDENT
SOLICITORS OF RECORD:
Nelligan O'Brien Payne LLP FOR THE APPLICANT
Ottawa, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of
Canada