Date: 20040511
Docket: T-1889-03
Citation: 2004 FC 688
Ottawa, Ontario, this 11th day of May, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
MARIE WEERASOORIYA-EPPS
Applicant
and
THE ATTORNEY GENERAL OF CANADA and PAUL FITZNER
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Chairperson of the Public Service Commission Appeal Board (the "Appeal Board"), dated September 5, 2003, made pursuant to s. 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 ("PSEA"). In that decision, the applicant in this judicial review appealed the appointments to the position of Member, Patent Appeal Board with the Canadian Intellectual Property Office, pursuant to selection process, 2001-DUS-CIPO-CC-82 (03-DUS-00362). The applicant requests an order setting aside the decision of the Appeal Board and remitting her appeal back for reconsideration by a different Appeal Board.
BACKGROUND
[2] The applicant is currently an employee of Health Canada. She was a candidate in a job competition advertised by Industry Canada in April 2001 for a SG-PAT-07 indeterminate position as a Member of the Patent Appeal Board. At the time she applied for the SG-PAT-07 position she worked in the Chem II Group with the Chemical Division of the Canadian Intellection Property Office ("CIPO"), Industry Canada, Patents Branch and was classified as a Patent Examiner at the SG-PAT-04 group and level.
[3] In February 2002, eight candidates were "screened in", that is they were found to meet the education and experience qualifications for the position, and were invited to attend a written examination that was to assess their ability to communicate in writing. The candidates were advised that 60% was the required pass-mark. At the end of March and beginning of April 2002, all the candidates were informed of their examination results and advised that the next step in the selection process would be a one-hour oral interview. Five candidates, including the applicant, advanced to the oral interview stage.
[4] The oral interview was designed to assess the candidates' knowledge and their abilities. The selection board, comprised of three members, Peter Davis, André Lamarche and Jim Freed, took notes of the candidates' responses and then met afterwards to review the answers and reach consensus as to each candidate's score.
[5] Two candidates, one being the applicant, were at this point screened out from further consideration as they had failed to receive the required pass-mark of 56/112, or 50%, for "knowledge" and 42/70, or 60%, for "abilities". The selection board proceeded with the next stage for the three remaining candidates- reference checks. Following this, the selection board issued its final report showing that three candidates, Michael Gillen, John Cavar and Paul Fitzner, were qualified for the SG-PAT-07 position.
[6] On April 24, 2002 an eligibility list was established for this competition that contained two names, ranked first and second respectively: Michael Gillen and John Cavar. Michael Gillen was offered and accepted the position, effective May 1, 2002. All candidates were notified of the results of the competition and of their appeal rights under section 21 of the PSEA.
[7] The applicant and another candidate appealed this appointment, however following disclosure, the applicant withdrew her appeal. The other appellant's appeal was dismissed in October 2002.
[8] Sometime after June 2002, Mr. Gillen subsequently accepted another position with the Patent Appeal Board. Therefore, the SG-PAT-07 position became vacant. By letter dated March 4, 2003, Mr. Cavar was offered a SG-PAT-07 position due to his success as the 2nd ranked candidate in the competition.
[9] On March 28, 2003, the candidates who participated in the competition were informed by letter from CIPO that "Part II" of the eligibility list had been established for the same competition. The second eligibility list was dated March 28, 2003, and listed a third ranked candidate, Paul Fitzner. As a result, this second eligibility list was subject to a new appeal period.
[10] Pursuant to section 21 of the Public Service Employment Regulations, 2000, SOR/2000-80 (the "Regulations"), an appeal of this second eligibility list had to be brought by April 17, 2003. The applicant commenced an appeal pursuant to section 21 of the PSEA on April 15, 2003.
The Appeal Board's Decision
[11] The Appeal Board concluded at page 10 of its reasons that "...there was nothing inappropriate about the actions of the Selection Board or the issuance of a second eligibility list." The Appeal Board found that the merit principle had been respected, as the evidence established that the third ranked candidate was qualified for the position, and the second eligibility list was issued in accordance with section 17(1) of the PSEA.
ISSUES
[12] 1. Is this application moot?
If the application is not moot:
2. What is the appropriate standard of review in this case?
3. Did the Appeal Board err in law in finding that the PSEA authorized the Public Service Commission, or its delegate, to create a second eligibility list from a prior competition where the original eligibility list has been exhausted?
ANALYSIS
Mootness raised
[13] A preliminary issue that must be addressed in this judicial review is whether this application is now moot due to the expiry of the challenged, second eligibility list wherein Mr. Fitzner is ranked third in the competition. The respondent argues that this application is moot since the challenged list expired April 22, 2004, and that this indicates that there is no longer a live controversy between the parties. Even if this Court was to find that the Appeal Board erred and the delegate of the Commission acted contrary to the PSEA or Regulations, no further appointment can or will be made from the second eligibility list. The respondent submits that no purpose will be served by directing the Appeal Board to rehear this matter, and that the Court should not exercise its discretion to hear this application. If similar facts to this case arise in the future, the court at that time may decide the issue in the context of a live controversy.
[14] Clouding the issue somewhat is that Industry Canada has purported to extend the duration of the eligibility list until July 2004. Respondent's counsel conceded at the outset of the hearing that this was done in error, no appointment will be made from the list and the extension will be cancelled. The applicant's position is that a live controversy remained between the parties because of the purported extension of the list, whether or not it could serve as the basis for an appointment. In the alternative, the applicant argues that even if the Court were to find that the matter is now moot, I should exercise my discretion to make a decision on the merits of the controversy.
[15] In Boudreau v. Canada (Attorney General), [2003] F.C.J. No. 1801 (F.C.)(QL) at paragraph 58, Justice O'Keefe of this Court commented, "The expiry of an eligibility list cannot shield the process from review where the principle of selection by merit has been undermined," in circumstances where an appeal board dealing with a section 21 PSEA appeal placed a great deal of weight on the expiry of an eligibility list in reaching its conclusion that it could not intervene.
[16] In my opinion, this application has become moot due to the expiry of the eligibility list for this competition. In Boudreau, supra, the court was faced with a very different fact situation, where corrective measures had been ordered by a first appeal board and a second appeal board reviewing the measures taken was held to have erred in viewing that the expiry of an eligibility list meant it could not intervene where certain appointments may not have been made pursuant to the merit principle. In the present case, there is no appointment that was or can be made that did or could contravene the merit principle.
[17] Pursuant to section 10 of the Regulations, eligibility lists have a maximum validity period of two years, inclusive of any extensions. This second eligibility list is dated March 28, 2003, almost one year beyond the date of the first eligibility list and was valid until April 22, 2004. Two outcomes are possible in this judicial review. First, if the applicant's argument is accepted and the Appeal Board was incorrect in determining that the Public Service Commission was free to create a second eligibility list after the first list had been exhausted, then the validity of the first eligibility list with the expiry date, April 23, 2003 has long since expired, and even if the maximum two year validity period is permitted, this too has expired. No appointment has or could be made from the impugned, second list.
[18] Secondly, if this Court was to find that the Appeal Board was correct in finding that this supplementary eligibility list was validly made, then such determination would also encounter the fact that this second list was to have expired on April 22, 2004. The expiry date of this "Part II" list was listed as April 22, 2004, maintaining the two year limitation period, inclusive of any extensions, from the effective date of the original list. Once again, no appointment was or could be made pursuant to the impugned list. Moreover, under the legislative scheme of the PSEA and the Regulations, after an eligibility list has expired, a new competition must be conducted or other means of staffing a position used.
[19] Applying the first stage of the two-step analysis set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, I find that the matter between the parties is moot. In Borowski, supra, Justice Sopinka wrote at page 353:
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 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. 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.
[20] The tangible and concrete dispute between the parties in this case has disappeared and the issue of whether the second eligibility list was not authorized by the PSEA or the Regulations is now academic. The second branch of the analysis set out in Borowski, supra, involves a decision as to whether this court should exercise its discretion to hear and decide the judicial review, despite it being moot. The Supreme Court of Canada identified certain factors to consider when determining whether a moot case should still be heard: (1) the continued existence of an adversarial relationship between the parties, (2) whether hearing and deciding the case justified the expenditure of judicial resources, and (3) in the absence of a live controversy, would a decision of the court intrude on the function of the legislature.
[21] Having regard to the above factors, I do not find this an appropriate case wherein this Court should employ its discretion to decide an nonetheless moot application. The adversarial context is no longer apparent. If the Public Service Commission still has a vacancy in the position for which the applicant competed, it would have to hold another competition or other appropriate means of staffing the position. Furthermore, I can see no "collateral consequences" of the outcome of this case for the applicant: see Borowski, supra, at 359. As emphasized by the Federal Court of Appeal in Charest v. Canada (Attorney General), [1973] F.C. 1217 (C.A.), the purpose of a section 21 appeal is not to protect an appellant's rights, but rather to ensure that appointments that have been made or are about to be made to the public service, are based on selection according to merit. As stated by the Court at 1221:
Under section 10 of the Public Service Employment Act, "Appointments to ... the Public Service shall be based on selection according to merit ...". The holding of a competition is one means provided by the Act to attain the objective of selection by merit. However, it is important to remember that the purpose of section 21 conferring a right of appeal on candidates who were unsuccessful in a competition is also to ensure that the principle of selection by merit is observed. When an unsuccessful candidate exercises this right, he is not challenging the decision which has found him unqualified, he is, as section 21 indicates, appealing against the appointment which has been, or is about to be, made on the basis of the competition. If a right of appeal is created by section 21, this is not to protect the appellant's rights, it is to prevent an appointment being made contrary to the merit principle. As, in my view, this is what the legislator had in mind in enacting section 21, it seems clear that a Board appointed under this section is not acting in an irregular manner if, having found that a competition was held in circumstances such that there could be some doubt as to its fitness to determine the merit of candidates, it decides that no appointment should be made as a result of that competition. Such a decision may well cause some hardship to qualified candidates who have done nothing wrong. However, aside from the fact that it is not an undue hardship (since candidates can always enter another competition), one cannot admit, in order to avoid this hardship, that appointments be made in the Public Service without ensuring that the merit principle is observed.
[Emphasis added]
[22] In the present case, there is no appointment that has been made or that could be made pursuant to the impugned eligibility list in which Mr. Fitzner was ranked as the third qualified candidate. In these circumstances, the question of whether the Appeal Board erred in law in finding that the PSEA authorized the Public Service Commission or its delegate to create a second or amended eligibility list from a prior competition where the original eligibility list has been exhausted, should be left to be decided on another day, in the context of a live controversy between the parties. In closing, I note that the dismissal of this application for mootness is to be taken as no indicator as to the merit of the parties' arguments concerning the underlying legal issues.
[23] I see no reason to award costs to the respondent.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. Parties to bear their own costs.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1889-03
STYLE OF CAUSE: MARIE WEERASOORIYA-EPPS
AND
THE ATTORNEY GENERAL of CANADA
AND PAUL FITZNER
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 4, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: May 11, 2004
APPEARANCES:
Christopher Rootham FOR THE APPLICANT
J. Sanderson Graham FOR THE RESPONDENT
SOLICITORS OF RECORD:
CHRISTOPHER ROOTHAM FOR THE APPLICANT
Nelligan O'Brien Payne LLP
Ottawa, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario