Date: 20041104
Docket: T-736-04
Ottawa, Ontario, November 4th, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
MAUREEN A. HARQUAIL
Applicant
and
PUBLIC SERVICE COMMISSION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Public Service Commission (the "Commission") dated March 12, 2004 and made pursuant to subsection 33(3) of the Public Service Employment Act, R.S.C. 1985, c.P-33 in which the Commission denied a request for a leave of absence without pay to allow the applicant to seek nomination and stand as a candidate in the 2004 federal election.
[2] The issues to be determined are whether this application is moot, and if it is not, whether the Commission erred in denying the applicant's request for a leave of absence.
[3] This case also implicates two important constitutional values. Specifically, it involves a tension between a public servant's right to freedom of expression and his or her right to participate in the democratic process with the constitutional convention of political neutrality in the public service.
THE FACTS
[4] The applicant, Maureen Harquail, is currently employed as Counsel, Agent Supervision Unit, Federal Prosecution Service, Environmental and Regulatory Prosecutions in the Toronto Office of the Department of Justice. She has held this position since February 2003.
[5] On February 2, 2004, the applicant submitted a written request to the Commission for an unpaid leave of absence pursuant to subsection 33(3) of the Public Service Employment Act in order to seek nomination as a candidate for the riding of St. Catharines, Ontario in the 2004 federal election.
[6] Subsection 33(3) of the Public Service Employment Act provides that the Commission may grant an employee a leave of absence without pay to seek nomination as a candidate and to be a candidate for election if the Commission believes that the usefulness of the employee to the public service would not be impaired by reason of that employee having been a candidate.
[7] The applicant's superiors at the Department of Justice supported her request for a leave of absence. On February 13, 2004, the Deputy Minister of Justice, Morris Rosenberg, wrote to the Commission to recommend that the leave of absence be granted. In Mr. Rosenberg's view, the applicant did not exercise considerable power in a very public and visible way over the people in the riding of St. Catharines and, consequently, there was no reason to deny her request for a leave of absence. Attached to Mr. Rosenberg's letter was the applicant's job description, an organizational chart and briefing notes prepared for the Deputy Minister.
[8] During the months of February and March, there were several other correspondences among the applicant, the Department of Justice and the Commission. On February 18, 2004, a Commission staff member e-mailed the applicant's superior to request clarification regarding some of the responsibilities listed in the applicant's job description. In particular, the staff member asked what authority the applicant had over agents, if she made decisions as to whether to proceed with a prosecution and whether she was involved in complex, important or politically sensitive prosecutions. In his response, the superior indicated that the applicant did not have the authority to hire or fire agents, but that she did make decisions as to whether to proceed with prosecutions and that she could (emphasis added by the Court) be required to act as lead counsel in important, complex or politically sensitive prosecutions, although she had not done so to date.
[9] On March 1, 2004, the applicant wrote to the Commission to indicate that she urgently required a decision because she would have to commence campaign activities by March 5, 2004 in order to have a chance of successfully winning the nomination on March 30, 2004.
THE DECISION
[10] By letter dated March 12, 2004, the Commission advised the applicant that her request for a leave of absence was denied. The Commission provided the following reasons for its decision:
In light of the duties of your position of Crown counsel in the Federal Prosecution Services in the Ontario Regional Office, the PSC has determined that your usefulness to the Public Service could be impaired by reason of your having been a candidate in an election. This decision is based on the degree of authority you have to prosecute individuals, including directing agents under your supervision to do so, as well as the degree of visibility your position has.
[11] The Commission's official record of the decision, which is dated March 10, 2004, states that "[t]he request is denied due to her occupying a position with significant public visibility and degree of authority."
[12] As a result of this negative decision, the applicant filed a notice of application for judicial review on April 8, 2004. She did not seek nomination as a candidate and the federal election took place on June 28, 2004.
RELEVANT LEGISLATION
[13] The relevant section of the Public Service Employment Act, R.S.C. 1985, c.P-33 is as follows:
| 33. (1) No deputy head and, except as authorized under this section, no employee, shall (a) engage in work for or against a candidate; (b) engage in work for or against a political party; or (c) be a candidate.
Excepted activities (2) A person does not contravene subsection (1) by reason only of attending a political meeting or contributing money for the funds of a candidate or of a political party.
Leave of absence (3) Notwithstanding any other Act, on application made to the Commission by an employee, the Commission may, if it is of the opinion that the usefulness to the Public Service of the employee in the position the employee then occupies would not be impaired by reason of that employee having been a candidate, grant to the employee leave of absence without pay to seek nomination as a candidate and to be a candidate for election, for a period ending on the day on which the results of the election are officially declared or on such earlier day as may be requested by the employee if the employee has ceased to be a candidate.
Notice
(4) Forthwith on granting any leave of absence under subsection (3), the Commission shall cause notice of its action to be published in the Canada Gazette. Effect of election (5) An employee who is declared elected as a member of the House of Commons, of the legislature of a province, of the Council of the Northwest Territories or of the Legislative Assembly of Yukon or Nunavut ceases to be an employee on that declaration. |
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33. (1) Il est interdit à tout administrateur général et, sauf autorisation par le présent article, à tout fonctionnaire_: a) de travailler pour ou contre un candidat; b) de travailler pour ou contre un parti politique; c) d'être candidat.
Activités autorisées
(2) L'assistance à une réunion politique ou la contribution financière à la caisse d'un candidat ou d'un parti politique ne constituent pas à elles seules des manquements au paragraphe (1).
Congé
(3) Le fonctionnaire désireux de se porter ou d'être choisi comme candidat peut demander à la Commission un congé non payé pour une période se terminant le jour de la proclamation des résultats de l'élection ou, à sa demande, à toute date antérieure marquant la fin de sa candidature. Nonobstant toute autre loi, la Commission peut accorder un tel congé si elle estime que la candidature du fonctionnaire ne nuira pas par la suite à son efficacité, pour la fonction publique, dans le poste qu'il occupe alors.
Avis
(4) Dès qu'elle a accordé le congé prévu au paragraphe (3), la Commission fait publier un avis de sa décision dans la Gazette du Canada.
Effet de l'élection
(5) Le fonctionnaire déclaré élu à une élection mentionnée à l'article 32 perd dès lors sa qualité de fonctionnaire.
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[14] Paragraph 33(1)(a) of the Public Service Employment Act was struck down by the Supreme Court of Canada in Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69 (except as it applies to a "deputy head"). Subsection 33(3), however, remains in effect.
THE ISSUES
[15] The issues to be determined are:
1. should the application be dismissed as moot?
2. if the application is not moot:
(a) what is the applicable standard of review for the Commission's decision?
(b) did the Commission err in denying the applicant's request for an unpaid leave of absence to seek a nomination as a candidate for political office?
ANALYSIS
Issue No. 1
Is the application moot?
[16] The respondent submits that the application should be dismissed as moot and that the Court should not consider the case on its merits. The respondent states that since the deadline for nominations has passed and since the federal election has taken place, the issue of whether the applicant should be granted a leave of absence to seek nomination as a candidate is no longer relevant.
[17] The test for mootness, as set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, is two-fold. First, it is necessary to consider whether the required tangible and concrete dispute between the parties has disappeared. Second, even if the dispute has disappeared, the Court must decide whether to exercise its discretion to hear the case in any event.
[18] With respect to the first branch of the test, there is clearly no longer a concrete dispute or live controversy between the parties. The applicant's purpose for requesting a leave of absence was to allow her to seek a nomination for candidacy and possibly to run for office in the 2004 federal election. Since the federal election has passed, the applicant no longer requires a leave of absence and the raison d'être of this litigation has disappeared.
[19] Although no live controversy exists between the parties, the Court can still exercise its discretion to hear the case in the appropriate circumstances. Justice Sopinka, in Borowski, supra, identified three rationales that a reviewing court should consider in exercising such a discretion. Specifically, the Court should examine whether an adversarial context prevails, whether the decision under review will have some practical effect on the rights of the parties and will not be a waste of judicial resource, and finally, whether a judgment by the Court will be seen as an intrusion into the legislative branch of government.
[20] In the present case, I accept that an adversarial context prevails. Both the Supreme Court and Federal Court of Appeal have held that an adversarial context exists where the case is vigorously and fully argued by the parties. See New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 and Lavoie v. Canada (Minister of the Environment) (2002), 291 N.R. 282. The parties in this application have maintained an adversarial stance and have argued their positions with determination, particularly the applicant. I would note, however, that in contrast to many of the decisions in which the Court has exercised its jurisdiction to hear a moot case, there are no collateral consequences that would affect the applicant in these circumstances.
[21] With regard to judicial economy, I am not satisfied that the circumstances of this case warrant the expenditure of scarce judicial resources. The relief sought by the applicant would have no practical effect on her rights since she no longer requires a leave of absence for the 2004 federal election. Furthermore, it is unlikely that a decision by the Court at this juncture would assist the applicant in a future request for a leave of absence since her circumstances, including her position and responsibilities, could very well have changed by that time.
[22] In some instances, the Court will choose to expend judicial resources to hear a case that is of a recurring nature, but evasive of review. The present application is certainly evasive of review because of the strict timelines involved. The founding meeting of the riding association took place on January 30, 2004, the applicant applied for a leave of absence on February 2, 2004 and the nomination meeting took place on March 30, 2004. Since the Commission communicated its decision to deny leave on March 12, 2004, the applicant had only 18 days to proceed with a judicial review before the nomination meeting. That said, I am not satisfied that future cases involving a request for a leave of absence to seek nomination will be equally evasive of review. For example, there is nothing to prevent an employee from requesting a leave of absence before an official call for nominations is made. This could allow sufficient time for a judicial review from a negative decision, particularly if an expedited hearing was requested. As directed by Justice Sopinka in Borowski, supra, "it is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved" (emphasis added).
[23] The Court may also exercise its discretion if an application raises issues which engage the national or public interest. Although important values are implicated in this case, the decision is very factual and applies discretely to the applicant and does not engage the public interest in a practical sense. Given that a decision by the Court would have no practical effect for the applicant or for the public, I conclude that judicial resources should not be expended to hear the present application.
[24] The third rationale identified in Borowski, supra, is the need for the Court to be aware of its proper law-making function relative to the legislature. In my view, it is not the proper role of this Court to render a decision that has no practical effect on the rights of the parties and that is purely academic in nature. See for example, Moses v. Canada, [2003] F.C.J. No. 1835 (F.C.) at para. 20 and Bago v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1565 (F.C.T.D.) at para. 15.
[25] Based on the foregoing, I conclude that the application is moot and that there are no special circumstances that warrant the Court exercising its discretion to decide the case on its merits. As a result, the application will be dismissed.
[26] However, even though I have concluded that the case is moot, I will briefly address the merits of the case should such an analysis be required on an appeal.
Issue No. 2
(a) What is the applicable standard of review for the Commission's decision
[27] The appropriate standard of review is determined by reference to the functional and pragmatic approach as described in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. The first factor to consider in this analysis is the presence or absence of a privative clause or statutory right of appeal. Subsection 33(3) of the Public Service Employment Act does not contain a privative clause, nor does it provide for a statutory right of appeal. Accordingly, this factor is neutral.
[28] The second factor to consider is whether the decision-making body has greater expertise than the reviewing court with respect to the question under review. In the present case, the Commission has some expertise relative to the Court because it is responsible for the supervision of the public service, it is charged with the on-going implementation of the Public Service Employment Act and it has experience in the application of subsection 33(3). This militates in favour of deference. That said, some of the considerations that the Commission is required to make under subsection 33(3) fall within the competence and particular expertise of the Court. For example, the decision to grant a leave of absence involves the balancing of constitutional values, namely, freedom of expression and political participation with the constitutional convention of political neutrality. This is the type of assessment that falls squarely within the expertise of the Court. Overall, this factor militates in favour of some deference.
[29] The third factor of the analysis involves a consideration of the purpose of the Act, as well as the particular provision at issue. The Public Service Employment Act aims to effectively manage the public service and protect its integrity. Similarly, the purpose of subsection 33(3) is to preserve the integrity and neutrality of the public service. As a result, the decision to grant a leave of absence involves some balancing of policy issues. Moreover, the decision is highly discretionary. These factors signal that greater deference should be accorded to the Commission. However, in favour of a stricter standard, the decision in question focuses narrowly on the applicant's rights and interests as opposed to balancing the interests of various constituents or mediating among them. Consequently, this factor yields mixed results.
[30] The fourth factor is the nature of the problem in question. The decision in this case was fact-intensive because the Commission was required to determine the scope of the applicant's duties and assess whether, as a result of her responsibilities, her usefulness to the public service could be impaired. That said, the Commission did not hear viva voce evidence, it did not assess credibility, and it did not undertake its own effort to collect information relating to the applicant's duties - all of which represent the usual reasons for according greater deference to factual decisions. Accordingly, this factor is somewhat ambivalent.
[31] Based on the foregoing analysis, I conclude that the appropriate standard of review is reasonableness simpliciter.
Issue No. 2
(b) Did the Commission err in denying the applicant's request for an unpaid leave of absence to seek a nomination as a candidate for political office
[32] A decision that is reviewed on a reasonableness simpliciter standard should only be interfered with if it is not supported by any reasons that can stand up to a somewhat probing examination. Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.
[33] I have reviewed both the recommendation that formed the basis of the Commission's decision as well as the information that was provided by the Department of Justice to the Commission respecting the applicant's responsibilities. In my view, the Commission's reasons cannot stand up to a somewhat probing examination and are not tenable based on the evidence. Its decision, therefore, is unreasonable.
[34] The Commission submits that the inquiry into whether an employee's usefulness to the public service could be impaired is forward looking. Accordingly, it is not relevant what an employee has done in the past, but rather what she may be required to do in her position in the future. In its view, the information provided by the applicant's superior which indicated that the applicant could be required to act as lead counsel in important, complex or politically sensitive prosecutions was sufficient to conclude that she occupies a position with significant public visibility.
[35] Unfortunately, the Commission adopted an overly simplistic approach in its analysis. I agree that the inquiry must be forward looking since the concern is whether the employee's usefulness could be impaired once she returns from leave. However, it is not reasonable for the Commission to consider every remote possible responsibility that might fall within the scope of the employee's position at some future point in time. It is only reasonable for the Commission to conduct its inquiry into the applicant's responsibilities within some realistic context. In particular, since the applicant would have returned to her job within a few months had she not been successful in the election, the Commission should have considered what responsibilities the applicant was likely to have in the near future. This inquiry would have provided a more realistic picture of whether her usefulness to the public service could be impaired upon her return. In deciding what responsibilities the applicant was likely to have in the near future, the Commission might have considered, among other things, the types of cases that the applicant was currently responsible for as well as how long she had been in her position.
[36] In my view, it was not sufficient for the Commission to base its conclusion that the applicant occupied a position with significant public visibility on a mere statement that she "could be" required to act as lead counsel in important, complex or politically sensitive prosecutions. Rather, the Commission should have conducted a more comprehensive inquiry to determine whether it was likely that the applicant would be responsible for cases of that nature in the near future.
[37] The Commission also submits that it was not bound by the recommendation of the Department of Justice in making its determination, nor did it have a legal requirement to consult the Department. There is no doubt that the Commission has the sole authority to grant a leave of absence in such circumstances. Nonetheless, in my opinion, it should not have set aside the recommendation of the Deputy Minister lightly. The applicant's superiors at the Department of Justice are in the best position to know the scope of the applicant's responsibilities and to evaluate how visible her position was and is likely to be in the near future. Given this special vantage point, it seems only reasonable that the Commission would not set aside the recommendation of the Deputy Minister without conducting its own meaningful inquiry into the responsibilities of the applicant.
[38] Based on the foregoing, I am satisfied that the Commission's reasons for denying the applicant's leave of absence cannot stand up to a somewhat probing examination and that its decision is unreasonable. If the application were not moot, I would send the matter back to the Commission for a redetermination.
CONCLUSION
[39] The application is moot and will be dismissed with no order as to costs.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-736-04
STYLE OF CAUSE: Maureen A. Harquail v. Public Service Commission
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 27, 2004
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Kelen
APPEARANCES:
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FOR THE APPLICANT |
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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FOR THE APPLICANT |
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FOR THE RESPONDENT |
FEDERAL COURT
Date: 20041104
Docket: T-736-04
BETWEEN:
MAUREEN A. HARQUAIL
Applicant
and
PUBLIC SERVICE COMMISSION
Respondent
REASONS FOR ORDER
AND ORDER