Date: 20000105
Docket: T-368-99
OTTAWA, ONTARIO, JANUARY 5, 2000
PRESENT: MR. JUSTICE LUTFY
Between:
JACQUES SAVOIE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
CONSIDERING the application for judicial review dated March 18, 1999, for an order setting aside the Appeal Board decision dated February 23, 1999, and communicated in writing with reasons on February 25, 1999, and referring the matter back to a new appeal board panel for redetermination of the merits;
CONSIDERING the written submissions of the parties and the hearing held on December 8, 1999;
THE COURT ORDERS THAT:
1. The application for judicial review is allowed.
2. The Appeal Board decision dated February 23, 1999, and communicated in writing on February 25, 1999, is set aside, and the applicant"s appeal is referred back to a newly constituted appeal board panel for rehearing and redetermination.
3. There will be no order as to costs.
Allan Lutfy
J.F.C.C.
Certified true translation
Peter Douglas
Date: 20000105
Docket: T-368-99
BETWEEN:
JACQUES SAVOIE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The applicant was an unsuccessful candidate in a competition to select a legal officer in the Department of Finance. Pursuant to section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33, he appealed the determination made by the selection committee. The Appeal Board Chair dismissed the appeal simultaneously with his decisions that the allegations in support of the appeal were insufficiently detailed and that there was no valid reason to adjourn the hearing. This is an application for judicial review of the decision to dismiss the applicant"s appeal.
[2] On November 18, 1998, when the applicant filed his appeal, he indicated that the grounds of the appeal would be determined subsequent to disclosure.
[3] On December 30, 1998, the hearing of the applicant"s appeal was scheduled for February 23, 1999.
[4] On February 1, 1999, counsel for the government institution forwarded twenty-one documents to the applicant in response to his request for disclosure dated December 15, 1998.
[5] On February 9, 1999, counsel for the government institution wrote to the applicant seeking information concerning the grounds of his appeal. The relevant paragraph of this letter states:
| [TRANSLATION] In your appeal document, you say the grounds for appeal will be given after disclosure. When will you be able to send them to me? I would like to draw your attention to subsection 25(1) of the Regulations: The allegations submitted by the appellant to the deputy head concerned shall be in writing and sufficiently detailed to permit the deputy head to provide a response . |
The provision referred to in the letter is subsection 25(1) of the Public Service Employment Regulations, 1993 - Amendments, SOR/96-482. The full text of section 25 is annexed to these reasons.
[6] On February 10, 1999, the applicant acknowledged receipt of the documents sent to him on February 1, 1999. He then disclosed the grounds of his appeal in the following few words:
| [TRANSLATION] The reason for my appeal is the following: the comparative assessment of the appellant and the successful candidate is not based on merit. |
[7] On February 12, 1999, counsel for the government institution sought particulars concerning the applicant"s grounds of appeal and reminded the latter of the regulatory requirement in subsection 25(1). The relevant portion of this letter reads as follows:
| [TRANSLATION] Subsection 25(1) of the Public Service Employment Regulations says that: The allegations submitted by the appellant to the deputy head concerned shall be in writing and sufficiently detailed to permit the deputy head to provide a response. The grounds you have given me are vague and imprecise, a mere reiteration of subsection 21(4) of the Act. I am therefore unable to respond. Please provide particulars as soon as possible. |
[8] On February 17, 1999, some two days after receiving counsel"s letter of February 12, 1999, the applicant faxed the following message in response to the request for particulars:
| [TRANSLATION] We are at the allegation"not argument"stage . . . Nevertheless, here are more particulars: The documents provided to the appellant through disclosure are both lacking and biased; they do not support the conclusion that the successful candidate most merits the position of senior tax practitioner. |
[9] On the record before me, there was no further communications between the parties until the opening of the hearing of February 23, 1999. On that occasion, counsel for the government institution sought the dismissal of the appeal because the applicant had failed to provide "sufficiently detailed" allegations within the meaning of subsection 25(1) of the Regulations. In response, the applicant argued that his grounds of appeal were satisfactorily stated and, in the alternative, he sought an adjournment to provide further particulars, if necessary.
[10] On February 23, 1999, the Appeal Board Chair, after hearing each party and taking the matter under advisement for a short period of time, refused the adjournment and dismissed the applicant"s appeal. The relevant portions of his reasons for decisions, issued two days later, state:
| [TRANSLATION] The appellant is a lawyer and apparently a senior tax practitioner. I find it hard to believe he might fail to grasp the meaning of the regulation requiring that the allegations to be submitted to the deputy head or representative thereof before the hearing must be sufficiently detailed to permit the deputy head to provide a response. |
| Considering the documents submitted by Mr. Lapierre, any reasonable person can only conclude that Mr. Lapierre could not in fact respond to this general statement without knowing the precise grounds on which the appeal was based. |
| I thus find that no allegation within the meaning of subsection 25(1) of the Regulations was submitted by the appellant before the hearing of this appeal. Considering the Department"s disclosure of documents to the appellant and the content of the comments in the correspondence between the appellant and counsel for the Department, I have no valid reason to postpone the hearing date for this appeal, which I can only dismiss. |
[11] In my view, this decision must be set aside because of the Appeal Board Chair"s failure to respect the principles of natural justice and procedural fairness and to implement fully the provisions of section 25 of the Regulations. There are four principal reasons for my having reached this conclusion.
[12] First, the applicant was never advised, prior to the hearing of February 23, 1999, that his response of February 17, 1999 to the request for particulars was considered to be insufficient by the government institution. It was only on the day of the hearing that the applicant learned that the sufficiency of his particulars was being challenged.
[13] Second, the applicant was never advised, prior to the hearing of February 23, 1999, that the government institution would, by way of a preliminary motion, seek the dismissal of his appeal on the grounds that his allegations were not sufficiently detailed. While the content of the applicant"s communications of February 10 and 17, 1999 may not invite much sympathy, I accept that he was taken by surprise when counsel for the government institution moved, at the outset of the hearing, for the dismissal of his appeal without prior notice. In my view, the applicant had a right to know that the government institution found that his response of February 17, 1999 was, in its view, lacking and that it would move for the dismissal of his appeal by way of a preliminary motion on February 23, 1999. The submission by the respondent"s counsel that no regulation or rule required such notice cannot be a complete and acceptable response. In my view, procedural fairness and common sense dictate otherwise.
[14] I take comfort in reaching this conclusion from analogous decisions which considered the scope of the discretion to be exercised by administrative tribunals in considering adjournments.
[15] In Siloch v. Canada (Minister of Employment and Immigration) (1993), 10 Admin. L.R. (2d) 285, 151 N.R. 76 (F.C.A.), Justice Décary reviewed, on behalf of the unanimous panel of the Court of Appeal, the principle concerning the control by administrative tribunals of procedural issues such as adjournments:
| 3. It is well settled that in the absence of specific rules laid down by statute or regulation, administrative tribunals control their own proceedings and that adjournment of their proceedings is very much in their discretion, subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. |
[16] In applying this principle to the discretion exercised by an immigration adjudicator in considering an adjournment request, Justice Décary further noted:
| 4. It is also well settled that in exercising his discretion to grant an adjournment ... the Adjudicator must direct his attention to factors such as: |
| (a) whether the applicant has done everything in her power to be represented by counsel; |
| (b) the number of previous adjournments granted; |
| (c) the length of time for which the adjournment is being sought; |
| (d) the effect on the immigration system; |
| (e) would the adjournment needlessly delay, impede or paralyse the conduct of the inquiry; |
| (f) the fault or blame to be placed on the applicant for not being ready; |
| (g) were any previous adjournments granted on a peremptory basis; |
| (h) any other relevant factors. |
The immigration adjudicator had by regulation the power to grant an adjournment where it would not impede or unreasonably delay proceedings.
[17] In his recent decision in Jeyakumar v. Attorney General of Canada, [1999] F.C.J. No. 1798 (QL) (T.D.), Justice Campbell, properly in my respectful view, adopted the principles in Siloch in his consideration of the refusal by an appeal board, acting under section 21 of the Public Service Employment Act, to grant an adjournment:
| 15. It is important to note that no attempt was made by the Appeal Board Chair on November 24th to find out how much time would be needed by Mr. Lang to become adequately prepared. It might very well be that a day, a week, or perhaps a few weeks was all that was required. As Décary J.A. cited in Siloch as quoted above, it was incumbent upon the Appeal Board Chair to canvass this issue as an essential part of exercising his discretion. This was not done, and, consequently, a reviewable error occurred. |
[18] Third, even assuming that the Appeal Board Chair was correct both in characterizing the applicant"s allegations as insufficiently detailed and in refusing to grant an adjournment, neither issue which I need specifically decide, I am satisfied that section 25 of the Regulations required him to canvass further the possibilities of full disclosure, even on very short notice, before dismissing the applicant"s appeal.
[19] Section 20 of the Regulations defines "full disclosure":
| "Full disclosure" means access by the appellant to documents or information referred to in subsection 24(2) and the submission of the allegations referred to in subsection 25(1) by the appellant to the deputy head concerned; |
" divulgation complète " S"entend de l"accès par l"appelant à l"information ou aux documents visés au paragraphe 24(1), de l"obtention d"une copie de tout document visé au paragraphe 24(2) et de la remise, par l"appelant à l"administrateur général en cause, des allégations visées au paragraphe 24(1). |
It is important to note that the regulation contemplates full disclosure both by the government institution and the appellant. Concerning the appellant, the duty of disclosure is linked directly to subsection 25(1) of the Regulations.
[20] Subsection 25(2) of the Regulations provides that in exceptional circumstances and with the consent of the appeal board, the appellant"s allegations may be submitted orally. The appeal board may, on the initiative of one of the parties under subsection 25(6), extend the period for full disclosure. Similarly, subsection 25(8) allows the appeal board to set new time limits for full disclosure on its own initiative. Finally, subsection 25(10) provides that an adjournment of the hearing may be sought where full disclosure by the other party is only completed beyond the prescribed period and for reasons beyond that party"s control.
[21] The Appeal Board Chair decided three matters simultaneously: (a) the applicant"s allegations were not sufficiently detailed; (b ) his request for an adjournment was refused; and (c) his appeal was dismissed. There is nothing in the record nor in the reasons of the Appeal Board Chair which discloses that the applicant was afforded the opportunity to supplement his allegations orally, after the ruling that his grounds for appeal were insufficiently particularized and prior to the dismissal of his appeal. In my view, in the circumstances of this case where the applicant had no prior notice of the government institution"s dissatisfaction with his allegations and of its intention to seek the dismissal of the appeal, the scheme set out in subsections 25(2), (6), (8) and (10) required the Appeal Board Chair to provide this final opportunity for full disclosure before he considered and ruled on the motion to dismiss.
[22] Counsel for the respondent argued that, in an adversarial process, the burden is on the party in default to invoke the provisions of section 25. While there may be some merit to this argument concerning certain provisions of section 25, it does not apply to paragraph 25(8)(a). More significantly, however, the applicant was never given the opportunity to raise the alternatives in section 25 because his appeal was dismissed simultaneously with the decision that his particulars were not sufficiently detailed.
[23] Fourth, in addition to canvassing the options provided for in the Regulations, the Appeal Board Chair was also required to respect the provisions of section 21 of the Public Service Employment Act which provided that it was to "conduct an inquiry at which the person appealing ... shall be given an opportunity to be heard". To repeat, the applicant had no prior notice from the government institution, by letter or otherwise, concerning its intention to move for dismissal because of purportedly insufficiently detailed allegations. Having determined that the applicant had not provided full disclosure as defined in the Regulations, it was incumbent upon the Appeal Board Chair, in my view, to advise the parties of his decision prior to the dismissal of the appeal. Because the three aspects of the Appeal Board Chair"s decision were determined simultaneously, I am not satisfied that the applicant was given an opportunity to be heard within the meaning of section 21 of the Act. The Appeal Board Chair"s failure to do so requires this Court"s intervention.
[24] The applicant also argued that subsection 25(1) of the Regulations is invalid subordinate legislation, principally because of the vagueness of the words "sufficiently detailed". I have serious doubts concerning the merits of this submission. However, in view of my conclusion on the procedural issues, it is not necessary that I consider further the question.
[25] For these reasons, this application for judicial review will be granted and the applicant"s appeal referred for rehearing and redetermination by a newly constituted panel. There will be no order as to costs.
Allan Lutfy
J.F.C.C.
Ottawa, Ontario
January 5, 2000
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-368-99
| STYLE OF CAUSE: Jacques Savoie v. Attorney General of Canada |
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 8, 1999
REASONS FOR ORDER OF: Lutfy J.
DATED: January 5, 2000
APPEARANCES:
| Jacques Savoie THE APPLICANT ACTING ON HIS OWN BEHALF |
Jan Brongers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT