Ottawa, Ontario, February 6, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
and
OF CANADA
REASONS FOR ORDER AND ORDER
[1] On June 3, 2005, the Public Service Commission (PSC), in a "courtesy" letter, refused Mr. Vogan's request to conduct an investigation under section 7.1 of the Public Service Employment Act, R.S. 1985, c. P-33 (PSEA). Mr. Vogan claims that the "decision" is invalid, unlawful and should be set aside. I have concluded that the decision should stand.
BACKGROUND
[2] Mr. Vogan is a self-represented litigant. He made an admirable attempt to comply with the requirements of the Federal Courts Rules, SOR/98-106 (the Rules) in producing the requisite documentation for this application. In spite of his efforts, the contents of his record and his affidavit and attachments thereto were disjointed and largely misconstrued.
[3] The certified record, after duplication was eliminated, was not extensive. The background information depicted here is a composite of information from the record and representations at the hearing of the application. It may not be totally accurate. In the final analysis, my determination does not turn on it. Rather, it turns on the circumstances of Mr. Vogan's request of February 10, 2005. Nonetheless, a brief account of the history behind Mr. Vogan's request provides context.
[4] Mr. Vogan was employed by the Department of National Defence (DND) at CFB Kingston as a trade helper, on a specified period basis, beginning in 1980. He had a number of term contracts. While so employed, he obtained his certification as a mason. As nearly as I can gather, his employment at the base continued until approximately November 1993.
[5] In the early 1990s, Mr. Vogan initiated three separate complaints related to his employment. The first concerned the appointment, in 1993, of one Mr. Silva to a position as a mason. Mr. Vogan's complaint alleged a violation of the merit principle and was investigated by the PSC. Although a number of anomalies in the staffing practices were discovered, his complaint was determined to be unfounded.
[6] His second complaint was regarding the selection process in relation to a position for which Mr. Vogan was in competition with one Mr. Norgard. That complaint was also investigated by the PSC and was determined to be unfounded.
[7] The third complaint related to a Mr. Johnson and Mr. Johnson's acquisition of provincial certification as a plasterer. The certificate was allegedly obtained as a result of a base Major's representation that Mr. Johnson had acquired, during his work as a painter, sufficient experience in plastering to qualify for certification. Mr. Vogan disputes the certification on the basis that plastering is the work of a mason, not a painter, and the certification was and is therefore, in his view, fraudulent. Mr. Vogan pursued various avenues to contest this matter but none of them were pursuant to the PSEA. In other words, February 10, 2005, was Mr. Vogan's first request for a PSC investigation regarding Mr. Johnson.
[8] The record discloses that the PSC received a request from Mr. Vogan on October 14, 1994, to review the earlier investigations in relation to Messrs. Silva and Norgard. The PSC response, dated November 4, 1994, indicates with respect to Mr. Silva, that the investigation resulted in a finding that "merit had not been compromised". At the time the case report was issued, Mr. Vogan had been asked for comments but did not provide any. The file was closed in September 1993. Regarding Mr. Norgard, the investigation revealed that although Mr. Vogan placed second on the eligibility list, he received a longer term of employment than the successful candidate. The complaint was unfounded and by the time the investigation was completed, the eligibility list had expired and no further appointments were made. The file was closed in February 1994.
[9] On November 20, 1996, Mr. Vogan again asked the PSC to review the staffing practises of the DND with respect to Mr. Silva. By correspondence dated December 5, 1996, the PSC responded. The pertinent portion of that response reads:
As best as I can ascertain from your letter, the matters you raise concerning Mr. A. Silva occurred in 1992 and 1993. In June, 1995, you filed a complaint with the Public Service Commission in respect of Mr. Silva's qualifications. Your allegations were investigated and were determined to be unfounded. You were advised of this in August, 1995. If there were other matters or alleged staffing irregularities at that time, it was incumbent on you to raise them then. The file was closed in September, 1995. Since that time we have not had any communications from you. It is the Public Service Commission's policy to investigate allegations of matters or incidents that have taken place no longer than a year before a complaint is filed. Therefore we will take no further action with respect to Mr. Silva's appointment.
[10] This brings me to Mr. Vogan's February 10, 2005 request wherein he asked the PSC to review his complaints regarding Mr. Silva and Mr. Johnson. I reiterate that this request of the PSC in relation to Mr. Johnson was a first, despite the fact that approximately 12 years had transpired since the impugned action. Mr. Vogan takes no issue with the results of the "Norgard" investigation. Mr. Norgard is now deceased.
[11] Mr. Vogan, in support of his request, recited the circumstances surrounding the incidents, referred to what he considered to be the appropriate sections of the PSEA and referred the PSC to a Federal Court decision to support his position that "there are no time lines established especially when it comes to merit by qualifications for the established position". In light of this authority, he urged the PSC to fulfill its duty to re-open the investigation.
THE DECISION
[12] The PSC responded to Mr. Vogan's request by correspondence, dated June 3, 2005, and characterized as a "courtesy letter". The correspondence informed Mr. Vogan that his request had been reviewed, in part, on the basis of the PSC "Policy on the conditions governing the decision to investigate pursuant to section 7.1 of the [PSEA]", a copy of which had been previously sent to Mr. Vogan. The PSC stated that the request did not meet the criteria set out in that policy, in particular, the three to six month time limit in which a matter must be raised. The letter further stated that Mr. Vogan's 1994 and 1995 requests to have the matter reopened were denied. In response to Mr. Vogan's reliance on the Federal Court decision, the PSC noted that the authority dealt with applications under section 12.1 of the PSEA, not section 7.1, and in any event, [on the basis of a subsequent Federal Court of Appeal case, Davies v. Canada (Attorney General) (2005), 330 N.R. 283 , 25 Admin. L.R. (4th) 74 (F.C.A.)] an investigation under section 12.1 must be initiated before the closing of the competition. The PSC denied Mr. Vogan's request.
THE ARGUMENTS
[13] Mr. Vogan alleges several errors on the part of the PSC. Most, if not all, relate to the merits of the original complaint and his ongoing dissatisfaction with the outcome of the original investigation. He claims that it was incumbent on the PSC to address the issues of "fraud and time limits" as he requested. Further, it ought to have considered the request under section 12.1 of the PSEA.
[14] The respondent argues that the "courtesy" response does not constitute a decision that can be judicially reviewed. On its face, the response is identified as a courtesy letter. Mr. Vogan had made previous requests to reopen the investigation and in 1996, the PSC President advised that there would be no further action taken with respect to the appointment in the 93-DND-ONT-342 competition [Mr. Silva]. Thus, the respondent maintains that the correspondence, dated December 14, 1996, constitutes the decision of the PSC in this matter and it is that decision that ought to have been challenged on judicial review.
[15] Alternatively, if the decision is reviewable, it is subject to a standard of review of reasonableness. In order to clarify its discretionary power under section 7.1 of the PSEA, the PSC has established a policy outlining criteria upon which it may decide to investigate pursuant to this provision. This policy imposes a limitation period of three months, that may be extended to six months, from the date of an alleged defect to investigate. The imposition of limitation periods is not an improper fettering of the PSC's discretion. More importantly, in this case, the refusal to reopen an investigation that was concluded 12 years ago is a reasonable exercise of the PSC's discretion. Finally, although Mr. Vogan argued that his request should have been considered under section 12.1, his request was made under section 7.1 only.
THE DECISION UNDER REVIEW
[16] Leaving aside for the moment the issue of whether the PSC correspondence, dated June 3, 2005, constitutes a decision which is subject to judicial review, Mr. Vogan requests that I conduct my review of the decision as if the decision had been made on the basis of both sections 7.1 and 12.1 of the PSEA. He maintains that the Court has the power to consolidate proceedings and order that they be heard together and at the same time.
[17] Mr. Vogan concedes that his request for investigation was made under section 7.1. At the hearing, it became evident that, after receiving the PSC's decision, Mr. Vogan, on July 5th, requested that the PSC reconsider his request under section 12.1. By correspondence, dated September 15, 2005, the Jurisdiction and Case Management Division of the PSC informed him of its position as follows:
This is further to our letter dated July 6, 2005 concerning your request for reconsideration of the decision not to reopen an investigation that had been conducted by the Public Service Commission (PSC) into a competition held back in 1993. You informed us that you have filed a judicial review with the Federal Court on this matter. This is the appropriate recourse mechanism in the circumstances and the Commission will not intervene when the matters raised are before the Federal Court.
Consequently, the Investigations Branch will not proceed further with your request and we have closed our file accordingly.
[18] The respondent argues that it is inappropriate to review "both" decisions because judicial review must be confined to the record that was before the decision-maker at the time that the decision was made. I agree. However, it is difficult to conceive that anything could be added to the record in relation to the complaint concerning Mr. Johnson, which the PSC had never investigated because Mr. Vogan had never requested an investigation (prior to February 10, 2005).
[19] Of more significance, in my view, is Rule 302 of the Rules, which mandates that an application for judicial review shall be limited to a single order in respect of which relief is sought. The question then becomes whether the decision is based only on section 7.1, or is based on both sections 7.1 and 12.1 of the PSEA. If it is the former, I cannot grant Mr. Vogan's request; yet, if it is the latter, I can.
[20] When regard is had to the June 3rd decision, it is evident to me that the decision-maker addressed both sections 7.1 and 12.1 in response to Mr. Vogan's application. The respondent is correct that, on the form, Mr. Vogan checked only the box referring to section 7.1. However, the substance of his submissions referred to both sections 7.1 and 12.1 and the PSC responded in kind and addressed both sections of the PSEA when it refused Mr. Vogan's request. Thus, it can be said, in this particular situation, that this judicial review relates to one decision that is based upon two discrete sections of the PSEA. Accordingly, my review will encompass, as Mr. Vogan asks, the decision based on both sections 7.1 and 12.1 of the PSEA. In my view, this is also consistent with the September 15th PSC response to Mr. Vogan's July 5th request.
THE DECISION REGARDING QUALIFICATIONS
[21] The effect of my determination is that Mr. Vogan's request for investigation into the qualifications of Mr. Johnson and Mr. Silva falls to be determined in accordance with the Davies decision which, in my view, is determinative. The comments of the Chief Justice of the Federal Court of Appeal in Davies, specifically at paragraph 40 are dispositive. Mr. Vogan's request for an investigation regarding the qualifications of Mr. Johnson or Mr. Silva cannot be granted. The decision of the PSC is correct and therefore the applicable standard of review is immaterial.
THE DECISION REGARDING MERIT
[22] This leaves only the decision with respect to Mr. Vogan's request that the investigation into Mr. Silva's appointment (alleged contravention of the merit principle) to be reviewed. I now return to the question of whether the PSC correspondence of June 3, 2005 constitutes a "decision" that is subject to judicial review.
[23] As noted previously, the PSC characterized its response to Mr. Vogan as a "courtesy" response. I find the PSC's position persuasive. Mr. Vogan had not submitted any comments regarding the earlier case report of the PSC when invited to do so; he did not seek judicial review of the PSC's original decision; he did not seek judicial review of the 1994 decision refusing his request to reopen the investigation; he did not seek judicial review of the 1995 decision that determined his allegations to be unfounded; and he did not seek judicial review of the 1996 decision that expressly stated that the PSC "will take no further action with respect to Mr. Silva's appointment".
[24] In Besner v. Canada (Public Service Commission), [2000] F.C.J. No. 1684 (T.D.), Mr. Justice Blais determined that a case cannot stay alive forever, just by exchange of letters by parties, when a previous decision indicates that the file would be closed. A similar result was reached in Hughes v. Canada(Customs and Revenue Agency) (2004), 22 Admin. L.R. (4th) 49 (F.C.) by Mr. Justice Campbell. In both instances, the Court ruled that the responses to the requests of the respective applicants were no more than courtesy letters and not subject to judicial review.
[25] I am inclined to think that a similar ruling should be made in this case. However, I am troubled by two pieces of PSC correspondence that were forwarded to Mr. Vogan between the time his request was made and the date upon which the "courtesy letter" was sent. The first, dated February 10, 2005, was from the Recourse Branch, Jurisdiction Unit. It acknowledged receipt of Mr. Vogan's correspondence and stated:
Over the next few weeks, your request will be reviewed to determine its acceptability on the basis of the enclosed Public Service Commission's "Policy on the conditions governing the decision to investigate pursuant to Section 7.1 of the Public Service Employment Act".
Once this review is completed, you will be informed in writing of the decision as to whether an investigation will be conducted in the present case.
[26] The next correspondence was forwarded from the office of the President, Public Service Commission on February 18, 2005. It, too, acknowledged receipt of Mr. Vogan's letter and informed him that:
In accordance with normal procedure, the Jurisdiction Unit of the Recourse Branch will review the material you provided and determine whether or not further investigation is warranted. You should note that any decision in this regard will be guided by the PSC's "Policy on the conditions governing the decision to investigate pursuant to Section 7.1 of the Public Service Employment Act". I am advised that a copy of this Policy was sent to you by the Registrar's Office.
Let me assure you that your request for investigation will be given all due consideration. Mr. Maurice Gohier, Acting Registrar of the Recourse Branch, will be contacting you in the near future to inform you of the PSC's decision.
[27] While it seems to me that the position of the PSC regarding any inquiry into Mr. Silva's appointment was made clear to Mr. Vogan in the PSC correspondence of December 5, 1996, and that a review of the policy should lead him to conclude that his request would be denied, at the same time, I am concerned that the PSC may have created a misleading impression that it was willing to consider Mr. Vogan's request. This is so because of the wording used by the PSC in its correspondence. The manner in which the two pieces of correspondence were drafted is unfortunate. While the first letter refers to a review of the request to determine its acceptability, both letters refer to a "decision". In the circumstances, I consider, without definitely deciding the issue, that the prudent course of action is to proceed as if the June 3, 2005 correspondence is a "decision" that is subject to judicial review.
[28] The issues that arise are narrow. The first task is to determine the applicable standard of review and the second is to determine whether the "decision" withstands the scrutiny of that standard.
[29] Section 7.1 of the PSEA provides that the Commission may conduct investigations and audits on any matter within its jurisdiction. It is not mandated to do so. The determination is one that involves the exercise of discretion. The question is how much deference is to be afforded to the decision-maker. In Mercer v. Canada(Attorney General) 2005 FC 1567, Mr. Justice de Montigny determined that the applicable standard of review regarding a PSC decision whether to investigate a complaint is that of reasonableness simpliciter. I agree with Justice de Montigny's analysis and his conclusion. However, here, the question is not whether to conduct an investigation, it is whether to reopen an investigation that has been completed and closed, in this case, four times.
[30] In Sketchley v. Canada(Attorney General) 2005 FCA 404, the Federal Court of Appeal, at paragraph 50, cautioned that the factors in the pragmatic and functional analysis must be applied anew with respect to each decision. Hence, my consideration of the four factors of the pragmatic and functional analysis is with respect to the specific situation that is before me.
[31] There is, in this case, no privative clause and no statutory right of appeal. This is a neutral factor. The decision-maker has considerable expertise in the administration of the PSEA including decisions as to whether an investigation is warranted. In and of itself, this points to deference. It is all the more so when the decision is whether to reopen an investigation. This militates in favour of a high level of deference.
[32] The primary purpose of the legislation is to ensure that selection and appointment to the public service is made in accordance with the merit principle: Buttar v. Canada(Attorney General) (2000), 186 D.L.R. (4th) 101; 254 N.R. 368 (F.C.A.). The purpose of an investigation under section 7.1 is to provide a recommendation to the PSC to enable it to take any corrective action that it considers appropriate. The power to provide such recommendation is discretionary rather than mandatory: Mercer. The matter before me attracts deference in circumstances where an investigation (in which an applicant has had a full right of participation) has occurred and the request is one that seeks to reopen that investigation. The level of deference to be shown is high.
[33] Finally, the question is whether the strength of the facts presented by the applicant is sufficient to warrant the reopening of an investigation that has been concluded. I consider the nature of this question to be one to be of fact, which attracts a high level of deference.
[34] Balancing these factors, in the unique and particular circumstances of this case, leads me to conclude that the highly deferential standard of review of patent unreasonableness applies. To be patently unreasonable, a decision must be clearly irrational or so flawed that no amount of curial deference can justify letting it stand: Canadian Union of Public Employees (C.U.P.E.) v. Ontario(Minister of Labour), [2003] 1 S.C.R. 539; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.
[35] The decision of the PSC is not patently unreasonable. The Registrar's correspondence indicates that Mr. Vogan's request was reviewed, in part, on the basis of the policy. He did not meet the criteria identified in the policy. Additionally, regard was had to the previous requests to reopen that had been denied. Finally, the decision-maker determined that time was a factor in the circumstances. Having regard to the contents of the record - excluding pages 56 through 105 of Mr. Vogan's affidavit to which he attached documentation that he "saved for the judicial review" but was not before the PSC - I am unable to conclude that the decision was clearly irrational. Moreover, should I be wrong in my determination of the applicable standard of review, I conclude, in any event, that the decision withstands the scrutiny of the more stringent standard of reasonableness.
[36] Mr. Vogan's quarrel is with the merits of Mr. Silva's appointment, a matter that was investigated some 12 years, or more, ago. Mr. Vogan had the opportunity to participate fully in that process and he did. He did not comment on the investigation report although he was invited to do so. He thrice requested that the investigation be reopened. Twice he was refused and once, his complaints were determined to be unfounded. On none of those occasions did he seek judicial review of the decision. It was incumbent upon him to act diligently at the applicable time and exert the rights that were available to him. Moreover, even if I were to assume, and I do not, that Mr. Vogan is completely correct in all that he claims, his plea for an investigation now, some 12 years after the fact, is an exercise in futility because there is no remedy available.
[37] The application for judicial review must be dismissed. The respondent has requested costs which I will award based on the lower end of Column III of Tariff B.
ORDER
THIS COURT ORDERS THAT the application for judicial review is dismissed with costs to be paid by the applicant to the respondent, such costs to be assessed on the lower end of Column III of Tariff B.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1156-05
STYLE OF CAUSE: DONALD J. VOGAN
v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 31, 2006
REASONS FOR ORDER: LAYDEN-STEVENSON J.
APPEARANCES:
| Mr. Donald J. Vogan
|
On his own behalf
|
| Ms. Elizabeth Kikuchi |
|
SOLICITORS OF RECORD:
| Mr. Donald J. Vogan Battersea, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |