Date: 20020130
Docket: T-598-00
Neutral citation: 2002 FCT 119
Toronto, Ontario, this 30th day of January, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA
Applicant
- and -
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
- and -
PUBLIC SERVICE ALLIANCE OF CANADA
Intervener
[1] This is a motion brought pursuant to Rule 51 of the Federal Court Rules, 1998, wherein the appellant, Canada Customs and Revenue Agency, (the "Agency") appeals against the Order of the Prothonotary dated January 29, 2001, in which the appellant's motion to strike out the
notice of application in Federal Court matter T-598-00 was dismissed.
Background
[2] The facts of the case are aptly described in the Reasons of the Prothontary. For ease of reference, pertinent facts are repeated below in summary form.
[3] The Professional Institute of the Public Service of Canada ("PIPSC") is the responding party in this motion and the applicant in the main application. PIPSC is the representative and certified bargaining agent for approximately 9,000 auditors who were formerly employed by the Department of National Revenue.
[4] The Canada Customs and Revenue Agency (the "Agency") is the appellant in this motion, and the respondent in the main action. The Agency was statutorily created on November 1, 1999 to replace the Department of National Revenue. On that date, the 9,000 PIPSC members continued to be represented by PIPSC, but their employment relationship was automatically changed from the Department of National Revenue to the Agency. The Agency is a separate employer under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, which is the governing statute.
[5] When the auditors in question were employees of the Department of National Revenue, the staffing recourse provisions applicable to the auditors were outlined in the Public Service Employment Act, R.S.C. 1985, c. P-33 ("PSEA"). After the transition in November 1, 1999, the PSEA (and thus the Public Service Commission) no longer exercised staffing authority over the auditors in question, rather the Agency now exercises exclusive staffing authority pursuant to its own legislation.
[6] The originating application seeks a declaration that the Agency had failed to develop a program for staffing recourse, contrary to subsection 54(1) of the Canada Customs and Revenue Agency Act, S.C. 1999, c. 17 ("CCRAA") and for mandamus requiring the Agency to implement a staffing recourse system in accordance with the requirements of that provision.
[7] The applicant admits that the Agency has developed a staffing program which includes the "Directives on Recourse for Staffing", as was submitted as an exhibit to the applicant's affidavit. The main issue in contention is whether the "Directives on Recourse for Staffing" meet the requirements of subsection 54(1) of the CCRAA and the administrative law standards of natural justice and procedural fairness. In particular, the availability of staffing recourse provisions is important in this action with respect to the approximately 9,000 auditors employed by the Agency and represented by PIPSC.
[8] The Agency brought a motion to strike the application before the Prothonotary, which the Prothonotary dismissed. The Agency has further brought this motion to appeal the decision of the Prothonotary.
Summary of Appellant's Submissions
[9] The appellant (Agency) submits that the Prothonotary erred in failing to find no possibility of success in the applicant's application, that the applicant lacked standing, and that the applicant was barred by a limitation period.
[10] The appellant contends that the appropriate standard of review for the decision of the Prothonotary is the clearly wrong standard. The appellant submits that the Court should find the decision of the Prothonotary to be clearly wrong, allowing the Court to fetter its discretion de novo.
Summary of the Responding Party's Submissions
[11] The responding party to this motion (PIPSC) contends that they are entitled to standing both on the grounds they are directly effected by the staffing recourse policy now being applied to its members, and that they are also entitled to public interest standing. The responding party submits that an ongoing policy is not subject to a thirty day limitation period in which to bring an action, therefore, the judicial review application is not barred by time limitations. The responding party further contends that the Court should dismiss this motion and award costs to the responding party.
Intervener
[12] The Public Service Alliance of Canada by Order of the Prothonotary dated August 3, 2001, was granted leave to intervene in the related application for judicial review. The Court was informed by letter dated August 29, 2001 that the intervener will not be participating in the motion at hand.
[13] Issues
1. What is the appropriate standard of review to be applied to the decision of the Prothonotary?
2. Did the Prothonotary make a reviewable error?
[14] Law
The powers of the Trial Division and grounds for review appear in section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7:
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18.1 . . . (3) On an application for judicial review, the Trial Division may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. |
18.1 . . . (3) Sur présentation d'une demande de contrôle judiciaire, la Section de première instance peut_: a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable; b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral. |
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(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. |
(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_: a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer; b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter; c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages; f) a agi de toute autre façon contraire à la loi. |
[15] The statutory basis for the Agency's staffing recourse system is addressed in section 54 of the Canada Customs and Revenue Agency Act, supra as follows:
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54. (1) The Agency must develop a program governing staffing, including the appointment of, and recourse for, employees. (2) No collective agreement may deal with matters governed by the staffing program. |
54. (1) L'Agence élabore un programme de dotation en personnel régissant notamment les nominations et les recours offerts aux employés. (2) Sont exclues du champ des conventions collectives toutes les matières régies par le programme de dotation en personnel. |
[16] The following provisions of the CCRAA were also referred to:
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50. The Agency is a separate employer under the Public Service Staff Relations Act. |
50. L'Agence est un employeur distinct au sens de la Loi sur les relations de travail dans la fonction publique. |
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53. (1) The Agency has the exclusive right and authority to appoint any employees that it considers necessary for the proper conduct of its business. |
53. (1) L'Agence a compétence exclusive pour nommer le personnel qu'elle estime nécessaire à l'exercice de ses activités. |
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56. (1) The Public Service Commission may prepare, or have prepared on its behalf, a report to the Agency on the consistency of the Agency's staffing program with the principles set out in the summary of its corporate business plan and must send a copy of the report to the Auditor General and the Treasury Board. (2) The Public Service Commission may periodically review the compatibility of the principles governing the Agency's staffing program with those governing staffing under the Public Service Employment Act and may report its findings in its annual report. |
56. (1) La Commission de la fonction publique peut préparer -- ou faire préparer -- à l'intention de l'Agence un rapport sur la conformité du programme de dotation avec les principes énoncés dans le résumé du plan d'entreprise; elle envoie une copie du rapport au vérificateur général et au Conseil du Trésor. (2) La Commission de la fonction publique peut vérifier périodiquement la compatibilité des principes du programme de dotation de l'Agence avec les principes régissant la dotation sous le régime de la Loi sur l'emploi dans la fonction publique et faire état de ses conclusions dans son rapport d'activités. |
[17] Reference was made to section 8 of the Public Service Employment Act, supra which reads:
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8. Except as provided in this Act, the Commission has the exclusive right and authority to make appointments to or from within the Public Service of persons for whose appointment there is no authority in or under any other Act of Parliament. |
8. Sauf disposition contraire de la présente loi, la Commission a compétence exclusive pour nommer à des postes de la fonction publique des personnes, en faisant partie ou non, dont la nomination n'est régie par aucune autre loi fédérale. |
Analysis and Decision
[18] Issue 1
What is the appropriate standard of review to be applied to the decision of the Prothonotary?
The law followed by this Court when reviewing or deciding appeals from a discretionary decision of a Prothonotary is clearly set out by McGuigan J.A. in Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425 (F.C.A.) at pages 462 to 463:
I also agree with the Chief Justice in part as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.) at page 484, and Lacourcière J.A. in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
(b) they raise questions vital to the final issue of the case.
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.
And at pages 464 - 465:
The question before the prothonotary in the case at bar can be considered interlocutory only because the prothonotary decided it in favour of the appellant. If he had decided it for the respondent, it would itself have been a final decision of the case: A-G of Canada v. S.F. Enterprises Inc. et al. (1990), 90 DTC 6195 (F.C.A.) at pages 6197-6198; Ainsworth v. Bickersteth et al., [1947] O.R. 525 (C.A.). It seems to me that a decision which can thus be either interlocutory or final depending on how it is decided, even if interlocutory because of the result, must nevertheless be considered vital to the final resolution of the case. Another way of putting the matter would be to say that for the test as to relevance to the final issue of the case,
the issue to be decided should be looked to before the question is answered by the prothonotary, whereas that as to whether it is interlocutory or final (which is purely apro forma matter) should be put after the prothonotary's decision. Any other approach, it seems to me, would reduce the more substantial question of "vital to the issue of the case" to the merely procedural issue of interlocutory or final, and preserve all interlocutory rulings from attack (except in relation to errors of law).
In the appellant's motion before the Prothonotary, if the appellant was to be successful, the applicant's application would be at an end. Thus, the motion raised a "question vital to the final issue of the case". Therefore, in these circumstances, I must exercise my discretion de novo.
[19] Issue 2
Did the Prothonotary make a reviewable error?
The motion before the Prothonotary requested the following:
1. an Order striking out the notice of application in Federal Court matter T-598-00;
2. in the alternative, an Order directing the Applicant to provide a complete and concise statement of the grounds intended to be argued in accordance with the requirements of Rule 301(e) of the Federal Court Rules, 1998 and extending the time within which the Respondent may serve and file its supporting affidavits to 30 days after the date of the Order; and
3. such further and other relief as this Honourable Court deems just.
And the grounds for the motion were:
1. The Applicant lacks the requisite standing to bring an application for judicial review pursuant to section 18.1 of the Federal Court Act as it is not directly affected by the matter in respect of which relief is sought.
2. The Applicant did not commence the application within the time limit specified in subsection 18.1(2) of the Federal Court Act;
3. The application is so clearly improper as to be bereft of any possibility of success in that the Respondent has fully complied with its statutory obligation to develop a program governing staffing, including the appointment of, and recourse for, employees;
4. Canada Customs and Revenue Agency Act, S.C. 1999, c. 17, in particular section 54;
5. Federal Court Act, R.S.C. 1985, c. F-7, in particular sections 3, 18 and 18.1;
6. Federal Court Rules, 1998 SOR/98-106, in particular Rules 4 and 301.
[20] The Prothonotary stated in paragraphs 14, 15 and 16 of her decision:
The Agency's grounds for dismissal
14. The respondent's grounds for the within motion are threefold; the application is bereft of any possibility of success; the applicant lacks the requisite standing to bring the applications; and the application is time-barred.
15. It is without doubt that this court has the jurisdiction to summarily dismiss an application that is bereft of any possibility of success. The Federal Court of Appeal in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 at p. 600 has, however, set a very high threshold for striking an application. It is only possible to summarily dismiss a notice of application which is manifestly futile and unfounded. Such instances are stated to be "very exceptional" and cannot include cases where there is simply a debatable issue. It follows that an application which raises a serious, justiciable issue cannot be summarily dismissed and needs be adjudicated on the merits.
16. Here the respondent challenges as unfounded each and both pleas, for a declaration and for mandamus. I shall therefore deal with the two separately.
[21] Declaration
The Prothonotary found that there was a justiciable issue with respect to the recourse policy implemented by the appellant. The appellant requested the Prothonotary to summarily dismiss the applicant's application for a declaration. I agree with the Prothonotary that an application may be summarily dismissed by the Court but a very high threshold has been set for such a dismissal. In David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., supra, the Federal Court of Appeal set a very high threshold for striking an application. At page 600, Strayer J.A. wrote for the Court:
For these reasons we are satisfied that the Trial Judge properly declined to make an order striking out, under Rule 419 or by means of the "gap" rule, as if this were an action. This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion.
[22] The Prothonotary pointed out that the applicant in its application has raised the point that the Public Service Commission can, pursuant to subsection 56(2) of the CCRAA periodically review the compatibility of the principles governing the Agency's staffing program with those governing staffing under the PSEA. Does this suggest that the Agency's recourse policy should be somewhat similar to the PSEA model? The Prothonotary did not need to make a decision on this point, but in my opinion, this issue alone points to the existence of a justiciable issue. As a result, the application is "not so clearly improper as to be bereft of any possibility of success" (David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., supra). This issue should be determined by the Judge hearing the application. Accordingly, I would exercise my discretion and not allow the motion to summarily dismiss the application on this ground. The CCRA argued that the application of PIPSC should fail as there is an adequate alternative remedy available by way of applications for judicial review in respect of specific decisions. I do not agree as in this case it is the process itself that is in question.
[23] Mandamus
The Prothonotary stated in paragraphs 35 and 37 of the decision:
I am able to find one standard which PIPSC has clearly not met. It has not demanded or been refused compliance with the statute. While the jurisprudence is clear that the criteria that have to be met are cumulative, in my view, that failure alone cannot be a basis for striking the plea for mandamus.
Indeed, whatever the union's chances of success in securing relief by way of mandamus, I cannot conclude that it must inexorably fail and accordingly decline to dismiss the plea for mandamus. I am also persuaded, taking the application as a whole, that it is inappropriate to do so having found that the underlying prayer for a declaration raises a justiciable issue for determination on the merits.
[24] I have reviewed the material and can find no evidence of a demand to CCRA by PIPSC to implement a plan that meets the requirements of subsection 54(1) of the CCRAA. The Federal Court of Appeal in Apotex Inc. v. Canada (Attorney General) [1994] 1 F.C. 742 (F.C.A.) stated at page 767 when discussing the principles applicable to the granting of mandamus:
There is a clear right to performance of that duty, in particular . . .
there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay; see O'Grady v. Whyte, supra, citing Karavos v. Toronto & Gillies, supra; Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315 (T.D.); and Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), supra.
[25] In exercising my discretion de novo, I do not agree with the Prothonotary's finding. I have come to the conclusion that paragraph 2 of the applicant's application requesting a mandamus requiring the Agency to implement a staffing recourse system in accordance with the requirements of subsection 54(1) of the CCRAA, must be dismissed. Since no demand has been made to the Agency, this part of the application is as stated in David Bull, supra, "so clearly improper as to be bereft of any possibility of success".
[26] Standing
I have reviewed the Prothonotary's finding with respect to standing and I would exercise my discretion in the same manner as she did. This is not a matter which should be determined on a preliminary motion such as the present motion. PIPSC has made arguments with respect to standing that are arguments which properly should be heard by the Judge hearing the application. This argument is not "bereft of any possibility of success" (David Bull, supra).
[27] Time-barred
The Prothonotary ruled that the issue of whether or not the application was time-barred should be determined as part of the hearing of the main application. I would exercise my discretion in the same manner as the applicant's arguments in this respect, are not "bereft of any possibility of success" (David Bull, supra).
[28] Rule 301(e) Particulars of Grounds
In the alternative, the Agency requested that the applicant be required to comply with Rule 301(e) of the Federal Court Rules, 1998 by providing a complete and concise statement of the grounds to be argued. The Prothonotary found that such a motion was unavailable in the context of a judicial review application. I agree with the Prothonotary's reasoning for this conclusion and would exercise my discretion in the same manner. It may be that the decision on this issue may not require me to exercise my discretion de novo but I have done so since this issue is part of the same motion.
[29] Extension of Time to Serve and File the Respondent's Affidavit Evidence
The Prothonotary extended the time within which the Agency may serve and file its supporting affidavits to 30 days after the date of her order. I would grant the same extension after the date of my order.
[30] The Agency's appeal is allowed with respect to the request to dismiss the order for mandamus but dismissed with respect to the request to dismiss the application for a declaration, to dismiss for lack of standing and to dismiss because of timeliness. The appeal with respect to the request for particulars pursuant to Rule 301(e) of the Federal Court Rules, 1998 is also dismissed.
[31] Each party requested its costs of the appeal, but since success is divided, I am not prepared to make any award of costs.
ORDER
IT IS ORDERED that:
1. The Agency's appeal of the Prothonotary's order to dismiss the Agency's motion to dismiss the applicant's application for a declaration is dismissed.
2. The Agency's appeal of the Prothonotary's order to dismiss the Agency's motion to dismiss the applicant's application for an order in the nature of mandamus is allowed.
3. The Agency's appeal of the Prothonotary's order to dismiss the Agency's motion to dismiss the applicant's application for lack of standing is dismissed.
4. The Agency's appeal of the Prothonotary's order to dismiss the Agency's motion to dismiss the applicant's application for timeliness is dismissed.
5. The Agency's appeal of the Prothonotary's order to dismiss the Agency's motion for an order requiring the applicant to provide particulars of the grounds of its application pursuant to Rule 301(e) of the Federal Court Rules, 1998 is dismissed.
6. The time within which the Agency may serve and file its supporting affidavits is extended to 30 days after the date of this order.
7. There shall be no order as to costs of the appeal as success of the appeal is divided.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
January 30, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-598-00
STYLE OF CAUSE: PROFESSIONAL INSTITUTE OF THE PUBLIC
SERVICE OF CANADA
- and -
CANADA CUSTOMS AND REVENUE AGENCY
- and -
PUBLIC SERVICE ALLIANCE OF CANADA
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: MONDAY, OCTOBER 1, 2001
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: WEDNESDAY, JANUARY 30, 2002
APPEARANCES:
Mr. Dougald Brown
FOR APPLICANT
Mr. J. Sanderson Graham
FOR RESPONDENT
No Appearance
FOR INTERVENER
SOLICITORS OF RECORD:
Nelligan O'Brien Payne LLP
1900 - 66 Slater Street
Ottawa, Ontario
K1P 5H1
FOR APPLICANT
Department of Justice
Second Floor, 284 Wellington Street
Ottawa, Ontario
K1A 0H8
FOR RESPONDENT
Raven, Allen, Cameron & Ballantyne
1600 - 220 Laurier Avenue West
Ottawa, Ontario
K1P 5Z9
FOR INTERVENER
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020130
Docket: T-598-00
BETWEEN:
PROFESSIONAL INSTITUTE OF THE
PUBLIC SERVICE OF CANADA
Applicant
- and -
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
- and -
PUBLIC SERVICE ALLIANCE OF CANADA
Intervener
REASONS FOR ORDER AND ORDER