Ayangma v. Canada, 2003 FCA 149

• Judge: Desjardins, Décary and Noël, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: January 27, 2003
• Jurisdiction: Canada (Federal)
• Citations: 2003 FCA 149;(2003), 303 N.R. 92 (FCA)

Ayangma v. Can. (2003), 303 N.R. 92 (FCA)

MLB headnote and full text

Temp. Cite: [2003] N.R. TBEd. AP.016

Dr. Noël Ayangma (appellant) v. Her Majesty the Queen (respondent)

(A-467-02; 2003 FCA 149)

Indexed As: Ayangma v. Canada

Federal Court of Appeal

Desjardins, Décary and Noël, JJ.A.

March 20, 2003.

Summary:

Ayangma applied for a position with Health Canada. Another candidate was chosen for the position. Ayangma sued the Crown, alleging that the Crown breached the Public Service Employment Act, the Official Languages Act and s. 15 of the Charter by not hiring him. He further alleged that the Crown and certain individuals breached an order by the Canadian Human Rights Tribu­nal related to the staffing process within Health Canada. Ayangma moved for sum­mary judgment and/or a determination of a question of law. The Crown moved for, inter alia, summary judgment dismissing the plaintiff's action.

The Federal Court of Canada, Trial Divi­sion, in a decision reported at 221 F.T.R. 81, dismissed Ayangma's application for sum­mary judgment. The court granted the Crown summary judgment. Ayangma's amended statement of claim raised no genuine issue for trial. Ayangma appealed.

The Federal Court of Appeal dismissed the appeal, affirming that the action could not stand because there was no genuine issue for trial.

Civil Rights - Topic 2869

Language - Right to use French or English in dealings with or within the public ser­vice - Job selection process - Ayangma was unsuc­cessful in a job competition with Health Canada - Only one member of the selec­tion board was capable of conducting Ayangma's interview in French - Ayangma sued the Crown, alleging, inter alia, that the process breached his language rights under ss. 21, 22, 28 and 39 of the Official Languages Act - The motions judge held that ss. 21, 22 and 28, which related to the public's access to federal "services", were inapplicable - An internal employment competition was not a "service" as envi­sioned by the legislation - Although, s. 39 addressed language rights while pursuing employment or advancement with federal institutions, it did not establish rights or corresponding duties, but was a statement of the Crown's commitment - Further, s. 39 was excluded from a remedy under s. 77 and the court lacked jurisdiction to remedy any s. 39 breach - The Federal Court of Appeal dismissed Ayangma's appeal - See paragraph 31.

Labour Law - Topic 9076

Public service labour relations - Remedies - Civil action - When available - Ayangma applied for a position with Health Canada -Another candidate was chosen - The Public Service Appeal Board allowed Ayangma's appeal - The Public Service Commission held a new competition - Ayangma refused to participate - The previously successful candidate was selected - Ayangma sued the Crown for damages, alleging breach of the Official Languages Act, the Public Service Em­ployment Act, the Charter and an order of the Canadian Human Rights Tribunal - The Federal Court of Appeal affirmed the dismissal of Ayangma's action on the basis that there was no genuine issue for trial - Ayangma could not base his action on his success before the Appeal Board - The appeal procedure under the Public Service Employment Act was directed at enforcing the fundamental principle of the Act, which was that an appointment was to be made according to the merit principle - If the process was found flawed, any appoint­ment would be revoked - A candidate who successfully appealed would not be entitled to the position - See paragraphs 28 to 30.

Labour Law - Topic 9188

Public service labour relations - Job com­petitions - Examinations and interviews - Choice of language - [See Civil Rights - Topic 2869 ].

Cases Noticed:

National Capital Alliance on Race Rela­tions v. Canada (Health and Welfare), [1997] C.H.R.D. No. 3 (Can. Hum. Rts. Trib.), refd to. [para. 6].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, refd to. [para. 17].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 18].

Caldwell et al. v. Public Service Commis­sion et al. (1978), 25 N.R. 458 (F.C.A.), refd to. [para. 29].

Canada (Attorney General) v. Girouard et al., [2002] 4 F.C. 538; 291 N.R. 289 (F.C.A.), refd to. [para. 29].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 34].

Counsel:

Noël Ayangma, on his own behalf;

James Gunvaldsen-Klaassen, for the re­spondent.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard at Halifax, Nova Scotia, on January 27, 2003, by Desjardins, Décary and Noël, JJ.A., of the Federal Court of Appeal. On March 20, 2003, Desjardins, J.A., delivered the following decision for the Court of Appeal at Ottawa, Ontario.