Mercer v. Canada (Attorney General) et al., (2005) 283 F.T.R. 266 (FC)

• Judge: de Montigny, J.
• Court: Federal Court (Canada)
• Case Date: November 09, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 283 F.T.R. 266 (FC);2005 FC 1567

Mercer v. Can. (A.G.) (2005), 283 F.T.R. 266 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. JA.010

Sandra Mercer (applicant) v. Attorney General of Canada and Sandra Hounsell (respondents)

(T-460-05; 2005 FC 1567)

Indexed As: Mercer v. Canada (Attorney General) et al.

Federal Court

de Montigny, J.

November 18, 2005.

Summary:

The Public Service Commission declined jurisdiction to investigate a complaint filed by the applicant under s. 7.1 of the Public Service Employment Act. The applicant applied for judicial review of the Commission's decision.

The Federal Court allowed the application. The court quashed the Commission's decision and remitted the matter to the Commission to be investigated in accordance with the court's reasons.

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - The applicant filed a request for investigation by the Public Service Commission under s. 7.1 of the Public Service Employment Act - The Commission advised the applicant that her complaint would not be investigated - The applicant applied for judicial review - The applicant argued that the Commission breached its duty of procedural fairness because it failed to acquaint her with the case she had to meet and give her an opportunity to respond - Specifically, she argued that the Commission should have informed her of the findings in a jurisdiction review conducted prior to its decision - The Federal Court rejected the argument - There was nothing to indicate that the applicant was unaware of the case she had to meet in making a complaint under s. 7.1 - The jurisdiction review document contained primarily information that the applicant was already aware of - While it also contained a recommendation to decline to investigate the applicant's complaint, that could be seen as a part of the decision process and there was nothing in the duty of fairness that would have required its disclosure as the reasons and decision of the Commission were made clear to the applicant as soon as the decision was made - See paragraphs 21 to 23.

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - The applicant filed a request for investigation by the Public Service Commission under s. 7.1 of the Public Service Employment Act - The Commission advised the applicant that her complaint would not be investigated because it did not meet the conditions of the "Policy on the conditions governing the decision to investigate pursuant to s. 7.1 of the Public Service Employment Act" - The applicant applied for judicial review - The applicant argued that the Policy used by the Commission could not be legally binding since it was not enacted pursuant to any statutory power and that the Commission committed an error of law and fettered its discretion by reaching its decision by a mechanistic application of the Policy - The Federal Court rejected the argument - There was nothing to indicate that the Policy was treated as legally binding or that its application caused the Commission to overlook relevant evidence - See paragraphs 17 to 20.

Labour Law - Topic 9002

Public service labour relations - Authority of Commission or Commissioners - Human Resources and Skills Development Canada (the Department) offered a position to Hounsell without consideration of the applicant's priority rights - The Department subsequently considered the applicant for the position and found that she was not qualified - The applicant filed a request for investigation by the Public Service Commission under s. 7.1 of the Public Service Employment Act (PSEA) - The Commission advised the applicant that her complaint would not be investigated because it did not meet the conditions of the "Policy on the conditions governing the decision to investigate pursuant to s. 7.1 of the Public Service Employment Act" - The applicant applied for judicial review - The Federal Court allowed the application - The Commission breached its duty of procedural fairness where it had contacted the Department to obtain additional information to help in its determination of whether to accept the applicant's request for investigation - The Policy was clear that the Commission was not to investigate at this stage - It was only required to determine whether the matter raised would constitute a defect in the application of the PSEA if proven to be true on the face of it - The findings on which the Commission based its decision not to investigate could not have been arrived at before conducting an investigation - See paragraphs 25 to 30.

Labour Law - Topic 9323

Public service labour relations - Judicial review - Decisions of board or commission - Standard of review - The applicant filed a request for investigation by the Public Service Commission under s. 7.1 of the Public Service Employment Act - The Commission advised the applicant that her complaint would not be investigated because it did not meet the conditions of the "Policy on the conditions governing the decision to investigate pursuant to s. 7.1 of the Public Service Employment Act" - The applicant applied for judicial review - The Federal Court applied the pragmatic and functional approach and determined that on the issue of the proper interpretation of the policy, a standard of correctness should govern - However, a standard of reasonableness simpliciter was applicable when assessing the reasons given by the Commission for not investigating the applicant's complaint - See paragraphs 8 to 16.

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 8].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 8].

Harquail v. Public Service Commission (Can.) (2004), 264 F.T.R. 181; 2004 FC 1549, refd to. [para. 11].

Oriji v. Canada (Attorney General) (2004), 252 F.T.R. 95 (F.C.), refd to. [para. 12].

Patel v. Public Service Commission (Can.), [1996] F.C.J. No. 127 (T.D.), refd to. [para. 14].

Nault v. Commission de la Fonction Publique du Canada et al., [2002] F.T.R. Uned. 893 (T.D.), refd to. [para. 14].

Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 18].

White (Peter G.) Management Ltd. et al. v. Canada (Minister of Canadian Heritage) et al. (2004), 251 F.T.R. 235; 2004 FC 597, refd to. [para. 18].

Neilans v. Canada (Attorney General), [2004] F.T.R. Uned. 663; [2004] F.C.J. No. 908; 2004 FC 716, refd to. [para. 18].

Statutes Noticed:

Public Service Employment Act, R.S.C. 1985, c. P-33, sect. 7.1 [para. 1].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (1998 Looseleaf Ed.), vol. 2, p. 12-39 [para. 18].

Counsel:

David Yazbeck, for the applicant;

Tatiana Sandler, for the respondents.

Solicitors of Record:

David Yazbeck, Raven, Cameron, Ballantyne & Yazbeck LLP, Ottawa, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This application was heard on November 9, 2005, at Ottawa, Ontario, before de Montigny, J., of the Federal Court, who delivered the following decision on November 18, 2005.