Kilpatrick v. Canada et al., (1986) 4 F.T.R. 282 (TD)

• Judge: Collier, J.
• Court: Federal Court (Canada)
• Case Date: July 18, 1985
• Jurisdiction: Canada (Federal)
• Citations: (1986), 4 F.T.R. 282 (TD)

Kilpatrick v. Can. (1986), 4 F.T.R. 282 (TD)

MLB headnote and full text

Kilpatrick v. Canada, Attorney General of Canada, Public Service Commission and Canada Employment and Immigration Commission

(T-4313-82)

Indexed As: Kilpatrick v. Canada et al.

Federal Court of Canada

Trial Division

Collier, J.

June 16, 1986.

Summary:

Kilpatrick took a leave of absence from her Canada Post position to recover from an injury. Another person was appointed to her position. When Kilpatrick was ready to return to work, s. 30(1) of the Public Service Employment Act gave her a one year statutory priority of appointment to any civil service position for which she was qualified. Two positions in the Canada Employment and Immigration Commission (C.E.I.C.) interested Kilpatrick. The Public Service Commission (P.S.C.) referred Kilpatrick to the C.E.I.C. The C.E.I.C. felt Kilpatrick was not qualified for the positions and refused to interview her. The P.S.C., determined that Kilpatrick was entitled to an interview, withheld clearance so that the positions would not be permanently filled during the priority period. When the priority period ended the C.E.I.C. staffed the positions with the persons it appeared to have always in mind. Kilpatrick brought an action for a declaration that she was denied her statutory priority of appointment under s. 30(1), that she was entitled to be appointed to one of the two positions and damages for loss of earnings. Kilpatrick submitted that the C.E.I.C. either intentionally or negligently failed to carry out its duties under the Act or exercised its discretionary powers in bad faith.

The Federal Court of Canada, Trial Division, dismissed the action. The court, although sympathetic towards Kilpatrick, held that the C.E.I.C. technically complied with its statutory duty, was not required to hold an interview and was not proved to have acted in bad faith.

Crown - Topic 1701

Torts by and against Crown - Actions against Crown for breach of statutory duty - A civil servant on a leave of absence alleged that the Canada Employment and Immigration Commission denied her statutory priority of appointment under s. 30(1) of the Public Service Employment Act respecting two C.E.I.C. positions - The civil servant submitted that the C.E.I.C. breached its statutory duty in refusing to interview her and in finding that she was not qualified for the two positions - The Federal Court of Canada, Trial Division, held that there was no breach of statutory duty, because the C.E.I.C. technically complied with the procedural requirements of the Act and was not proved to have acted in bad faith - The court held that the C.E.I.C. was not required to personally interview the civil servant.

Labour Law - Topic 9215

Public service labour relations - Job selection - Appointment - Statutory priority following leave - Civil servants returning from leaves of absence, whose former positions were not available, were entitled under s. 30(1) of the Public Service Employment Act to a one year statutory priority of appointment to positions for which they were qualified - The Canada Employment and Immigration Commission refused to appoint a civil servant it felt was unqualified - The civil servant sought a declaration that she was entitled to one of the two C.E.I.C. positions available, alleging breach of statutory duty and bad faith - The Federal Court of Canada, Trial Division, dismissed the action, because the C.E.I.C. complied with the Act in determining she was not qualified and was not proved to have acted in bad faith.

Practice - Topic 7024

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - A civil servant brought an action against the Canada Employment and Immigration Commission and others when she was not appointed to a C.E.I.C. position under her statutory priority of appointment in s. 30(1) of the Public Service Employment Act - The Federal Court of Canada, Trial Division, sympathized with the civil servant, but dismissed her action - The whole matter was more of a bureaucratic power struggle between the C.E.I.C. and the Public Service Commission than between the civil servant and the C.E.I.C. - The court, in the "unfortunate circumstances", exercised its discretion and dismissed the action without costs.

Cases Noticed:

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 31].

Murray v. Canada (1983), 47 N.R. 299 (F.C.A.), refd to. [para. 33].

Rookes v. Barnard, [1964] A.C. 1129, refd to. [para. 49].

Statutes Noticed:

Public Service Employment Act, R.S.C. 1970, c. P-32, sect. 30(1) [para. 1].

Counsel:

Allan R. O'Brien, for the plaintiff;

Aluin Gilchrist, for the defendants.

Solicitors of Record:

Nelligan/Power, Ottawa, Ontario, for the plaintiff;

F. Iacobucci, Q.C., Deputy Attorney General of Canada, for the defendants.

This action was heard on September 4 and 5, 1984 and July 18, 1985, at Vancouver, B.C., before Collier, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on June 16, 1986.