BETWEEN:
and
REASONS FOR ORDER
[1] These reasons follow the hearing of an application for judicial review, and the receipt of post-hearing written submissions, relating to a decision of Adjudicator Ian R. Mackenzie, arising from a reference to adjudication pursuant to section 92 of the Public Service Staff Relations Act[1] of a grievance filed by the Respondent concerning the employer’s decision to terminate her for non-disciplinary reasons effective the 28th of November, 2003. The termination was a result of the revocation of the Respondent’s “Secret” security clearance and the denial of an application for a
“Top Secret” security clearance for her. The decision under review is dated the 8th of December, 2005.
BACKGROUND
[2] The reasons for the decision under review, under the heading “Summary of the evidence”, include the following Statement of Agreed Facts submitted by the parties before the Adjudicator, the Respondent in this proceeding and “Treasury Board (Privy Council Office)”, now represented by the Applicant. Before the Court, neither party expressed any concern that the “Statement of Agreed Facts” presented to the Adjudicator was in any aspect inaccurate or incomplete, to the date of the hearing before the Adjudicator. For ease of reference, that Statement of Agreed Facts is reproduced here:
Treasury Board (Privy Council Office) and the Public Service Alliance of Canada agree that the following facts, relating to the grievance referenced above are not in dispute:
[1] The grievor was born on January 30, 1963 in Lanzhou, China. She arrived in Canada on February 21, 1995, after having married a Canadian citizen on January 6, 1995. She was granted Canadian Citizenship on April 12, 1999.
[2] The following is a summary of the grievor’s federal government work history:
•May 13, 2002 to September 2, 2002 (term appointment) Senior Advisor, Communications & Outreach (IS 05) Public Service Commission… .
•September 3, 2002 to October 15, 2002 (deployment to term position)
Senior Communications Advisor, Communications and Marketing Branch (IS 05) Industry
Canada… .
•October 16, 2002 (indeterminate appointment)
Senior Communications Advisor, Communications and Marketing Branch (IS 05)
Industry Canada… .
•Upon having consulted the grievor’s résumé, Maurice Jorre de St. Jorre of the PCO contacted the grievor in an effort to recruit her to work as a Senior Analyst.
•February 24, 2003 (deployment)
Senior Communications Analyst, Communications and Consultations Secretariat (IS
05)
Privy Council Office… .
•February 24, 2003 to August 29, 2003 (acting appointment for a specified
period)
Senior Analyst, Communications and Consultations Secretariat (IS 06)
Privy Council Office… .
[3] The Government of Canada has promulgated the Government Security Policy, which applies to all departments listed in Schedule 1, Schedule 1.1 and Schedule II of the Financial Administration Act (FAA). The Policy provides for both a reliability status for employees who require access to government assets and for a security clearance for employees who require access to classified information and assets and have a valid reliability status. The security clearance indicates a successful completion of a security assessment. There are three security clearance levels: Confidential, Secret and Top Secret. The Privy Council Office is named in Schedule 1 of the FAA… .
[4] The Government of Canada has also promulgated the Personnel Security Standard, which establishes the operational standard and certain technical level procedures for personnel security… .
[5] The grievor’s substantive position as Senior Communications Analyst (IS-05) (PCO13239) required a security clearance of SECRET. … .
[6] The work description for the IS-06 position (13291), which was last revised in 2001, showed that the incumbent required a security clearance of SECRET. However, prior to assuming her duties at PCO on February 24, 2003, the grievor completed a security screening form that was submitted by PCO to CSIS on February 14, 2003 to have it do a security assessment for the grievor for the purpose of a TOP SECRET security clearance… .
[7] The grievor was not required to have a SECRET security clearance while employed at Industry Canada. Upon her arrival at the PCO on February 24, 2003, the grievor was granted a SECRET security clearance; however, she was restricted from having access to TOP SECRET material.
[8] The CSIS Security Assessment identified adverse information regarding the grievor’s loyalty to Canada and it was recommended that she should not be granted TOP SECRET security clearance, and that her SECRET security clearance should also be revoked. As only the deputy head can deny, revoke or suspend a security clearance (Section 10.9 of the Government Security Policy), the Director, Security Operations at PCO wrote to management to initiate this decision making process…. .
[9] Management met with the grievor on August 28, 2003, to advise her that as a result of the CSIS security assessment, concerns had been raised which needed further examination. She was informed that effective immediately and pending the outcome of this examination, she would be placed on leave with pay and denied access to PCO work sites. It was explained to her that the TOP SECRET assessment could also be used to revoke the SECRET clearance, which would mean that she could no longer work at the PCO as the minimum security clearance level is SECRET. It was also explained that PCO would therefore have to look at employment prospects in different departments. The grievor was advised that she would be provided an opportunity to rebut the information in the CSIS report, which would be provided to her in the next few days. …
[10] The grievor was provided with the information with respect to certain concerns raised by CSIS and given the opportunity to respond. …
[11] By letter, dated September 15, 2003, the grievor responded to the concerns raised by CSIS. In her rebuttal, she states that she takes her loyalty to Canada as an honour and privilege and denies engaging in any activities that would pose any threat to the security or national interests of Canada. … .
[12] A recommendation was made to the Clerk of the Privy Council (deputy head) that he deny the grievor’s TOP SECRET security clearance and that he revoke her SECRET clearance. The Clerk was advised a SECRET clearance was a mandatory requirement for employment at the PCO. The PCO was aware of its obligations under Section 5 of the Personnel Security Standard upon revocation of the grievor’s security status. The Clerk also decided, based on the CSIS security assessment, that he could not recommend her for employment elsewhere in the Federal Public Service and therefore he took no steps to do so. …
[13] The decision of the Clerk of the PCO was to deny the grievor’s TOP SECRET security clearance and to revoke her SECRET clearance. She was so advised by letter, dated October 10, 2003 … .
[14] Management met with the grievor on October 16, 2003, to discuss with her the implications of the Clerk’s decision. She was advised that as a result of this decision and because that at least a valid SECRET clearance was a requirement for employment at PCO, her employment would be terminated. The decision to terminate the grievor was not related to work performance. See Management’s notes re meeting with the grievor on October 16, 2003… .
[15] During the above-noted meeting, the grievor was informed that effective the end of day on November 28, 2003, her employment with the PCO would be terminated pursuant to section 11(2)(g) of the FAA. She was further advised that she would remain on leave with pay until that date. …
[16] The grievor filed a complaint with the Security Intelligence Review Committee (SIRC), on October 16, 2003 … .
[17] The grievor grieved her termination and requested that the letter of termination be withdrawn and that she be reinstated with no loss of pay or benefits. …
[18] Management issued a final level reply to the grievor’s grievance on November 24, 2003, in which she was advised that her grievance and requested corrective action were denied. …
[19] The grievor’s complaint to the SIRC was dismissed on March 4, 2005. The decision to dismiss the complaint was based on the evidence before the Chairperson, not all of which would necessarily have been disclosed to the grievor where to do so would jeopardize national security. The Chairperson concluded that there were reasonable grounds for the Clerk to have decided that the grievor should be denied Level III clearance and to revoke her Level II clearance… .
[References to 12 Appendices to the Statement of Agreed Facts deleted]
[3] The Adjudicator allowed the Respondent’s grievance in part. He ordered:
[76] I order that the employer conduct a diligent search for an alternate position for the grievor at an equivalent (IS-5) or lower level within the parts of the public service for which it is the employer, for a period of two months from the date of this decision.
[77] I order the employer to reinstate Ms. Zhang in her leave with pay status effective November 28, 2003, until the employer has completed its search for an alternate position.
[78] I will remain seized of the matter solely in relation to the implementation of the reinstatement to leave with pay status should the parties have any difficulties in implementing this part of the order.
[4] During the course of the hearing of this application for judicial review, and as subsequently elaborated on, the Court was advised by counsel that, first, no injunction was sought by or on behalf of the Applicant to restrain the impact of the Adjudicator’s decision pending judicial review and that, in fact, the Respondent had been reinstated to “leave with pay” status effective the 28th of November, 2003 and that a “diligent search for an alternate position” for the Respondent at an equivalent (IS-5) or lower level within the parts of the public service for which Treasury Board is the employer, had been undertaken and that the search had ultimately been successful resulting in an appointment of the Respondent on the 5th of September, 2006 to a position classified at the IS-06 level, a level higher than that of the positions she earlier occupied. Further, her reinstatement was retroactive such that her service has been continuous from the date she was originally hired.
[5] Thus, before this application for judicial review came on for hearing before the Court, the decision under review had been more than fully implemented.
A PRELIMINARY ISSUE - MOOTNESS
[6] Following the hearing of this application for judicial review, during a teleconference between the Court and counsel, the Court advised counsel of its concern regarding mootness of this matter, an issue not presented to, or argued before, the Court. Counsel agreed to provide written submissions on the issue and that the Court could deal with the issue without reopening the hearing. An Order of the Court, dated the 28th of November, 2006, issued establishing a schedule for written submissions on the mootness issue only and confirming that the hearing would not be reconvened. The Respondent filed written submissions with the Court on the 19th of January, 2007. Counsel for the Applicant filed reply submissions on the 25th of January, and counsel for the Respondent advised the Court on the 2nd of February, that the Respondent would not be exercising its right of reply.
The Principle of Mootness
[7] The seminal case on mootness is Borowski v. The Attorney General of Canada[2]. In Borowski, Justice Sopinka, for the Court, wrote at page 353 of the reasons:
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical affect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court’s discretion are discussed hereinafter.
The approach in recent cases involves a two-step analysis. First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term “moot” applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the “live controversy” test. A court may nonetheless elect to address a moot issue if the circumstances warrant.
[emphasis added]
[8] Justice Sopinka goes on to consider principles governing the exercise of discretion to hear a matter, notwithstanding it is moot. At pages 358 and following, Justice Sopinka notes:
Since the discretion which is exercised relates to the enforcement of a policy or practice of the court it is not surprising that a neat set of criteria does not emerge from an examination of the cases.
[9] The first criterion or rationale that Justice Sopinka identifies flows from the principle that a court’s competence to resolve legal disputes is rooted in the adversary system. In this regard, he speaks of “collateral consequences” of [an] outcome that will continue to provide a necessary adversarial context.
[10] The second broad rationale governing the exercise of discretion he describes as a “…concern for judicial economy.” He notes that this concern must be weighed against a circumstance in which a case raises “…an issue of public importance of which a resolution is in the public interest.”
[11] The third consideration identified by Justice Sopinka is “…the need for [a] Court to demonstrate a measure of awareness of its proper law-making function. The Court must be sensitive to its role as the adjudicative branch in our political framework”.
[12] Justice Sopinka concludes his analysis of the principles governing exercise of discretion with the following brief paragraph:
In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, or vice versa.
Is this application for judicial review moot?
[13] On this application for judicial review, apart from the issue of standard of review, the Applicant raises the following issues:
- Did the adjudicator exceed his jurisdiction in ordering the employer to search for an alternate position outside the PCO (the Privy Council Office)?
- Did the adjudicator render a patently unreasonable decision in finding “exceptional circumstances” did not exist?
- Did the adjudicator exceed his jurisdiction in reinstating the Respondent having decided that she did not meet the conditions for employment in her substantive position?
Submissions on behalf of the Parties
[14] Counsel for the Respondent notes that both the Public Service Employment Act[3] and the Public Service Staff Relations Act[4] have been substantially amended by the coming into force of the Public Service Modernization Act[5]. Further, counsel notes that the Personnel Security Standard has been amended since all times relevant to this application for judicial review to delete the portion of Article 5 which read as follows and which was at issue in this application for judicial review:
If the individual concerned is an employee, consideration must be given to reassignment or appointment to a less sensitive position at an equivalent level. Should no such position be available, appointment to a position at a lower level must be considered. Termination of employment must be considered only in exceptional circumstances and only when all other options have been exhausted.
[emphasis added]
[15] Further, counsel submits that, in light of the actions of the Applicant in not seeking a stay of the substance of the decision under review and, in effect, implementing the decision under review, no live controversy relevant to this application for judicial review remains outstanding.
[16] In response, counsel for the Respondent submits that a live controversy remains outstanding between the parties since, from the time of the decision under review, approximately $200,000 has been expended by the Applicant in implementation of the decision under review and that therefore a significant amount of money is at stake. Counsel for the Applicant urges:
…If the decision of the Adjudicator is quashed this money will be recoverable as a debt owing to the Crown.
ANALYSIS
[17] It is beyond question that the issue of a debt owing to the Crown is not before this Court on this application for judicial review. Further, I am satisfied that if this application for judicial review were adjudicated on its merits, the issue of monies allegedly owing to the Crown would not be adjudicated. Rather, if the Crown were successful, the decision under review would be set aside and the matter would be referred back to the same Adjudicator or a different Adjudicator for re-determination. Whatever might be the result of such a re-determination, the issue of monies owing to the Crown would continue to remain outstanding.
[18] By contrast, if this application for judicial review were dismissed as moot, the issue of monies owing to the Crown would remain alive for disposition by this Court or another court in the context of a different proceeding properly constituted to determine that issue.
The Court’s Conclusion on Mootness
[19] On the basis of the foregoing submissions and brief analysis, I am satisfied that, on consideration of all of the materials before the Court on this application for judicial review, no live controversy remains between the parties. Rather, the issues before the Court on this application for judicial review have been fully settled. The Applicant chose not to seek a stay of the decision under review but rather, to implement it in full, with the result that, whether or not the decision under review was sustainable, substantial justice has been done between the parties. The statutory and administrative regime that prevailed at the time this application for judicial review was implemented has substantially changed. A decision on the merits of this application for judicial review could do nothing but confirm the status quo or set the parties back to a further hearing before an Adjudicator, thus indefinitely postponing a regularization of the relationship between the parties.
[20] The fact that the Applicant has been reinstated in the public service in a position at a higher classification than that she occupied before she was dismissed speaks eloquently to her qualifications for employment in the public service. By contrast, the fact that the employer saw fit to make such an appointment speaks equally eloquently to a conclusion that security considerations are not central as between the parties.
Whether or not to exercise a discretion to hear this application for judicial review
[21] If indeed this Court’s competence to resolve a legal dispute that remains between the parties, that is to say, liability of the Respondent to the Applicant for substantial funds expended and that will continue to be expended in the Respondent’s voluntary undertaking to implement the decision of the Adjudicator that is here at issue, that competence simply cannot be exercised in the context of this application for judicial review. Put another way, no relevant “adversarial context” continues to arise between the parties on this application for judicial review. Thus, the first rationale for an exercise of discretion to hear the substance of this application for judicial review is missing.
[22] Given the above, concerns for judicial economy auger against determining the substance of this application for judicial review, notwithstanding that submissions on that substance have been heard. Whatever might be the result on an adjudication of the substance on this application, the only remaining issue between the parties, a matter of unjust enrichment in favour of the Respondent as regards the Applicant, would remain outstanding. Further, the applicable legislative and regulatory framework has substantially changed.
[23] I am satisfied that, in light of the substantial change in the legislative and regulatory regime governing issues such as those before the Court in this matter, whether or not the issues here before the Court are or were of public importance, their resolution in the context of this matter is not now in the public interest.
[24] In the result, I determine not to exercise my discretion to dispose of this application for judicial review on the merits, notwithstanding that it is moot.
SUBSIDIARY ISSUES
[25] In Bedada v. Canada (Solicitor General)[6], my colleague Justice Phelan, in considering an issue of mootness in a substantially different context, wrote at paragraph [16] of his reasons:
In Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, the Supreme Court expanded on the Borowski rationale. The Court, at paragraphs 5 and 9-12, held that issues of law which are not necessary for the resolution of an appeal should not be decided. This is particularly true with respect to constitutional issues where the foundation upon which the proceedings were launched had ceased to exist.
[26] I am satisfied that the foregoing applies on the facts of this matter albeit that a constitutional issue is not here before the Court.
[27] In the same reasons, Justice Phelan concluded at paragraphs [21] and [22] of his reasons:
For these reasons, the Court exercises its discretion not to decide this matter. As the Respondent did not raise mootness, it is not entitled to its costs.
This judicial review will be dismissed without costs.
[emphasis added]
[28] As in Bedada, the Respondent did not here raise the issue of mootness. That issue was only raised at the hearing of this application for judicial review, by the Court, when neither counsel was prepared to argue the issue. In this particular circumstance, despite the fact that the Respondent now urges that this matter is moot and seeks costs, no costs will be awarded.
CONCLUSION
[29] For the foregoing reasons, this application for judicial review will be dismissed as moot without consideration of the matter on its merits. No costs will be awarded.
Ottawa, Ontario
March 1, 2007
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-17-06
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
Applicant
and
HAIYAN ZHANG
Respondent
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 30, 2006
APPEARANCES:
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Richard E. Fader
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Edith Bramwell
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SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa
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Public Service Alliance of Canada Legal Services Ottawa
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