Federal Court of Appeal Decisions

Date: 20020228

Docket: 02-A-1

Neutral citation: 2002 FCA 85

Present:           The Honourable Justice Sharlow

IN THE MATTER OF THE Public Service Employment Act, section 21

AND IN THE MATTER OF THE appeals of Purandhar Setlur against the selections made for appointment by closed competitions 96-NAR-SOR-TWTS-CCID-09 and 96-NAR-SOR-TWTS-CCID-10 for Tax Auditor and audit Officer - GST positions respectively in Revenue Canada Customs, Excise and Taxation, Mississauga, Ontario

BETWEEN:

                                                             PURANDHAR SETLUR

                                                                                                                                                       Applicant

                                                                                 and

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                            Dealt with in writing without appearance of parties

                                      Order delivered at Ottawa, Ontario, February 28, 2002

REASONS FOR ORDER BY:                                                                                         SHARLOW J.A.

Date: 20020228

Docket: 02-A-1

Neutral citation: 2002 FCA 85

Present:           The Honourable Justice Sharlow

IN THE MATTER OF THE Public Service Employment Act, section 21

AND IN THE MATTER OF THE appeals of Purandhar Setlur against the selections made for appointment by closed competitions 96-NAR-SOR-TWTS-CCID-09 and 96-NAR-SOR-TWTS-CCID-10 for Tax Auditor and audit Officer - GST positions respectively in Revenue Canada Customs, Excise and Taxation, Mississauga, Ontario

BETWEEN:

                                                             PURANDHAR SETLUR

                                                                                                                                                       Applicant

                                                                                 and

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

SHARLOW J.A.

[1]                 In 1996, the applicant participated in the selection processes for two different positions at the PM 02 level within the Toronto West District Office of the Canada Customs and Revenue Agency. He was not successful, and commenced appeals pursuant to subsection 21(1) of the Public Service Employment Act. His appeals were finally dismissed by an Appeal Board on August 29, 2001. The applicant commenced an application for judicial review of that decision. The notice of application was filed in the Trial Division (T-1736-01) and is now pending.

[2]                 The applicant has filed a notice of motion seeking an order transferring his application to the Appeal Division pursuant to section 21.1 of the Public Service Employment Act. Such a transfer must be made if the parties to the application so agree or:

... if the Federal Court of Appeal, on application by any of those parties, so orders on the basis that the sound administration of that part of the Public Service over which the deputy head concerned has jurisdiction would be unduly prejudiced by delay if the matter were heard and determined by the Federal Court - Trial Division and subject to an appeal to the Federal Court of Appeal.

[3]                 The applicant argues that this matter should be transferred to the Appeal Division because he has been unduly prejudiced by the delay to date and will be unduly prejudiced by further delay if the matter is heard and determined by the Trial Division and subject to an appeal to the Federal Court of Appeal.

[4]                 The material filed in support of the applicant's motion indicates that he has reason to be frustrated by the process to date. However, an order for a transfer under section 21.1 of the Public Service Employment Act cannot be based on the kinds of difficulties the applicant has encountered. I cannot make such an order unless I am satisfied that the delay entailed in permitting the application to be heard in the Trial Division and then be subject to appeal would result in undue prejudice to the sound administration of the Toronto West District Office of the Canada Customs and Revenue Agency.

[5]                 The respondent argues that there is no risk of undue prejudice to the sound administration of the Toronto West District Office. In support of that argument, the respondent relies on the affidavit of Mr. Richard K. Gabourie, staffing consultant with the Toronto West District Office of the Canada Customs and Revenue Agency. Mr. Gabourie states that in his opinion the sound administration of the Toronto West District Office is not at risk of undue prejudice if the present application is allowed to proceed in the Trial Division. He relies on a number of facts to support his opinion. It seems to me that the most important fact in the context of this case is that all but one of the individuals who were successful in the 1996 selection processes have since been appointed to other positions.

[6]                 In the face of that evidence, and having carefully reviewed the applicant's material, I cannot find that the requirements of section 21.1 of the Public Service Employment Act have been met. Therefore, the motion will be dismissed.

"K. Sharlow"

J.A.