Ottawa, Ontario, June 19, 2006
PRESENT: The Honourable Madam Justice Hansen
BETWEEN:
and
REASONS FOR ORDER AND ORDER
Introduction
[1] This application for judicial review concerns the Public Service Commission's (Commission) jurisdiction to investigate the Applicant's appointments to executive positions, EX-01 and EX-02, after his retirement from the public service.
Facts
[2] On May 7, 2002, the Commission appointed the Applicant from an AS-08 position to the position of Special Advisor to the Commissioner with the Privacy Commissioner of Canada (OPC), at the EX-01 level, effective October 1, 2001.
[3] On November 7, 2002, as a result of the reclassification of the Applicant's position as Chief of Staff/Senior Advisor, the Applicant was promoted to the EX-02 level, effective September 1, 2002.
[4] The Applicant retired from the public service on July 31, 2003.
[5] In the spring of 2003, the House of Commons Standing Committee on Government Operations and Estimates (the Committee) held a series of hearings in relation to the OPC. As a result of these hearings, in June 2003, the Committee asked the Auditor General of Canada to audit the OPC and, among other things, review executive staffing at the OPC.
[6] As well, the Committee requested that the Commission undertake an investigation. In a letter addressed to the President of the Commission dated June 20, 2003, the Chair of the Committee wrote, in part:
The Committee is concerned that the Commissioner and/or other officials in the Office [of the Privacy Commissioner] may not have observed the duties and responsibilities incumbent upon them by virtue of the Public Service Employment Act, R.S.C. 1985, c. P-33 (PSEA) as amended. In particular, it would like to determine whether the staffing, appointment and promotion processes in the Office are in accordance with the law particularly in respect of positions in the EX category. This may include ... lateral and upward movement within the Office.
In order to assist the Committee in better understanding whether the human resources management of the Office has been conducted in the public interest, the Committee requests that the Public Service Commission (PSC) investigate whether the management of staffing has been conducted in accordance with the PSEA, and whether the values underlying this legislation, in particular the merit principle, have been respected, and report its findings, conclusions and recommendations.
(Affidavit of Andrée Dubois, Exhibit B)
[7] In July 2003, in response to the Committee's request and to address concerns raised in an earlier review and assessment of the OPC by the Commission, the Commission initiated an audit into staffing practices at the OPC.
[8] In a letter dated September 25, 2003, the Commission advised the Applicant that pursuant to section 7.1 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (PSEA), it would conduct an investigation into the Applicant's "successive appointments in the EX group". As well, "[t]he investigation will specifically look at indications that the OPC did not respect the requirements of the Public Service Commission (PSC) to carry out such appointments under the PSC delegated authority." (Affidavit of Arthur Lamarche, Exhibit F) The Applicant was informed he could consult the Commission's Investigations Practices and Procedures Guide (the Guide) on the Commission's website should he require further information on the investigation process. He was also told an investigator would be contacting him to schedule a "fact-finding meeting". The file number on this letter is 03-IPC-0498 (the first investigation).
[9] By another letter dated September 25, 2003, the Commission informed the Applicant that it intended to conduct an investigation, pursuant to section 7.1 of the PSEA, "into staffing practices" at the OPC and that the investigation would draw on the results of the Commission's audit of the OPC. In particular, the Applicant was informed that the Recourse Branch would look at:
- respect of the Public Service Employment Act and the Staffing Delegation Framework;
- compliance with the merit principle in the use of staffing strategies: competitions, reclassifications, casual employment;
- adherence to staffing values (transparency, access, fairness, competency, representativeness, non-partisanship) in staffing actions.
(Cross-examination of Andrée Dubois held on May 19, 2004, Exhibit 1)
[10] The Applicant was advised that the designated investigator would interview the Applicant as a witness and review staffing files to identify wrongdoings and responsible individuals. The file number for this investigation is 03-IPC-0508 (the second investigation).
[11] In the Auditor General's "Report on the Office of the Privacy Commissioner of Canada" dated September 30, 2003, she recommended, in part, that the "Commission should review all staffing decisions made at the Office of the Privacy Commissioner between September 2000 and June 2003 and should correct faulty decisions where necessary" (Affidavit of Andrée Dubois, Exhibit A).
[12] In its report "Public Service Commission Audit of the Office of the Privacy Commissioner" dated September 2003, the Commission concluded that the "PSC establish immediately boards of inquiry or investigations to determine whether executive staffing actions should be revoked and/or to recommend appropriate corrective measures" (Affidavit of Andrée Dubois, Exhibit D).
[13] On October 8, 2003, the Vice-President of the Commission established Boards of Inquiry for eight files. The Applicant's case was one of the eight files announced in the notice of "Establishment of Boards of Inquiry Pursuant to s. 6(3) PSEA" (the notice). In particular, the notice stated:
The Boards of Inquiry will be conducted pursuant to s. 6(3) PSEA by each of the investigator assigned to the above-mentioned cases.
Should the Boards of Inquiry determine that a person was not qualified for the position to which he or she was appointed, they will recommend whether the appointment should be revoked pursuant to s. 6(2) PSEA.
Should the Boards of Inquiry recommend that the appointment be revoked, they will recommend whether the person should be appointed to another position commensurate with his or her qualifications.
The Boards of Inquiry will only exercise this delegation of authority in cases where, in the course of their investigation under s. 7.1 PSEA, the evidence demonstrates that the revocation of an appointment could constitute an appropriate corrective measure.
(Affidavit of Yves Nadeau, Exhibit A2)
[14] On the same day, the Commission advised the Applicant that subsequent to its letter of September 25, 2003 regarding the first investigation, the Commission had received new information warranting a modification to the scope of the investigation and that the mandate of the investigator would now include his appointment following the reclassification of his AS-08 position.
[15] On October 9, 2003, the Commission informed the Applicant that the investigator would conduct a fact-finding meeting.
[16] On November 13, 2003, the Applicant's counsel wrote to the Commission questioning the Commission's jurisdiction to conduct the investigation.
[17] On November 21, 2003, the investigator wrote to the Applicant informing him that she had been assigned under section 7.1 of the PSEA to investigate both of his appointments at the OPC and that she would be holding a fact-finding meeting. She advised the Applicant that in her investigation she would examine the following issues:
1. Appointment following the reclassification of your AS-08 position to EX-01:
- whether the reference checks conducted by the selection board were sufficient and appropriate to assess your qualifications.
- In the negative, whether additional reference checks with past supervisors should have been made.
2. Appointment following the reclassification of your position to the EX-02:
- whether your appointment was made in accordance with the terms and conditions of the Staffing Delegation and Accountability Agreement and more specifically, whether the prescribed attestation was duly completed and sent to the Public Service Commission and whether you had occupied your position for a period of six months prior to its reclassification.
(Affidavit of Yves Nadeau, Exhibit A8)
In the same letter, the investigator also wrote:
I foresee two possibilities in terms of conclusion: 1) that I find no problem of any substance and the file is closed without further intervention; 2) that one or more of the appointments if found to contravene the merit principle and/or the terms and conditions of the staffing delegation.
In the case of the second possible conclusion mentioned above, I may recommend that corrective actions be taken and/or exercise the authority conferred to me under section 6(3) of the Public Service Employment Act, which allows for a Board of Inquiry to recommend to the Public Service Commission the revocation of an appointment for either of two reasons: that the incumbent of a position does not have the qualifications necessary to perform the duties of their position, or that the appointment was made in contravention of the terms and conditions under which the appointment authority was granted. You will be given an opportunity to be heard if it becomes necessary to conduct such a procedure.
It must be noted that the Commission retains authority for the decision regarding a possible revocation. In this case, a report would be sent to the parties only after the Commission has made its decision.
(Affidavit of Yves Nadeau, Exhibit A8)
[18] The fact-finding meeting was held on January 14, 2004. Both the Applicant and his counsel attended the meeting. At the fact-finding meeting, the Applicant's counsel asserted that the investigator did not have the jurisdiction to deal with the matter because the Applicant was no longer a public service employee and because the investigator was an employee of the Commission, the investigator could be considered biased. The investigator concluded that she would continue the fact-finding meeting and warned the Applicant that she would proceed with the matter in his absence. The Applicant's counsel advised the investigator that the Applicant would not proceed and left the room. The investigator decided to continue with the fact-finding meeting in their absence.
[19] In her "Investigation Case Report" dated February 24, 2004, the investigator described "the present case ... [as] one of the nine cases identified by the Commission for investigation in their response to the Auditor General's report" and that the investigation concerned the Applicant's two appointments at the OPC. (Affidavit of Yves Nadeau, Exhibit A11)
[20] With respect to her jurisdiction, the investigator concluded at paragraph 33 of her report the following:
... in my view, the jurisdiction of the Commission under 7.1 of the PSEA is not determined by the status of employment of person whose appointment is being investigated at the time that the investigation is being conducted. On the contrary, the Commission will have the authority to investigate a given case if, at the time when the events and/or decisions being investigated occurred and/or were made, the matter was within its jurisdiction.
(Affidavit of Yves Nadeau, Exhibit A11)
[21] Although the investigator completed her investigation and prepared an investigation report, only those portions of the report in relation to the jurisdictional issue raised by the Applicant are contained in the record on this judicial review.
The Relevant Statutory Provisions
[22] The following is a brief review of the relevant statutory provisions. Only those portions of the provisions pertinent to this discussion are included.
[23] The Commission is mandated and has the exclusive authority, subject to certain statutory exceptions, to make appointments to the public service (sections 5(a) and 8).
[24] Section 7.1 gives the Commission the discretionary power to "conduct investigations and audits on any matter within its jurisdiction." For the purposes of any investigation or report, the Commission has the powers of a commissioner under the Inquiries Act (section 7.2). On the basis of any investigation, report or audit, the Commission may take or order a deputy head to take appropriate corrective action (section 7.5).
[25] The Commission's authority to appoint may also be delegated to a deputy head (subsection 6(1)). Where the Commission is of the opinion that a person who has been appointed pursuant to this delegated authority does not have the qualifications to perform the duties of the position or the appointment is in contravention of the terms and conditions under which the authority was granted, the Commission shall revoke the appointment and may appoint the person at a level commensurate with the individuals qualifications (paragraphs 6(2)(a)(b)). However, the Commission may only revoke the appointment on the recommendation of a board established to conduct an inquiry at which the employee and the deputy head or their representatives are given an opportunity to be heard (subsection 6(3)).
[26] The PSEA applies to all employees (section 48). An employee is a person employed in a part of the public service to which the Commission has the exclusive authority to appoint persons (subsection 2(1)). A person ceases to be an employee on the day as of which a deputy head accepts the persons resignation (section 26).
Issue #1
[27] Was the Commission without jurisdiction because it was out of time to conduct an investigation of an individual complaint?
[28] As this issue was not raised by the Applicant at the January 2004 fact-finding meeting, the investigator did not deal with it in her investigation report. Although the Respondent objected to this issue being raised on judicial review, the Respondent did make submissions on the issue. For the sake of completeness, I will address the argument.
[29] The Applicant relies on a statement in the Recourse Branch's Guide that the Commission will not investigate individual matters where the matter is not raised within three months or in exceptional cases six months of the date on which the defect occurred. Since the appointments in the present case were made on May 7, 2002 and November 7, 2002 and the investigation was commenced on September 25, 2003 and, in fact, was not contemplated before July or August of 2003, the Commission was out of time having regard to its own policy. In advancing this argument, the Applicant maintains that while the second investigation was systemic in nature, the first investigation was an individual investigation. The Applicant maintains that this distinction is evident from a comparison of the contents of the two notices of the investigations. For example, in the notice of the first investigation it states that it is in relation to "your successive appointments". The notice of the second investigation refers to "staffing practices" at the OPC.
[30] In my opinion, the Applicant's argument cannot succeed. According to the Applicant there are only two types of investigations contemplated in the Guide, individual and systemic. However, in section 2.3, the Guide describes three situations where the Commission could exercise its discretionary power to investigate: first, "individual matters based on complaints filed by public servants and/or members of the public concerning the application of the PSEA and PSER;" second, ... "systemic issues based on a request from a department or union;" third... "matters on its own initiative based on information brought to its attention." The requirement that the matter be raised with the Commission within three or six months exists only in relation to the first situation. The distinctive feature in comparison to the second and third situations is that it is complaint driven.
[31] In this context, I do not interpret investigations of "individual matters" to mean investigations where particular individuals are the targets of the investigations. In my view, it means investigations of specific (individual) instances involving an alleged defect in the application of the PSEA. The investigation seeks to determine whether there has been a misapplication of the legislation. It is not aimed at the individual candidates for a position although there may be consequences in relation to specific individuals as result of the investigation.
[32] On the record before me, the investigations of the Applicant's two appointments were not initiated by a complaint instead they appear to have been generated as a result of information arising in the course of the broader audits and investigations by the Auditor General and the Commission itself. Based on the record, I conclude that the first investigation was not an "individual" investigation as contemplated in the Guide. Having reached this conclusion, it is unnecessary to consider the Applicant's argument as to whether the Commission was bound by the time frames set out in the Guide.
Issue #2
[33] Did the Commission have the jurisdiction to conduct the first investigation, that is, to investigate staffing actions relating to the Applicant after his retirement?
[34] The Applicant submits that the Commission does not have jurisdiction over former employees. The Applicant contends that since the PSEA applies to all employees and the Applicant ceased to be an employee as defined in the PSEA on the effective date of his resignation, the Act no longer applied to him at the time the first investigation was undertaken. Thus, the Commission did not have the jurisdiction to conduct the investigation.
[35] In support of his argument, the Applicant relies on three decisions. First, in Canada(Commissioner of the Royal Canadian Mounted Police) (Re), [1993] 2 F.C. 351 (FCTD), affirmed [1994] 3. F.C. 562 (FCA), the Court held that a complaint about the conduct of a person who had retired from the RCMP prior to the initiation of a complaint was excluded from the authority of the Commissioner to investigate.
[36] Second, in Chalmers v. Toronto Stock Exchange (1989), 70 O.R. (2d) 532 (C.A.), the Court of Appeal for Ontario concluded that where the Toronto Stock Exchange Act, 1982, S.O. 1982, c. 27, gave the Toronto Stock Exchange jurisdiction over members and employees but not former members and employees, a by-law stating that the TSE retained jurisdiction over persons that had ceased to be under its jurisdiction was ultra vires.
[37] Third, in Maurice v. Priel, [1989] 1 S.C.R. 1023, the Supreme Court of Canada held that the fact a person was a member of the Law Society of Saskatchewan at the time of alleged misconduct was not sufficient to give the discipline committee jurisdiction to proceed with a hearing when the person was no longer a member.
[38] The Respondent submits that section 7.1. of the PSEA should be interpreted in light of the legislative context in which it arises, namely a broad spectrum of supervision, review, investigation, and remedial mechanisms concerning appointment and promotion under the Act. The Respondent argues that the legislation is intended to ensure the maintenance of a fair, merit-based system of employment within the public service; as such, it contemplates investigations concerning positions whose holders have left the public service.
[39] Since the Commission has the authority to make appointments such as those afforded to the Applicant, it is clearly within the Commission's jurisdiction to investigate the staffing practices in relation to appointments. The Respondent also points out that even though the Commission may delegate its authority to appoint to a deputy head, the Commission still retains all authority to review and correct any appointment made pursuant to the delegated authority.
[40] The fact that the investigation might relate to an appointment of a person who is no longer in the public service is merely of incidental effect. In other words, the status of employment of the person whose appointment is being investigated at the time the investigation is being conducted is not determinative, rather it is whether the event being investigated is one that is within its jurisdiction. In the present case, the Applicant was an employee at the time he was reclassified and appointed.
[41] The Respondent contends that an investigation under section 7.1 is inquisitorial in nature and does not give rise to a binding decision. Further, the Respondent argues that Commission's power under section 7.5 of the PSEA to take or order a deputy head to take appropriate corrective action and any impact it might have on the Applicant who has resigned is not in issue since this particular provision was not engaged.
[42] The Respondent relies on Lo v. Canada(Public Service Commission Appeal Board) (1997) 222 N.R. 393 (F.C.T.D.) for the proposition that the Commission's powers are unconstrained by the fact that the person whose position is being investigated has retired or resigned.
[43] With respect to the standard of review, the Applicant takes the position that since the Commission's jurisdiction is at issue, a question of law, the decision should be reviewed on a standard of correctness. However, the Applicant did not ground his position with a pragmatic and functional analysis in relation to the question before the Court. The Respondent did not make any submissions regarding the standard of review.
[44] In Davies v. Canada(Attorney Genreal), [2005] FCA 41, the jurisdiction of an Appeal Board established pursuant to section 21 of the PSEA was at issue. Following a pragmatic and functional analysis, Chief Justice Richard concluded that the appropriate standard of review of the Appeal Board's decision on questions relating to its jurisdiction was correctness.
[45] Although it is the Commission's jurisdiction to investigate that is at issue in the present case, in my opinion, the Chief Justice's analysis of the four factors in Davies is applicable to the present case. Accordingly, I conclude that on the question of the Commission's jurisdiction to investigate at issue in the present case should be reviewed on a standard of correctness.
[46] In my view, the jurisprudence on which the Applicant relies is not applicable to the facts in this case. Those authorities concerned the interpretation of statutory provisions, unlike those in the present case, in the context of disciplinary investigations into the conduct of specific individuals.
[47] With regard to the Respondent's reliance on the decision in Lo, that decision is distinguishable on its facts and is not helpful to a resolution of the issue in this case. In Lo, an unsuccessful applicant appealed a selection process under section 21 of the PSEA. The first Appeal Board dismissed the appeal. The subsequent judicial review was allowed by the Federal Court and the matter was remitted for reconsideration. Justice Pinard found that the Appeal Board failed in its duty to determine whether the merit principle had been observed in the selection of the successful candidates. Prior to the appeal being heard by the second Appeal Board, the successful candidate had been transferred to another position and had retired. Relying on Noël v. Canada(Minister of Employment and Immigration) (1991), 136 N.R. 398 (FCA), the Appeal Board concluded that the appeal against the appointment of the successful candidate was moot.
[48] In Lo, Justice Gibson found that the Board erred in law in relying on the Noël decision. He noted that at the time Noël was decided the only options available to the Board were to confirm or revoke an appointment already made or make or not make an appointment that had not been made. He concluded that after section 21 was amended by adding subsection 21(3) authorizing the Commission to take the measures necessary to remedy a defect the process identified by the Board, the fact that the successful candidate had transferred and subsequently resigned did not render the Commission powerless to take corrective action.
[49] On appeal, Justice Desjardins upheld Justice Gibson's determination that the matter was not moot and should be remitted for a rehearing. Justice Desjardins found that the decision in Noël was distinguishable since in that case there was no longer an appointment, no revocation of the appointment was possible and, accordingly, the section 21 appeal process was not the appropriate remedy. In contrast, in the case before her, Justice Desjardins stated at paragraph 12:
In the case at bar, an appointment was made and, although the incumbent has left that position and the public service itself, the contested appointment has not been revoked by the Commission and ought to be dealt with. It would be too easy for a department or an appointee to avoid the appeal process and prevent an inquiry as to whether the merit principle has been respected in the selection process by simply moving to another position.
[50] However, this observation on which the Respondent relies has to be considered in light of Justice Desjardins' comments in the next paragraph of her reasons and the particular facts of that case. She stated at paragraph 13:
The Board was bound by the decision of Pinard J. who had found that the appointment of Ms. Steadman contravened the merit principle. The appeal against the appointment of Ms. Steadman should, therefore, have been allowed and the Board should have notified the Commission that, as a result, her appointment should have been revoked pursuant to paragraph 21(2)(a) of the Act.
[51] Therefore, it would appear that Justice Desjardins was referring to that which should have been done by the original Appeal Board at the time the successful candidate still held the position at issue. For this reason, in my view, the decision in Lo is distinguishable from the facts of the present case.
[52] Having said this, I accept the Respondent's argument that the investigation at issue was not an investigation of the Applicant or the conduct of the Applicant. Instead, as reflected in the investigator's letter dated November 21, 2003, it was an investigation of the process and/or the actions of others in relation to the Applicant's two appointments at the OPC. For this reason, with respect to the narrow question of Commission's jurisdiction to initiate an investigation, the fact that the Applicant was no longer an employee at the time the investigation was initiated is not material to the question of the Commission's jurisdiction to investigate under section 7.1 of the PSEA. However, having regard to the potential remedial action available to the Commission as a result of the investigation the Applicant's employment status may well be a relevant consideration.
[53] Although a different section of the PSEA not at issue in this proceeding was considered in Noël and Lepage v. Canada(Attorney General), [1999] F.C.J. No. 481 (FCTD), the analyses in these two cases is helpful. Both cases concerned section 21 of the PSEA which established an appeal process leading to the Commission's confirmation or revocation of a disputed appointment.
[54] In Noël, an Appeal Board established pursuant to section 21 concluded that the applicant's appeal was moot because the impugned acting appointment had been terminated. On judicial review, Justice Décary reviewed the appeal process and observed, based on the text of section 21, that the appeal was against the appointment and that the Commission was bound by the decision of the Appeal Board. Justice Décary framed the question as whether the inquiry conducted by the Appeal Board could be separated from the decision it was mandated to make. In his view, the inquiry and the decision could not be separated since there was no longer an appointment, no confirmation or revocation of the appointment was possible. He concluded that section 21 having ceased to be the appropriate remedy, the Appeal Board correctly terminated the inquiry.
[55] At the time Noël was decided, the only remedies available under section 21 were the confirmation or revocation of an appointment already made or if an appointment had not been made the Commission could make or not make the appointment in accordance with the Board's determination.
[56] Subsequently and prior to the decision in Lepage, section 21 was amended giving the Commission the added authority to take such measures it considers necessary to remedy a defect in the selection process.
[57] In Lepage, an Appeal Board concluded that since the position at issue had been eliminated by the time the applicant's request for an investigation had been rejected, the Appeal Board had no jurisdiction to hear the appeal. On judicial review, the Federal Court, citing the decision in Noël, observed that it was settled law that the appeal process in section 21 had the limited purpose of allowing a person to challenge an appointment made or about to be made. Although subsection 21(3) gave the Commission the power to remedy a defect in the selection process, Justice Rouleau, citing Lo, noted that the subsection does not give the Commission any more power with respect to the appointment. He concluded that because there was no longer an appointment to challenge, the appeal under section 21 had become moot and no remedy under subsection 21(3) was feasible.
[58] In the present case, if the Commission had only exercised its authority to investigate under section 7.1, the remedial measures available to the Commission under section 7.5 would have been to take or order a deputy head to take appropriate corrective action. Quite apart from the issue arising from the fact that the Applicant was no longer an employee, the Commission would have been precluded, by virtue of subsection 6(3), from including as one of the corrective measures the revocation of either of the Applicant's appointments.
[59] However, as related earlier, a Board of Inquiry was established pursuant to subsection 6(2) to investigate both of the Applicant's appointments. The notice states that the Board of Inquiry would only exercise its authority under subsection 6(2) if in the course of the investigation the evidence demonstrated that the revocation of an appointment could be an appropriate corrective measure. In her letter of November 21, 2003, the investigator indicated that in the event that she decided to exercise her authority under subsection 6(2) the Applicant would be given an opportunity to be heard before making a recommendation to the Commission regarding revocation.
[60] Based on the reasoning in Noël, given that there was no longer an appointment to revoke, although it is not necessary to decide the point in the present case, it is arguable that the Commission lacked the jurisdiction to establish the Board of Inquiry or, at a minimum, any determination made by the Board would be moot. Given the establishment of a Board of Inquiry within the context of the investigation, the question remains whether the role or function of the Board of Inquiry can be separated from the broader investigation under section 7.1. In my opinion, it can.
[61] In contrast to the decision in Lepage where there was no longer a feasible remedy available to the Appeal Board, in the present case, the Commission had a range of available corrective measures it could take or direct a deputy head to take that would not involve the revocation of one of the Applicant's appointments or any other adverse consequences for the Applicant. For example, the Commission could direct that human resources employees take specialized training or that staffing policies be reviewed and followed.
[62] For these reasons, I concluded that the investigator's determination that the Commission did have the jurisdiction to conduct the investigation was correct and the application for judicial review is dismissed.
[63] At the request of both parties the issue of costs is reserved.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. The issue of costs is reserved. The Respondent shall have ten days from the date of this Order to serve and file its submissions on costs. The Applicant shall have ten days from the date of being served with the Respondent's submissions to serve and file his submissions. The Respondent shall have three days to serve and file any reply submissions.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-299-04
STYLE OF CAUSE: ARTHUR J.M. LAMARCHE
v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: March 6, 2006
APPEARANCES:
| MR. JOHN M. CONNOLLY
|
|
| MR. R. JEFF ANDERSON
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
| CONNOLLY, NICHOLS, ALLAN & CARROLL LLP OTTAWA, ONTARIO
|
|
| MR. JOHN H. SIMS DEPUTY ATTORNEY GENERAL OF CANADA OTTAWA, ONTARIO |
FOR THE RESPONDENT, |