Date: 20021206
Docket: T-1726-01
Neutral citation: 2002 FCT 1271
BETWEEN:
JOHN FARRELL
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
[1] In this action the Defendant moves for dismissal of the action on the ground that there is no genuine issue for trial pursuant to Rule 213 of the Federal Court Rules, 1998.
[2] After hearing counsel for the parties in Toronto on December 2, 2002, considering the motion records including affidavits filed, the transcripts of examinations on those affidavits and review of the pleadings, an Order issued on December 3, 2002 striking the Statement of Claim and dismissing the Plaintiff's action. These are reasons for that Order for summary judgment.
[3] In the action the Plaintiff claimed a declaration that his employment by the Canadian Security Intelligence Service ("CSIS") was wrongfully terminated for which he claimed general and specific damages, aggravated damages, punitive or exemplary damages, costs on a solicitor and client basis, and interest from the date of issue of the claim on October 2, 2001 to judgment and thereafter until payment.
[4] The issue on which the motion to strike is based is the Defendant's submission that CSIS has never been an employer of the Plaintiff. It is said that the Plaintiff's claim does not set out essential facts to establish his employment by CSIS and that his employment by that service cannot be inferred from the facts alleged. Without any basis in the Defendant's facts alleged in the Statement of Claim, and in the affidavit of the Plaintiff filed in response to the motion, to establish his employment by CSIS, none of the remedies he seeks could be awarded even if the claim proceeded to trial.
[5] The Statement of Claim alleges Mr. Farrell's employment by CSIS in the following circumstances. He claims he attended an interview at CSIS regional headquarters in Toronto and was hired by a senior officer of CSIS, that he was provided with an office and equipment and was subject to direction by CSIS, though he was paid through Canada Post, where, at least initially his work concerned intercepting mail on behalf of CSIS. His responsibilities later changed, and in 1997 his surrogate employer was changed to a former Canada Post employee. He claims to have been entitled to, but was never paid, overtime pay. His employment was terminated without reasonable notice or salary in lieu of notice. He believes arrangements for his employment were made in this manner because CSIS did not want the fact of his employment to be publicly known.
[6] By the affidavit of Gaétan Ranger, Chief Headquarters Personnel Management of CSIS, in support of the Defendant's motion for judgment, the exclusive authority of the Director, CSIS, to appoint employees to CSIS, as provided under the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, s. 8, has been delegated to the Director General, Personnel Services of CSIS, and Headquarters in Ottawa must authorize all offers of employment. An offer of employment is made only after successful completion of various steps including submission of a written completed application for employment, a series of interviews, a security clearance, approval of the proposed appointment by the regional or headquarters Director General, and finally approval of the offer by the Director General, Personnel Services. The Plaintiff's Statement of Claim, and his later affidavit, make no reference to any of these steps in relation to his alleged employment by CSIS.
[7] Moreover, the affidavit of Mr. Ranger, attests to extensive searches by the Chief, Headquarters Personnel Management, through CSIS records of all applications for employment, employment files, the information systems and personnel management databases of CSIS, and through records of the regional office in Toronto. These searches reveal no record of the Plaintiff applying for, or being offered, employment by CSIS.
[8] The process for appointment to employment by CSIS is in accord with the CSIS Act, supra, the Public Service Staff Relations Act, R.S. 1985 c. P-35, the Public Service Employment Act, R.S.C. 1985, c. P-32 and the Financial Administration Act, R.S.C. 1985, c. F.10.
[9] It is well settled that an individual cannot become an employee of Her Majesty in Right of Canada without a specific appointment made in accord with procedures established in accord with these statutes. In this case, since the Director of CSIS is expressly authorized by Parliament to make appointments to CSIS, employees in the public service employed by CSIS must be appointed by the process authorized by the Director.
[10] The principle that an appointment to employment in the public service is required to be made in accord with statutory authority is of long standing. Employment as a public servant does not arise by other means it may not be inferred from the facts alleged, unless those include facts alleging that the authorized process has been followed. (See: Canada (Attorney General) v. Public Service Alliance, [1991] 1 S.C.R. 614 at 634; Gariépy v. Canada [1996] F.C.J. No. 191 (T.D.), upheld [1998] F.C.J. No. 698 (C.A.); leave to appeal dismissed [1998] S.C.C.A. No. 384).
[11] Under the Court's rules concerning summary judgment the Defendant in this action, having filed a defence, has brought Her motion and filed a motion record in accord with Rule 214, but Mr. Farrell, as the responding party failed to file a motion record in timely fashion as required by Rule 214(2). He did present a motion record to the Court's office on the last working day before the scheduled hearing, and I directed at the hearing that it be filed. It contains an affidavit of Mr. Farrell, sworn November 13, 2002, responding to the motion for summary judgment and setting out facts in addition to those in the Statement of Claim, seeking to show that there is a genuine issue for trial (Rule 215).
[12] By his affidavit, Mr. Farrell swore that he was employed by CSIS from February 27 to January 3, 1999, that he served in the Special Operational Services Branch. He states he responded to an invitation by a senior officer of CSIS to attend an employment interview at regional headquarters in Toronto where an opportunity for his employment was discussed. At the meeting he provided all requested information and provided full details of personal information required by the government application form that he completed. He was told that if he were employed he could not disclose he worked with or for CSIS but he was to represent that he was employed by Canada Post.
[13] Later, following the interview, he had a telephone call from the interviewing CSIS officer offering him employment with CSIS. His work was increasingly extended through the years of his service and he undertook a variety of tasks, though he continued to be paid the same hourly rate through Canada Post, without job benefits or overtime pay. He was provided with space in Canada Post facilities or elsewhere, he was given equipment and had a CSIS paid telephone assigned to him.
[14] When his employment arrangements were terminated he met with two senior officers of CSIS who offered to pay him $6,000 if he would not reveal his employment with CSIS. He refused. A letter from the Director of CSIS dated march 30, 1999, stated in part:
For the most part, your working relationship with the Canadian Security Intelligence Service (CSIS) has been in your Auxiliary Postal Inspector Program. In January, 1999, you chose, of your own volition, to discontinue working in that capacity. The Service is not accountable for and will not provide additional remuneration for any work you performed as an employee of Canada Post.
I recognise that you have assisted the Service in other ways from time to time and this has been much appreciated. On those occasions you were compensated directly by CSIS, commensurate with the nature of assistance provided. However, the Service is under no further obligation to you in that regard.
Given that you had gone through a period of unemployment, the Service offered you financial assistance in the amount of $6,000 to assist you in this period of transition. This offer was not intended to represent recognition of what you describe as your long term commitment to the programs of the Service. Rather is was meant to be a humanitarian gesture for the purpose of assisting you to fulfill financial obligations you would have incurred whilst unemployed. You refused to accept that offer.
[15] In written submissions counsel for the Defendant acknowledges that Mr. Farrell's services were provided as an independent contractor to third parties, not as an employee of CSIS. Even if the third parties were acting as surrogates for CSIS, which is denied, the Plaintiff's legal status could be no different than he had with the third parties. As an independent contractor he was not an employee of CSIS.
[16] Neither the Statement of Claim, nor the affidavit filed in response to the summary judgment motion, alleges facts to establish that the procedures authorized by the Director of CSIS for hiring employees we followed by Mr. Farrell. There is no evidence that an offer of employment was authorized by the Director or his delegate and no reference is made to any written offer of employment.
[17] If the facts stated by Mr. Farrell were established it would show that an officer of CSIS, who was not the Director, or the Director General, Personnel Services, purportedly acting on behalf of CSIS, offered him employment with CSIS, arranged for payment for his services and directed his work over eight years. That would not establish that he was an employee of Her Majesty serving with CSIS.
[18] Thus the legal basics for his claim for relief, his employment with CSIS, is not established by the facts set out. The declaratory relief and the damages sought for his alleged wrongful dismissal from employment simply are not possible unless arrangements for his employment by CSIS, in accord with authorized procedures, are set out in his claim and can be established at trial. The basis for those clams are not here alleged and there is no genuine issue for trial.
[19] Whatever the relationship between the Plaintiff and CSIS was, it is not alleged in terms necessary to establish his employment by CSIS, and any redress could only be as a result of an action based on some other claim than for wrongful dismissal from employment.
[20] For the Defendant it was urged that the Defendant in this action, originally named as the Canadian Security Intelligence Service, is properly Her Majesty the Queen. I agree, and the judgment order issued directs that the style of cause be changed to read henceforth, as at the commencement of these reasons, that Her Majesty the Queen is the Defendant.
[21] Counsel for Her Majesty requested costs. The order provides for costs to the Defendant in the amount of $500.00 unless the parties otherwise agree.
"W. Andrew MacKay"
J.F.C.C.
Toronto, Ontario
December 6, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1726-01
STYLE OF CAUSE: JOHN FARRELL
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, DECEMBER 2, 2002
REASONS FOR ORDER BY: MACKAY J.
DATED: FRIDAY, DECEMBER 6, 2002
APPEARANCES:
Mr. Patrick Martin
Agent for: Mr. Ernest Rovet
FOR THE PLAINTIFF
Ms. Charleen Brenzall
Mr. Sean Gaudet
FOR THE DEFENDANT
SOLICITORS OF RECORD: ERNEST ROVET
1278 Yonge Street, Suite 201
Toronto, Ontario
M4T 1W5
FOR THE PLAINTIFF
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE DEFENDANT
FEDERAL COURT OF CANADA
Date:20021206
Docket: T-1726-01
BETWEEN:
JOHN FARRELL
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER