Date: 19991004
Docket: T-1368-98
Ottawa, Ontario, the 4th day of October, 1999
PRESENT: The Honourable Mr. Justice Pelletier
BETWEEN :
DANNY DUCAS, GARY GOTTER, JOHN WRIGHT,
DARRIO GRITTI, FRAN KATZ and TIM LAW
Applicants
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER and ORDER
[1] In November 1994, the applicants appealed the results of a competition for Team Coordinator positions within the Department of National Revenue. The appeal was an exercise of their rights under s. 21 of the Public Service Employment Act R.S.C. 1985 c. P-331. The procedure for these appeals is set out in the Public Service Employment Regulations which have been amended from time to time. Section 25 of the Regulations required the appellants to provide the employer written notice of the allegations which would be made at the appeal. As the matter developed, some of the applicants were represented by their union representative and some chose to represent themselves. Mr. Ducas was among those who chose to represent themselves. There was some difficulty in finalizing the allegations as a result of which the Chairperson who had been appointed to hear the matter, Ms. Robinson, wrote to Mr. Ducas on November 10, 1995 to provide directions in the matter of finalizing the allegations. Because of the role which this letter assumes in the decision under review here, the material portion is reproduced below:
| Since these appeals were brought in November of 1994, I do not want to have any further delays in hearing this case on its merits. I trust that you will deal with the matter of representation expeditiously and obtain any further disclosure that is necessary to prepare your case. Your allegations should be submitted to the Department"s representative no later than December 5, 1995 in order that the hearing can take place as scheduled on December 13, and 14 if necessary. |
[2] There was a series of steps taken to provide the employees allegations prior to the scheduled hearing date. In particular:
| 1- On December 4, 1995, Mr. Ducas personally delivered the text of certain allegations to the employer"s representative, Ms. Sturch, at her office. Ms. Sturch was not available so Mr. Ducas gave the material to Ms. Sturch"s colleague who indicated that she would see that Ms. Sturch received them. |
| 2- Ms. Gee, who represented some of the applicants, faxed a number of allegations to Ms. Sturch on December 8, 1995. Mr. Ducas was present when this occured and was able to confirm that this was in fact done but no record of the fax transmission was produced. |
| 3- Ms. Gee faxed more allegations to Ms. Sturch in two separate fax transmissions on December 11, 1995. Once again, Mr. Ducas was present and confirmed that the faxes were sent but no record of the fax transmission was produced. |
[3] As a result of an objection being taken by the employer with respect to the disclosure of certain standardized tests, the hearing did not proceed as scheduled on December 13 and 14, 1995. The objection resulted in an application to the Federal Court which was ultimately settled in 1998. By then, Ms. Robinson had retired and was no longer available to hear the matter so Mr. Ojalammi ( the Chair) was appointed to hear the dispute. The date of the hearing was set at June 1-3, 1998.
[4] On May 12, 1998 a summary of all the allegations which had been made to date was forwarded to Ms. Sturch in anticipation of the hearing. Approximately two weeks before the hearing, she made inquiries about these allegations of Mr. Ducas and Ms. Gee. At the hearing, Ms. Sturch took the position that the allegations delivered on December 4, 8, and 11, 1995 were not properly before the Board because she had not received them when in 1995 and that since, from her point of view, they were being raised for the first time in 1998, they were not in compliance with the direction given by Ms. Robinson in her letter of November 10, 1995.
[5] The Chair heard evidence on the merits of the application as well as on the question of the timeliness of the disclosure of the allegations. He concluded that Ms. Robinson"s letter of November 10, 1995 was a mandatory direction as to the disclosure of allegations, and that since he could not decide whether the allegations of December 4, 8 and 11, 1995 had in fact been sent or received (since he had no reason to disbelieve any of the parties) he could not find those allegations had been disclosed in compliance with Ms. Robinson"s letter. As a result, he ruled that he would not receive the December 4, 8 and 11, 1995 allegations. With the consent of all parties, the hearing was then adjourned to permit an application for judicial review of the Chair"s decision to be made.
[6] The Chair expressed his position as follows:
| "At the hearing, I indicated that I would not receive any allegations that had not been received by 05 December 1995 deadline that had been set by my predecessor. As the parties had completed disclosure of all the information other than the standardized test before my predecessor issued her letter on 10 November 1995, I expressed the opinion that more than enough time had been provided in the letter for the formulation and presentation of the allegations. ... I did however indicate that if there exceptional circumstances that had somehow prevented allegations being presented by 05 December 1995, I wished to be informed of them." |
| "In these circumstances, I cannot conclude that any allegations beyond those of 15 September 1995 were received on or before 05 December 1995. As the requirement to file the allegations was on the appellants and no exceptional circumstances were brought forward at the appeal hearing to justify or even mitigate missing that deadline, I will confirm the ruling I gave at the hearing: I will not receive any allegations that were not presented to the department on or before 05 December, 1995." |
[7] The basis of the application is that the Chair misdirected himself in treating Ms. Robinson"s letter of November 11, 1995 as a mandatory direction. The applicants" position is that the Chair was bound by the duty of fairness to consider the late allegations when there was no evidence before him of any prejudice to respondent from his doing so. The respondent"s position is that the Chair was correct in his assessment of the effect of the November 11, 1995 letter; that he was entitled to consider, and did consider, the applicants" request that they be allowed to rely upon the late allegations; that after considering the applicant"s request he rejected it, as he was entitled to do.
[8] The Chair erred in treating the direction of Ms. Robinson as precluding the consideration of allegations produced after the specified date when the underlying basis of the direction no longer existed. The direction or order was made so as to facilitate the hearing of the appeal on December 13 and 14, 1995. Compliance or non-compliance with the order would have been an issue before Ms. Robinson if the hearing had proceeded on that date. When the hearing was adjourned, the rationale for the order disappeared.
[9] When the hearing resumed before Chairman Ojalammi, the issue was timely disclosure of the allegations to be relied upon by the applicants. Ms. Robinson"s order was a factor to be considered in dealing with that issue but it ought not to have been treated as determinative of the issue, given the disappearance of the underlying rationale. The Chair ought to have considered the issue in light of the significance of the additional allegations, the presence or absence of prejudice to the respondent, and the desirability of bringing this longstanding matter to a conclusion. As a result of the adjournment of the matter for the purposes of this application, the employer has now had the package of allegations, new and old, in its hands, for more than a year. There is no longer any issue as to the employer"s ability to respond to the allegations.
[10] In disposing of the matter as he did, Chairman Ojalammi failed to observe a principle of procedural fairness by depriving the applicants of their right to present their full case. His decision is therefore subject to being set aside pursuant to s. 18.1 of the Federal Court Act.
[11] As a result, there will be an order that the order of Chairman Ojalammi by which he declined to receive any allegations not disclosed to the employer prior to December 5, 1995 is hereby set aside and the matter is remitted to Chairman Ojalammi to be dealt with on the basis of the allegations as disclosed to the employer"s representative on May 12, 1998.
O R D E R
The decision of Chairman Ojalamni in which he declined to receive any allegations not disclosed to the employer prior to December 5, 1995, is set aside and the matter is remitted to Mr. Ojalammi for hearing on the basis of all the allegations as disclosed to the employer"s representative on May 12, 1998.
Judge
__________________1 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.
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.