Kibale v. Canada, (1992) 58 F.T.R. 199 (TD)

• Judge: Dubé, J.
• Court: Federal Court (Canada)
• Case Date: October 07, 1992
• Jurisdiction: Canada (Federal)
• Citations: (1992), 58 F.T.R. 199 (TD)

Kibale v. Can. (1992), 58 F.T.R. 199 (TD)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Guillaume Kibale (demandeur) v. Sa Majesté La Reine (défenderesse)

(T-1891-88)

Indexed As: Kibale v. Canada

Federal Court of Canada

Trial Division

Dubé, J.

November 2, 1992.

Summary:

The plaintiff sued the Crown for damages because he was not awarded an economist's position with a federal government depart­ment.

The Federal Court of Canada, Trial Divi­sion, dismissed the action.

Conflict of Laws - Topic 7692

Torts - Choice of law - Torts affecting the person - Limitation of actions - In 1981 the plaintiff entered a federal gov­ernment job competition - He was inter­viewed in Ottawa, Ontario, and considered to be the best qualified, but was not hired - In 1988 the plaintiff sued the Crown for damages - At trial the Crown argued that under arts. 2261 and 2262 of the Civil Code of Lower Canada a prescription period of one or two years applied, thereby barring the plaintiff's claim - The Crown argued that the cause of action arose in Montreal, Quebec, where he lived at the time and where he was formally advised of his rejection - The Federal Court of Canada, Trial Division, rejected the Crown's argument, holding that the Ontario Limitations Act applied (i.e., a six year limitation period) - See paragraphs 1 to 22.

Crown - Topic 1534

Torts by and against Crown - Liability of Crown for acts of servants - Hiring prac­tices - In 1981 the plaintiff entered a federal government competition for an economist's job - He was the best qual­ified, but not hired - During human rights proceedings in 1985, he learned that the same pool of candidates was considered for two other positions (i.e., "piggy-backing") - He was not hired for these posi­tions - The plaintiff sued the Crown for damages, alleging that Crown employees were at fault - The Federal Court of Canada, Trial Division, held that his claim respecting the original position was statute barred (Limitations Act (Ont.), s. 45(1)(g)) - His claim respecting the other two posi­tions was dismissed because he was not qualified on merit (Public Service Em­ployment Act, s. 10).

Labour Law - Topic 9203

Public service labour relations - Job com­petitions - Merit principle - [See Crown - Topic 1534 ].

Limitation of Actions - Topic 3010

General principles - When time begins to run - In 1981 the plaintiff entered a feder­al government job competition for an economist's job - He was the best qual­ified, but was not hired - During human rights proceedings in 1985, he learned that the same pool of candidates was con­sidered for two other positions, neither of which he was offered - When the human rights proceedings were unsuccessful, the plaintiff sued the Crown for damages in 1988 - The Crown argued that the action was barred by the six year limitation period in the Ontario Limitations Act, s. 45(1)(g) - The Federal Court of Canada, Trial Division, held that the plaintiff's action respecting the original economist's job was statute barred, but the action re­specting the other two positions was not, because this situation was only discovered in 1985 - See paragraphs 22 to 31.

Cases Noticed:

Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; 1 N.R. 122, refd to. [para. 19].

Elguindy v. Core Laboratories Canada Ltd. (1987), 60 O.R.(2d) 151 (H.C.J.), refd to. [para. 20].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 42 R.P.R. 161, refd to. [para. 22].

Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489; 81 N.R. 61, refd to. [para. 34].

Doré v. Canada, [1987] 2 S.C.R. 503; 81 N.R. 77, refd to. [para. 34].

Canada (Procureur général) v. Alliance de la Fonction publique du Canada, [1991] 1 S.C.R. 614; 123 N.R. 161, refd to. [para. 34].

Public Service Alliance of Canada v. Canada (Attorney General) and Econo­sult Inc. - see Canada (Procureur géné­ral) v. Alliance de la Fonction publique du Canada.

Evans v. Public Service Commission Appeal Board, [1983] 1 S.C.R. 582; 47 N.R. 255, refd to. [paras. 34, 63].

Canada (Attorney General) v. Blashford et al., [1991] 2 F.C. 44; 120 N.R. 223 (F.C.A.), refd to. [para. 34].

Canada (Attorney General) v. Asselin (1986), 72 N.R. 253 (F.C.A.), refd to. [para. 34].

Sharpe v. Canada (Attorney General), [1983] 1 F.C. 292; 43 N.R. 433 (F.C.A.), refd to. [para. 34].

Delanoy v. Public Service Commission Appeal Board, [1977] 1 F.C. 562; 13 N.R. 341 (F.C.A.), refd to. [para. 34].

Bambrough v. Public Service Commission Appeal Board, [1976] 2 F.C. 109; 12 N.R. 553 (F.C.A.), refd to. [para. 34].

Blagdon v. Public Service Commission Appeal Board, [1976] 1 F.C. 615 (F.C.A.), refd to. [para. 34].

Public Service Alliance of Canada v. Canada (At­torney Gen­eral) et al. (1992), 52 F.T.R. 278 (T.D.), refd to. [para. 34].

Kennedy v. Public Service Commission (Can.) (1990), 34 F.T.R. 52 (T.D.), refd to. [para. 34].

McCarthy v. Canada (Attorney General), [1981] 1 F.C. 309 (F.C.A.), refd to. [para. 61].

Statutes Noticed:

Civil Code of Lower Canada, art. 2261, art. 2262 [para. 18].

Crown Liability Act, R.S.C. 1970, c. C-38, sect. 3(1)(a) [para. 32].

Limitations Act. R.S.O. 1980, c. 240, sect. 45(1)(g) [para. 22].

Public Service Employment Act, R.S.C. 1970, c. P-32, sect. 6(2) [para. 61]; sect. 10 [para. 33 et seq.]; sect. 12(1), sect. 17, sect. 18 [para. 35].

Public Service Employment Act Regula­tions (Can.), sect. 21 [para. 35].

Counsel:

Guillaume Kibale, on his own behalf;

Alain Préfontaine, for the defendant.

Solicitors of Record:

John C. Tait, Q.C., Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the defendant.

This application was heard in Ottawa, Ontario, from September 28 to October 7, 1992, before Dubé, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on November 2, 1992.