Date: 20021119
Docket: T-1013-01
Neutral citation: 2002 FCT 1197
BETWEEN:
WENDY SHELLIE MORRIS
and LINDA WILCOX
Applicants
and
ATTORNEY GENERAL OF CANADA, S. NOEL,
D. R. KELLY, A. PEACH, L.M. WILCOX
Respondents
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a decision of the Public Service Commission (the "Commission") whereby the following "corrective measures" in relation to a completed "closed competition" were required to be taken:
- The department will ensure selection according to merit by initiating a new closed selection process;
- The department will ensure all candidates in selection process 1998-REH-CC-NFLD-60 will be given an opportunity to apply to this new closed selection process;
- New assessment tools will be developed to assess candidates entering the process;
- A new eligibility list will be established and new appeal rights will be issued; and
- The department will notify all of the candidates of the corrective action.
The decision under review is reflected in a letter dated the 10th of May, 2001 originating with the Commission and addressed to a "Human Resources Consultant" in the Department of Human Resources Development Canada ("HRDC") at St-John's, Newfoundland[1].
[2] The applicants seek an order setting aside the decision under review and referring the matter back to the Commission with a direction that an earlier decision of the Commission dated the 3rd of August, 2000, requiring different "corrective measures", be implemented forthwith. The applicants also seek their costs of the application.
THE STATUTORY SCHEME
[3] The statutory scheme under which appointments to and from within the Public Service of Canada are made is somewhat complex. As it is relevant for the purpose of this judicial review, it may be briefly described as follows.
[4] By subsection 3(1) of the Public Service Employment Act[2] (the "Act") the Commission is established. By paragraph 5(a) and section 8 of the Act, the Commission is provided exclusive right and authority to make and provide for appointments to or from within the Public Service of persons for whose appointment there is no authority in or under any other Act of Parliament.
Such appointments are to be made of qualified persons in accordance with the provisions and principles of the Act. Subsections 6(1) and (5) provide authority to the Commission to delegate, subject to limited exceptions, any of its powers, functions and duties to a deputy head and for a deputy head to subdelegate powers, functions and duties delegated to him or her by the Commission.
[5] One of the principles, generally considered the fundamental principle of the Act in accordance with which appointments are required to be made, is the "merit principle" provided in section 10 of the Act.
[6] One of the non-delegable powers, functions and duties of the Commission is reflected in section 21 of the Act which provides for appeals from selections for appointment made by, along with one other process, closed competition. "Closed competition" is defined in subsection 2(1) of the Act to mean a competition that is open only to persons employed in the Public Service. Subsection 21(1) provides for an appeal to an appeal board by an unsuccessful candidate. The appeal board is charged with the responsibility of conducting an inquiry into the selection process that is under appeal. Upon being notified of a decision of an appeal board, subject to subsection 21(3), the Commission shall, if an appointment has been made by reason of the selection process under appeal, confirm or revoke the appointment. If no such appointment has been made, the appeal board may make or not make the appointment.
[7] Subsection 21(3) of the Act authorizes the Commission, where an appeal board has determined that there was a defect in the process for the selection of a person for appointment, to take such measures as it considers necessary to remedy the defect. Subsection 21(4) provides for an appeal where a person is appointed or is about to be appointed following implementation of "corrective measures" ordered by the Commission pursuant to subsection 21(3).
[8] Subsection 3(1), the opening words of section 5 and paragraph (a) of that section, subsections 6(1) and (5), sections 8 and 10 and subsections 21(1), (3) and (4) of the Act are set out in a Schedule to these reasons.
BACKGROUND
[9] The applicants successfully appealed under subsection 21(1) of the Act against one or more appointments or proposed appointments following a closed competition for the position of Investigation and Control Officer at HRDC's Harbour Grace, Newfoundland, office. By a decision dated the 1st of March, 2000, the appeal board allowed the applicants' appeal on the basis that the selection board failed to exercise its obligations to rate candidates on comments from references which comprise half the marks for each of five (5) "personal suitability" sub-factors. The appeal board also concluded that the marking of the knowledge qualifications of one of the successful candidates was unreasonable. No judicial review was sought of the decision of the appeal board.
[10] The decision of the appeal board was referred to the Commission for consideration of the issue of providing a "corrective measures" order under subsection 21(3) of the Act. Representatives of HRDC and of the applicants were consulted and provided an opportunity to make representations. A formal "corrective measures" order was issued by the Commission on the 3rd of August, 2000.
[11] HRDC took issue with the "corrective measures" ordered. Once again representatives of HRDC and of the applicants were consulted and provided an opportunity to make representations. In the result, modified "corrective measures" were ordered setting out in greater detail the nature and scope of the review to be undertaken by HRDC in relation to each of the knowledge questions at issue in the closed competition. HRDC maintained its objection to the "corrective measures" even as modified, and advised the Commission that it would not implement the "corrective measures", particularly in accordance with the implementation deadline established by the Commission which was the 30th of April, 2001. On the 26th of April, 2001, the applicants' representative wrote to the Commission. His letter[3] reads in part as follows:
...We are firmly of the opinion that any further competitive process is not warranted. It is our opinion that the proper processes have been followed and that there is a legal obligation under the P.S.E.A. to have the corrective measures implemented.
In that regard and on behalf of the appellants, I wish to advise that they have been far more than patient while this matter is resolved. It is now some 16 months since the case was presented and 14 months since the decision was rendered.
I am, therefore, requesting that this matter be brought to a close by providing clear and concise direction to the department and that this matter be resolved no later than May 15th. Requesting that the matter be resolved "within a reasonable time" no longer seems applicable to this case. If there can be no resolution by May 15th, I will have no alternative but to request an investigation into this matter.
I would appreciate being advised as soon as possible of what, if any, action may be expected in this matter.
[12] Consultation followed among officers within the Commission. Apparently without further notice to HRDC, and certainly without further notice to the applicants notwithstanding the last of the paragraphs above quoted from their representatives' letter of the 26th of April, 2001, the decision here under review was issued. To summarize, the decision under review scrapped the earlier closed competition process and ordered HRDC to start all over again. This, virtually two years after finalization of the closed competition that led to the applicants' successful appeal to the appeal board.
THE ISSUES
[13] In my terms rather than those put forward on behalf of the applicants and the respondent, the issues arising on this application for judicial review are the following:
- first, did the Commission have the authority to make the decision under review or was it functus by reason of earlier "corrective measures", and a revision or clarification of those "corrective measures", ordered under subsection 21(3) of the Act arising out of the same closed competition, which earlier "correctives measures" were entirely different in nature from the "corrective measures" prescribed in the decision under review;
- second, in arriving at the decision under review, did the Commission breach the duty of fairness incumbent on it;
- third, is the decision under review open to judicial review; and
- fourth, did the Commission, in arriving at the decision under review, exercise its authority for an improper purpose.
[14] A fifth issue, not raised on behalf of either the applicants or the respondents, that issue being mootness, was raised by the Court at the opening of the hearing of this application for judicial review. I will first, briefly comment on that issue.
ANALYSIS
a) Mootness
[15] At the opening of the hearing of this matter, counsel advised me that the new closed competition contemplated by the order under review had taken place and the applicants had participated in that competition. The results of this second competition were the subject of an appeal to an appeal board. The appeal board issued its decision regarding the competition and that decision is now before this Court on judicial review. In short, a lot of water has passed under the bridge in relation to the efforts by HRDC to staff a position or positions of Investigation and Control Officer at HRDC's Harbour Grace Newfoundland office since the date of the decision here under review. The question thus arises, does the passage of that water under the bridge render this application for judicial review moot?
[16] In Borowski v. Canada (Attorney General)[4], Justice Sopinka, for the Court, wrote at page 353:
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to consider 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 effect 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. [emphasis added]
[17] Against the foregoing test, I am satisfied that events occurring after the initiation of this proceeding have affected the relationship of the parties so that no present live controversy exists in relation to the decision here under review which affects the rights of the parties. That is not to say that no present live controversy exists, but rather that the present live controversy that exists arises out of events superceding the decision here under review and the initiation of this proceeding.
[18] But that is not the end of the matter. As Justice Sopinka notes, there remains a discretion to depart from the general policy or practice regarding mootness. One of the circumstances that would warrant departing from the general policy or practice is the existence of an opportunity to resolve an issue of public importance where such resolution is in the public interest. Justice Sopinka notes at page 361 of his reasons in Borowski, supra:
The economics of judicial involvement are weighed against the social cost of continued uncertainty in the law.
[19] Weighing the economics of judicial involvement on the facts before me against the social cost of continued uncertainty regarding the authority of the Commission to make an order such as that here under review where it has previously ordered corrective measures under subsection 21(3) of the Act, and also taking into account the fact that this matter proceeded to the point of hearing with all of the investment of time and resources that that entails without either party to the proceeding objecting on the basis of mootness to the hearing going forward, I was satisfied that I should hear the matter, notwithstanding my conclusion that no live controversy exists between the applicants and the respondents arising out of the decision under review.
b) Did the Commission have the authority to make the Order under review or was it functus by reason of earlier corrective measures ordered under subsection 21(3) arising out of the same closed competition which were entirely different in nature from the "corrective measures" prescribed in the decision under review?
[20] Counsel for the applicants conceded that, following a decision of an appeal board in circumstances such as those in this matter, it is open to the Commission to decline to exercise its authority to prescribe "corrective measures" under subsection 21(3) of the Act and to order that a new competition be conducted or, put another way, to order a department of Government to return to the point of beginning by instituting a new competition. In Maassen v. Canada (Attorney General),[5] Justice McKeown had before him just such a fact situation. There, the Commission had directed a federal department to conduct a new competition following a successful appeal to an appeal board. In the letter conveying the direction, the Commission wrote:
I feel it is important to reiterate at this point that this selection process is a new process, not a corrective measure. As a new selection process it has no links to the previous one, generating its own set of rights. [emphasis added]
[21] Justice McKeown wrote at paragraphs [16] and [17] of his reasons:
The Applicants' position is that subsection 21(3) demands that the Commission take corrective measures once it has revoked an appointment that has been successfully appealed to the Appeal Board. The Applicants rely on a previous Appeal Board decision, ..., as meaning that the Commission was required to take corrective measures in accordance with the Appeal Board decision. However, in my view subsection 21(3) simply states that the Commission is empowered to remedy a defect determined by the Appeal Board, but does not require the Commission to do so. As stated earlier, subsection 21(2) and 21(3), the only action the Commission is required to take upon successful appeal against appointment is to revoke such appointment.
In my view, the Commission had the authority to direct that a completely new selection process be conducted pursuant to [paragraph 5(a), section 8 and subsection 6(1)] of the PSEA .... and section 10 of the PSEA ... [citation and a quotation of subsection 10(1) of the Act omitted, emphasis added]
[22] On the facts before me, the Commission, rather than proceeding directly to order a new competition, directed corrective measures under subsection 21(3) of the Act which it unquestionably had the discretion to do. Counsel for the applicants urged that, having followed that course, the Commission was bound to enforce the implementation of the corrective measures that it ordered and, while it was open to the Commission to modify or amplify those corrective measures as indeed the Commission did in this matter, it was not open to it to effectively abandon them in the face of opposition from HRDC to the implementation of those measures and instead order a new competition. Counsel urged that, having exercised its authority under subsection 21(3), the Commission was effectively functus in relation to its authority under that subsection and was not at liberty to order completely different "corrective measures".
[23] Whether or not the Commission was functus in relation to its authority under subsection 21(3) of the Act, is, I am satisfied, not the issue.
[24] While the Commission's decision that is here under review is entitled "CORRECTIVE MEASURES", the action ordered to be taken is described as "corrective action" and the authority for the order is identified as subsection 21(3) of the Act, I am satisfied that those elements of the decision are not determinative of the nature of the decision and the authority under which it is made. I agree with Justice McKeown where he notes in the passage from Maassen earlier cited, that in fact the authority for the Commission to order a new competition flowed not from subsection 21(3) of the Act, but rather from paragraph 5(a), section 8 and subsection 6(1) of the Act which provide a broad general authority to ensure that appointments to or from within the Public Service are made in accordance with the merit principle enunciated in subsection 10(1) of the Act. Thus, the order here under review did not direct "corrective action" in respect of the earlier competition. Rather, it ordered a new competition in circumstances where the Commission, having attempted to achieve "corrective action" in respect of the earlier competition concluded that, in the face of the passage of time and the reluctance of HRDC to implement that corrective action, the corrective action should be abandoned to rescue what was left of a rational relationship among the Commission's mandate, the delay since the conduct of the earlier competition, and the statutory objectives of the Act, read as a whole.
[25] In the result, I conclude that the question of whether the Commission was functus to substitute alternative corrective measures for those already ordered by it under the authority of subsection 21(3), and once modified, is simply not relevant since the authority under which the Commission acted in providing the order here under review was not subsection 21(3) of the Act.
[26] In the result, I would answer this issue question in the affirmative. The Commission did have the authority to make the order here under review. That authority derived not from subsection 21(3) of the Act but rather from paragraph 5(a), section 8 and subsection 6(1) of the Act and continued in effect notwithstanding that the Commission had earlier attempted to "patch up" the defects in the first competition by "corrective measures".
c) In arriving at the decision under review, did the Commission breach the duty of fairness incumbent on it?
[27] It was not in dispute before me that the decision of the Commission here under review was administrative in nature and entirely discretionary to the Commission. That being said, while the content of the duty of fairness owed by the Commission in arriving at the decision might be said to be minimal, it was not, against the criteria discussed in Baker v. Canada (Minister of Citizenship and Immigration)[6], nonexistent. Against those criteria, I am satisfied that the Commission had a duty to keep the parties to the dispute before it advised of the case to be met and to provide them with an opportunity to respond to that case.
[28] As earlier noted in these reasons, the applicants, through their representative, had put the Commission on notice that they had strong concerns about a course of action that would involve abandoning the corrective measures already in place and returning to the point of beginning through the ordering of a new competition. Also as earlier noted in these reasons, there were internal discussions within the Commission, which were documented, regarding the respective merits of continuing to pursue corrective measures, commencing an investigation under the authority of section 7.1 of the Act and ordering a new competition. I am satisfied that the Commission was under an obligation to advise the applicants and HRDC of those alternatives and of the perceived merits and demerits of each and to provide the applicants and HRDC with an opportunity to make responsive representations. It failed to do so.
[29] Based upon the foregoing considerations, I am satisfied that the Commission, which was apparently assiduous in ensuring fairness to the parties up to the point at which it began to consider alternatives to the course of action it had been pursuing, breached the duty of fairness to those parties incumbent on it in arriving at the decision under review. That being said, in light of events that have transpired since the decision under review was arrived at, such events being earlier referred to in these reasons, I am simply not satisfied that the breach of fairness which I have found warrants setting aside the decision under review and returning the subject matter of the first competition to the Commission. I am satisfied that to do so would be inconsistent with achievement of the principle of merit in relation to the filling of the position or positions in question in a timely manner, to the extent that it remains possible to do so.
d) Is the decision under review open to review by this Court on an application for judicial review?
[30] I am satisfied that the short answer to this question is "yes".
[31] Counsel for the respondents urged that, in respect of closed competitions where a complaint is made regarding the conduct of the competition, the Act constitutes a complete scheme or code and that this Court should respect Parliament's intent in enacting that scheme or code. There can be no question that the Court should respect Parliament's intent. That being said, I am satisfied that, in entertaining this application for judicial review, this Court in no way offends against the intent of Parliament. The decision of this Court in Maassen, supra, is consistent with the foregoing.
[32] Here, a closed competition was conducted. The applicants complained against the conduct of that competition. That complaint went before an appeal board. The appeal board reached a decision from which no judicial review was taken. The Commission then acted under the authority of subsection 21(3). If its corrective measures had been implemented in a manner unsatisfactory to either party, that concern could have gone back to an appeal board. But the corrective measures prescribed by the Commission were never implemented. Rather, the Commission finally determined, under authority other than subsection 21(3) as I have earlier found, to order a new competition. The Act reflects no alternative to judicial review in this Court for review of the decision ordering a new competition.
[33] I am satisfied that Parliament did not contemplate that a decision to order a new competition would be non-reviewable in the circumstances before me. If it had intended such a result, I am satisfied that intention would have constituted an exception to the general principles of administrative law and it therefore would have been clearly spelled out. In the absence of explicit authority ousting this Court's general supervisory jurisdiction, I find that it has not been ousted.
e) Did the Commission, in arriving at the decision under review, exercise its authority for an improper purpose?
[34] Counsel for the applicants urged that the Commission allowed HRDC to effectively circumvent the appeals process provided in section 21 of the Act by "stonewalling" implementation of corrective measures lawfully prescribed by the Commission and ultimately leading the Commission to effectively rescind its corrective measures decisions and replace them by the order here under review. Counsel further urged that in allowing HRDC to put the Commission into the position where the Commission determined that it must move to a new competition, the Commission effectively exercised its authority to order a new competition for an improper purpose, that purpose being to avoid a stalemate with HRDC regarding the implementation of corrective measures lawfully ordered by the Commission.
[35] I disagree. I am satisfied that counsel for the applicants mischaracterizes the motivation of the Commission in arriving at the decision under review. When the decision under review was taken, the competition in question had been closed for almost two years. While in many circumstances it is unquestionably a role of an appeal board to consider whether the evidence before it shows that an eligibility list is based upon data which are out of date, notwithstanding the decision of the Court of Appeal in Canada (Attorney General) v. MacKintosh[7], I am satisfied that there are circumstances where that is a proper question for consideration by the Commission itself. The facts before me, which demonstrate that there was no prospect of an early resolution of the defects in the first competition, represent one such circumstance. While it is clear from MacKintosh that stale data is a proper consideration for an appeal board where the issue is before it, I do not read that decision as standing for anything more than that principle.
[36] I conclude that the Commission, in arriving at the decision here under review, exercised its authority for no improper purpose.
CONCLUSION
[37] In the result, notwithstanding the breach of the duty of fairness incumbent on the Commission that I have earlier referred to, this application for judicial review will be dismissed.
COSTS
[38] The respondents did not seek costs against the applicants. There will be no order as to costs.
__________________________________
J. F.C.C.
Ottawa, Ontario
November 19, 2002
SCHEDULE
3. (1) There is hereby established a Commission, to be called the Public Service Commission, consisting of a President and two other members to be appointed by the Governor in Council.
...
5. The Commission shall
(a) appoint or provide for the appointment of qualified persons to or from within the Public Service in accordance with the provisions and principles of this Act;
...
6. (1) The Commission may authorize a deputy head to exercise and perform, in such manner and subject to such terms and conditions as the Commission directs, any of the powers, functions and duties of the Commission under this Act, other than the powers, functions and duties of the Commission under sections 7.1, 21, 34, 34.4 and 34.5.
...
(5) Subject to subsection (6), a deputy head may authorize one or more persons under the jurisdiction of the deputy head or any other person to exercise and perform any of the powers, functions or duties of the deputy head under this Act including, subject to the approval of the Commission and in accordance with the authority granted by it under this section, any of the powers, functions and duties that the Commission has authorized the deputy head to exercise and perform.
...
8. Except as provided in this Act, the Commission has the exclusive right and authority to make appointments to or from within the Public Service of persons for whose appointment there is no authority in or under any other Act of Parliament.
...
3. (1) Est constituée la Commission de la fonction publique, composée de trois membres ou commissaires, dont le président, nommés par le gouverneur en conseil.
...
5. La Commission_:
a) conformément aux dispositions et principes énoncés dans la présente loi, nomme ou fait nommer à un poste de la fonction publique des personnes qualifiées, appartenant ou non à celle-ci;
...
6. (1) La Commission peut autoriser un administrateur général à exercer, selon les modalités qu'elle fixe, tous pouvoirs et fonctions que lui attribue la présente loi, sauf en ce qui concerne ceux prévus aux articles 7.1, 21, 34, 34.4 et 34.5.
...
(5) Sous réserve du paragraphe (6), un administrateur général peut autoriser des subordonnés ou toute autre personne à exercer l'un des pouvoirs et fonctions que lui confère la présente loi, y compris, mais avec l'approbation de la Commission et conformément à la délégation de pouvoirs accordée par celle-ci en vertu du présent article, l'un de ceux que la Commission l'a autorisé à exercer.
...
8. Sauf disposition contraire de la présente loi, la Commission a compétence exclusive pour nommer à des postes de la fonction publique des personnes, en faisant partie ou non, don't la nomination n'est régie par aucune autre loi fédérale.
...
10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.
(2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons.
...
21. (1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.
...
(3) Where a board established under subsection (1) or (1.1) determines that there was a defect in the process for the selection of a person for appointment under this Act, the Commission may take such measures as it considers necessary to remedy the defect.
(4) Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit.
...
10. (1) Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission, et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique.
(2) Pour l'application du paragraphe (1), la sélection au mérite peut, dans les circonstances déterminées par règlement de la Commission, être fondée sur des normes de compétence fixées par celle-ci plutôt que sur un examen comparatif des candidats.
L.R. (1985), ch. P-33, art. 10; 1992, ch. 54, art. 10.
...
21. (1) Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
...
(3) La Commission peut prendre toute mesure qu'elle juge indiquée pour remédier à toute irrégularité signalée par le comité relativement à la procédure de sélection.
(4) Une nomination, effective ou imminente, consécutive à une mesure visée au paragraphe (3) ne peut faire l'objet d'un appel conformément aux paragraphes (1) ou (1.1) qu'au motif que la mesure prise est contraire au principe de la sélection au mérite.
...
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1013-01
STYLE OF CAUSE: Wendy Shellie Morris and Linda Wilcox
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 31, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE GIBSON
APPEARANCES:
Mr. David Yazbeck FOR APPLICANTS
Mr. J. Sanderson Graham FOR RESPONDENTS
SOLICITORS OF RECORD:
Mr. David Yazbeck FOR APPLICANTS
Raven, Allen, Cameron & Ballantyne
Barristers and Solicitors
Ottawa, ON
Mr. J. Sanderson Graham FOR RESPONDENTS
Department of Justice
Civil Litigation Section
Ottawa, Ontario
[1] Applicant's Application Record, Volume 1, page 114.
[2] R.S.C. 1985, c. P-33, as amended.
[3] Applicants' Application Record, Volume 1, pages 82 and 83.
[4] [1989] 1 S.C.R. 342.
[5] (2001), 206 F.T.R. 13 (F.C.T.D.).
[6] [1999] 2 S.C.R. 817.
[7] (1991), 126 N.R. 389 (F.C.A.).