St-Amour v. Canada (Attorney General), (2014) 450 F.T.R. 102 (FC)

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: September 23, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 450 F.T.R. 102 (FC);2014 FC 103

St-Amour v. Can. (A.G.) (2014), 450 F.T.R. 102 (FC)

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2014] F.T.R. TBEd. OC.048

Marc St-Amour (applicant) v. Attorney General of Canada (respondent)

(T-188-13; 2014 FC 103; 2014 CF 103)

Indexed As: St-Amour v. Canada (Attorney General)

Federal Court

Strickland, J.

January 30, 2014.

Summary:

A public service employee obtained an appointment to another position (Senior Technical Analyst) in 2008 by committing fraud in the appointment process by submitting a resume containing false information about his academic credentials. By the time the fraud was discovered in 2012, the employee had been deployed to another position. The Public Service Commission took corrective action under s. 69 of the Public Service Employment Act. The Commission's final decision was that, inter alia, the 2008 appointment be revoked. It was previously made clear that revocation implied that all employment within the federal public service was to be ended. The stated purpose of the corrective action was "to ensure that individuals do not gain employment in the public service as a result of fraud". That decision was amended when it was pointed out that the employee no longer held the position the order revoked his appointment to. The revocation was made retroactive to the day before his deployment to the new position. When it was pointed out that the final decision did not clearly state that the employee was removed from any employment with the federal public service, a second final decision ordered not only that the employee's appointment be revoked, but that he would also cease to be a federal public service employee. The employee applied for judicial review of the second final decision. At issue was (1) the applicable standard of review in determining whether the Commission was functus officio; (2) whether the Commission was functus officio when it made its second final decision; and (3) whether the doctrine of promissory estoppel precluded the Commission from replacing its first decision with the second.

The Federal Court dismissed the application. The applicable standard of review to the issues of functus officio and promissory estoppel was reasonableness. The Commission was not functus officio and promissory estoppel did not apply.

Administrative Law - Topic 554

The hearing and decision - Decisions of the tribunal - Finality (functus officio) - Power of tribunal to amend or reopen decision - [See Administrative Law - Topic 9006 ].

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Public Service Commission rendered a final decision taking corrective action under s. 69 of the Public Service Employment Act respecting an employee who obtained an appointment by fraud (overstated his academic credentials in his resume) - The decision revoked his appointment - By the time the fraud was discovered, the employee had been deployed to another position - The Commission rendered a second final decision to clarify that its intention was not only to revoke the initial appointment, but any employment in the federal public service - The employee sought judicial review on the ground that the Commission was functus officio when it made the second decision and that promissory estoppel precluded the Commission from replacing the first decision with the second decision - The Federal Court held that the appropriate standard of review on both issues was reasonableness - See paragraphs 15 to 24.

Administrative Law - Topic 9006

Boards and tribunals - Jurisdiction - General - Termination of (functus officio) - A federal employee since 1997 obtained an internal appointment to higher position in 2008 by committing fraud (submitting a resume falsifying his academic credentials) - By the time the fraud was discovered in 2012, the employee had been deployed to another position - The Public Service Commission took corrective action under s. 69 of the Public Service Employment Act - The Commission's final decision was that the 2008 appointment be revoked - It was previously made clear that revocation implied that all employment within the federal public service was to be ended - The stated purpose of the corrective action was "to ensure that individuals do not gain employment in the public service as a result of fraud" - That decision was amended when it was pointed out that the employee no longer held the 2008 position - The revocation was made retroactive to the day before his deployment to the new position - When it was pointed out that the final decision did not clearly state that the employee was removed from any employment with the federal public service, a second final decision was made, ordering not only that the employee's appointment be revoked, but that he would also cease to be a federal public service employee - The employee applied for judicial review on the ground that the Commission was functus officio when it issued the second decision and that promissory estoppel precluded the Commission from replacing the first decision with the second - The Federal Court held that the Commission was not functus officio in rendering its second decision and promissory estoppel did not apply - The Commission was not functus because there was an error in the first decision in expressing the "manifest intention" of the Commission, which was that the employee was disentitled to any employment in the federal public service because of his fraud - The second decision clarified the manifest intention in the first decision - The Commission did not change its mind, reconsider or vary its first decision - Promissory estoppel did not apply because there was no promise or assurance of continued employment - The employee could not have reasonably interpreted anything done as only terminating his 2008 appointment - See paragraphs 25 to 71.

Contracts - Topic 9915

Promissory estoppel - Where applicable - Requirement of promise - [See Administrative Law - Topic 9006 ].

Cases Noticed:

Canada (Attorney General) v. Symtron Systems Inc. (1999), 236 N.R. 143 (F.C.A.), refd to. [para. 15].

Hakimi v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 312; 2002 FCT 481, refd to. [para. 15].

Saskatchewan Wheat Pool v. Canadian Grain Commission (2004), 160 F.T.R. 310; 2004 FC 1307, refd to. [para. 15].

I.M.P. Group Ltd., Aerospace Division (Comox) v. Public Service Alliance of Canada (2007), 312 F.T.R. 297; 2007 FC 517, refd to. [para. 15].

Tinney v. Canada (Attorney General) (2010), 368 F.T.R. 300; 2010 FC 605, refd to. [para. 15].

Elsipogtog First Nation Band Council v. Peters (2012), 407 F.T.R. 213; 2012 FC 398, refd to. [para. 15].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616; 423 N.R. 95; 275 Man.R.(2d) 16; 538 W.A.C. 16; 2011 SCC 59, refd to. [para. 17].

Nova Scotia Government and General Employees Union v. Capital District Health Authority (2006), 246 N.S.R.(2d) 104; 780 A.P.R. 104; 271 D.L.R.(4th) 156; 2006 NSCA 85, refd to. [para. 17].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 18].

Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; 99 N.R. 277; 101 A.R. 321, refd to. [para. 25].

Murphy v. Purolator Courier Ltd. et al. (1993), 164 N.R. 150 (F.C.A.), refd to. [para. 26].

Paley v. Fishing Lake First Nation - see Fishing Lake First Nation v. Paley.

Fishing Lake First Nation v. Paley (2005), 282 F.T.R. 224; 2005 FC 1448, refd to. [para. 26].

Imperial Oil Resources Ltd. v. Canada (Minister of Indian Affairs and Northern Development) et al. (2003), 232 F.T.R. 227; 2003 FCT 478, refd to. [para. 26].

Huneault v. Central Mortgage and Housing Corp. (1981), 41 N.R. 214 (F.C.A.), refd to. [para. 27].

Cargill Ltée v. Syndicat national des employés de Cargill Ltée (CNTU) (2002), 305 N.R. 267; 2002 FCA 269, refd to. [para. 27].

Mena Narvaez et al. v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 507; 2009 FC 514, refd to. [para. 27].

Tambwe-Lubemba v. Canada (Minister of Citizenship and Immigration) (2000), 264 N.R. 382 (F.C.A.), refd to. [para. 27].

Canadian National Railway Co. v. National Transportation Agency and Bowater Mersey Paper Co. (1989), 96 N.R. 378 (F.C.A.), refd to. [para. 30].

Challal v. Canada (Attorney General), [2009] F.T.R. Uned. 909; 2009 FC 1251, refd to. [para. 33].

Paper Machinery Ltd. v. J.O. Ross Engineering Corp., [1934] S.C.R. 186, refd to. [para. 41].

Chen v. Canada (Minister of Citizenship and Immigration) (2012), 420 F.T.R. 61; 2012 FC 1218, refd to. [para. 51].

Nozem v. Canada (Minister of Citizenship and Immigration) (2003), 244 F.T.R. 135; 2003 FC 1449, refd to. [para. 51].

Commission scolaire Harricana v. Syndicat des travailleuses et travailleurs de l'enseignement du nord-est québécois, [1988] R.J.Q. 947 (C.A.), dist. [para. 53].

Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50; 125 N.R. 294; 47 O.A.C. 333, refd to. [para. 63].

Mentuck v. Canada, [1986] 3 F.C. 249; 3 F.T.R. 80 (T.D.), refd to. [para. 63].

Karia v. Minister of National Revenue (2005), 272 F.T.R. 190; 2005 FC 639, refd to. [para. 63].

Ottawa Board of Education v. Federal Women's Teachers' Association, [1986] O.L.A.A. No. 58 (Arb.), refd to. [para. 64].

H.M. Trimble & Sons (1983) Ltd. v. International Union of Operating Engineers Local 115, [2009] B.C.C.A.A.A. No. 116 (Arb.), refd to. [para. 64].

York University v. Canadian Union of Public Employees, Local 3903, [2004] O.L.A.A. No. 112 (Arb.), refd to. [para. 64].

Mobil Oil Canada Ltd. v. Storthoaks (Rural Municipality), [1976] 2 S.C.R. 147; 5 N.R. 23, refd to. [para. 64].

Mount Sinai Hospital Center et al. v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281; 271 N.R. 104; 2001 SCC 41, refd to. [para. 67].

Arora v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 11 (T.D.), refd to. [para. 68].

Ministry of Commerce and Industry of the Republic of Cyprus v. Producteurs Laitiers du Canada et al. (2011), 420 N.R. 124; 2011 FCA 201, refd to. [para. 69].

Cameron v. Canada (Minister of Indian Affairs and Northern Development) et al. (2012), 411 F.T.R. 138; 2012 FC 579, refd to. [para. 69].

Sousa Do Nascimento et al. v. Canada (Minister of Citizenship and Immigration) (2012), 422 F.T.R. 147; 2012 FC 1424, refd to. [para. 69].

Statutes Noticed:

Public Service Employment Act, S.C. 2003, c. 22, sect. 69 [para. 42].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2012 looseleaf), vol. 3, para. 12:6200 [para. 25].

Spencer-Bower, G., and Turner, A.K., The Doctrine of Res Judicata (2nd Ed. 1969), p. 132 [para. 44].

Counsel:

Steven Welchner, for the applicant;

Marie-Josée Montreuil, for the respondent.

Solicitors of Record:

Welchner Law Office Professional Corp., Ottawa, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on September 23, 2013, at Ottawa, Ontario, before Strickland, J., of the Federal Court, who delivered the following judgment on January 30, 2014.