T-2305-01
2002 FCT 1151
Hensley Oriji (Applicant)
v.
Attorney General of Canada (Respondent)
Indexed as: Oriji v. Canada (Attorney General) (T.D.)
Trial Division, Gibson J.--Ottawa, October 30 and November 7, 2002.
Public Service -- Selection Process -- Applicant orally notified only successful candidate in competition, given anticipated starting date for employment, but later told position offered to qualified surplus employee in Department -- Investigating officer erred in law in concluding Public Service Employment Act, s. 22 requiring document for offer of employment to be enforceable -- Investigating officer also failed to meet minimal fairness standard as not all information made available to complainant.
Administrative Law -- Judicial Review -- In matter of complaint as to treatment in employment process within Public Service, investigating officer erred in law in concluding Public Service Employment Act, s. 22 requiring document for offer of employment to be enforceable, failed to meet minimal fairness standard as not all information made available to complainant -- Respondent's argument decision should not be set aside as any new investigation would inevitably arrive at same result not convincing as applicant not conceding result would be same -- Furthermore, to allow such egregious breach might encourage others to disregard duty to act fairly in circumstances where result seemingly pre-ordained.
Construction of Statutes -- Public Service Employment Act, s. 22 not requiring document for offer of employment to be enforceable -- Provision speaking only to effective date of employment rather than to enforceability of employment arrangement based on accepted offer, whether verbal or written, and to employment that has commenced where such valid offer, acceptance exchanged.
Following completion of an examination for a Public Service position with Public Works and Government Services Canada (PWGSC), the applicant was advised by telephone that he had achieved the highest mark and that he was the only successful candidate. He was told that the anticipated starting date for employment would be early April 2001. However, the applicant was later advised that the position was no longer available due to a priority staffing action. The issue was whether the applicant had been offered the position subject to a language test and verification of references, or whether the offer of the position was circumscribed by other conditions.
The applicant complained that PWGSC had, without justification, rescinded its verbal offer of employment, and an investigation was initiated by a designated investigating officer. Some of the information provided to and considered by the investigating officer was not made available to the applicant. He was provided no opportunity to reply to that information, and his request for an adjournment of the fact-finding meeting in order to try to rebut the new evidence presented was rejected. The investigating officer dismissed the complaint on the basis of section 22 of the Public Service Employment Act (PSEA), which he interpreted as requiring a written offer of employment--and there was none herein--and on the ground that the manager who communicated with the applicant did not have the proper authority to authorize employment. This was an applicat ion for judicial review of the investigating officer's decision.
Held, the application should be allowed.
Section 22 of the PSEA provides that an appointment under that Act takes effect on the date specified in the instrument of appointment, which may be any date before, on or after the date of the instrument. The only reasonable interpretation in law of that section is that it speaks only to the "effective date" of an employment rather than to the enforceability of an employment arrangement based on an offer, whether verbal or written, that has been accepted and, in particular but not exclusively, to employment that has commenced where such a valid offer and acceptance have been exchanged. The conclusion that a document was required for an offer of employment was perverse and the investigating officer erred in law in arriving at the decision herein.
On a reading of the relevant provisions of the PSEA, an investigating officer must act fairly. At a minimum, an investigating officer has a duty to ensure that all of the information on which a decision is based is made available to the complainant and the respondent and that each is given a reasonable opportunity to respond to that information. The investigating officer failed to meet this minimal fairness standard.
The respondent urged that even if there were reviewable errors in the process leading to the decision under review, it should not be set aside because any new investigation would inevitably arrive at the same result, and referred to Talwar v. Canada (Minister of Citizenship and Immigration) in support. That case should not be followed. The applicant did not concede that, if the decision under review were referred back for reconsideration, the result would ultimately be the same. Furthermore, to allow such an egregious breach of the duty to act fairly to go without remedy might well encourage others to disregard the duty to act fairly in circumstances where they might be of the view that the result is pre-ordained.
statutes and regulations judicially
considered
Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 7.1 (as enacted by S.C. 1992, c. 54, s. 8), 7.2 (as enacted idem), 7.3(1) (as enacted idem), (3) (as enacted idem), 22 (as am. idem, s. 17).
cases judicially considered
not followed:
Talwar v. Canada (Minister of Citizenship and Immigration), 2002 FCT 702; [2002] F.C.J. No. 951 (T.D.) (QL).
APPLICATION for judicial review of an investigating officer's decision dismissal of a complaint by the applicant as to his treatment in an employment process within the Public Service of Canada. Application allowed.
appearances:
Hensley Oriji on his own behalf.
Michael G. Roach for respondent.
solicitors of record:
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Gibson J.:
INTRODUCTION
[1]Mr. Hensley Oriji (the applicant) seeks judicial review of a decision of an investigations/mediation/ conciliation officer in the Recourse Branch of the Public Service Commission of Canada wherein the officer concluded that an allegation raised in a complaint by the applicant as to his treatment in an employment process within the Public Service of Canada was unfounded. The decision under review is dated November 23, 2001.
[2]The applicant, in his own words, seeks the following reliefs:
[that] this Court . . . renounce this injustice by allowing this appeal with costs;
[that this Court] validate the job offer made to the Applicant, effective April 2, 2002;
Any other orders which this Court finds appropriate.1
BACKGROUND
[3]While the details of the factual background to this application for judicial review are in substantial dispute, the basic elements leading to the decision under review can be briefly stated and are here drawn primarily from the respondent's memorandum of fact and law.
[4]The applicant was one of sixteen people whose names were referred by the Public Service Commission for a CR-04 Systems and Accounting Clerk position at Public Works and Government Services Canada (PWGSC). On February 6, 2001, the applicant and others among the people whose names were referred attended a written examination which tested the abilities identified in the statement of qualifications for the position in question. Prior to the commencement of the examination, the applicant and those others who sat the examination were advised that the person who received the highest mark would be contacted and that the successful candidate would be required to pass a language test before an appointment would be made. Following completion of the examination, and on the same day on which it was held, an official in PWGSC advised the applicant by telephone that he had achieved the highest mark on the written examination and that, indeed, he was the only person who sat the examination who was successful. At the heart of the dispute is whether he was there and then offered the position subject to a language test and verification of references, or whether the offer of the position was circumscribed by other conditions. Beyond question was the fact that the applicant was advised that the anticipated starting date for employment would be in early April 2001 with the specific date dependent upon the timing of the completion of a language test. The applicant emphasizes that he regarded the information conveyed to him in the telephone conversation as constituting an offer of employment which he accepted during the telephone conversation.
[5]On March 26, 2001, an officer of PWGSC other than the officer who spoke with the applicant on February 6, advised the applicant, once again by telephone conversation, that the position in question was no longer available due to a priority staffing action. The position in question was staffed by an allegedly qualified employee who was to be declared surplus from another component of PWGSC.
[6]The applicant complained. The essence of his complaint was to the effect that PWGSC had, without justification, rescinded its verbal offer to the applicant of employment for a specified period to the position of Systems and Accounting Clerk (CR-04).
[7]An investigation of the applicant's complaint was initiated by a designated investigating officer under the authority of section 7.1 [as enacted by S.C. 1992, c. 54, s. 8] of the Public Service Employment Act.2 That section, related section 7.2 [as enacted idem] and subsections 7.3(1) [as enacted idem] and (3) [as enacted idem] read as follows:
7.1 The Commission may conduct investigations and audits on any matter within its jurisdiction.
7.2 In connection with and for the purposes of any investigation or report, other than an audit, by the Commission under this Act, the Commission has all the powers of a commissioner under Part II of the Inquiries Act.
7.3 (1) The Commission may direct that any investigation, report or audit by the Commission under this Act be conducted or made, in whole or in part, by a commissioner or any other person.
. . .
(3) Where the Commission, pursuant to subsection (1), directs that an investigation or report be conducted or made by a person, other than a commissioner, that person, subject to such restrictions or limitations as the Commission may specify, has, in relation to the matter before the person, the powers referred to in section 7.2.
THE DECISION UNDER REVIEW
[8]The investigating officer convened a "fact-finding" meeting on September 24, 2001. The applicant and four representatives on behalf of PWGSC attended. The investigating officer wrote at paragraph 4 of her decision report:
All submissions and information provided, although not necessarily reproduced here, [in the report] were given consideration in leading to the analysis and conclusions found within this report.
The information provided, and referred to in the foregoing quotation, included information provided to the investigating officer by officers of PWGSC, at the fact-finding meeting and after it was terminated, which, and this was not in dispute before me, was not made available to the applicant and to which he was therefore provided no opportunity to reply.
[9]When the applicant heard the evidence provided by officers of PWGSC at the fact-finding meeting, evidence which in part came as a complete surprise to the applicant and was contrary to his understanding of what had transpired, the applicant sought an adjournment of the fact-finding meeting in order to allow him to return with witnesses who, he alleged, could rebut the evidence on behalf of PWGSC. His request for an adjournment was rejected.
[10]Finally, the investigating officer interpreted section 22 [as am. by S.C. 1992, c. 54, s. 17] of the Public Service Employment Act. That section reads as follows:
22. An appointment under this Act takes effect on the date specified in the instrument of appointment, which date may be any date before, on or after the date of the instrument.
[11]By reference to the terminology of section 22, the investigating officer wrote:
The expression "instrument of appointment" is not defined in the Act, and the Courts have not interpreted the term either. However, reading the word "instrument" in its grammatical and ordinary sense, within the context of the Act, a Court would likely interpret section 22 [as] requiring a document. Blacks' Law Dictionary defines the word "instrument" as follows: "A written document that defines rights, duties, entitlements, or liabilities, such as a contract, will, promissory note, or share certificate."
For these reasons I conclude that a document is required for an offer of employment or appointment to be enforceable. No such document exists in the present case. Although it is common ground in contract law that an offer of employment, even verbal, once accepted, does constitute a binding contract, this case is a illustrative of a situation in which statutory law takes precedence over common law. [Emphasis in original.]
[12]The investigating officer concluded in the following terms:
There is also the issue of the proper authority. According to the department's instrument of subdelegation of staffing authority, Ms. Diotte, is a "Level 5" manager and does not possess the authority to authorize appointments.
As there was no offer of employment made in the proper form and by the proper authority, I conclude that the allegation raised in this complaint is unfounded.
THE ISSUES
[13]While the applicant raised a range of issues on this application for judicial review, I am satisfied that two are determinative and that I need not turn to the others. The two that I consider to be determinative are error of law and failure to comply with the duty of fairness incumbent upon an investigating officer when investigating a complaint such as that underlying the decision here under review. A third issue, regarding an appropriate remedy, if any, arises by reason of my conclusions regarding the first two.
ANALYSIS
| (a) Error of law |
[14]Section 22 of the Public Service Employment Act, earlier quoted, provides that an appointment under that Act only takes effect on the date specified in the instrument of appointment. It goes on to specify that the date specified may be any date before, on or after the date of the instrument of appointment. Thus, an appointment can have been taken up and pursued for an unlimited period of time before an instrument of appointment is issued. In such circumstances, for the investigating officer to conclude that "a document is required for an offer of employment or appointment to be enforceable" [underlining added] is, I am satisfied, perverse. It is, in fact, to conclude that employment that has commenced, with the consent of the employer as well as the consent of the employee, might well be not valid employment because, so the argument would have to go, no valid offer of employment had been made and accepted.
[15]I conclude that the only reasonable interpretation in law of section 22 is that it speaks only to the "effective date" of an employment rather than to the enforceability of an employment arrangement based on an offer, whether verbal or written, that has been accepted and, in particular but not exclusively, to employment that has commenced where such a valid offer and acceptance have been exchanged. I conclude that the investigating officer erred in law in arriving at the decision under review.
| (b) Duty of fairness |
[16]There can be no doubt, I am satisfied, on a reading of the relevant provisions of Public Service Employment Act, that an investigating officer, such as the officer whose decision is here under review, must act fairly, albeit that the content of the duty of fairness, given the discretion afforded by statute to the investigating officer, might well be minimal. At a minimum, I interpret the applicable content of the duty of fairness on such an officer as encompassing a duty to ensure that all of the information on which he or she bases her decision has been made available to the complainant and the respondent and that each has been given a reasonable opportunity to respond to that information. On the facts before me, I regard it as beyond question that the investigating officer failed to meet this minimal fairness standard.
[17]It was not in dispute before me that, at the opening of the fact-finding meeting held on September 24, 2001, officers of PWGSC presented to the investigating officer documents that both they and she considered relevant and that were not shared with the applicant. In the absence of sharing, the applicant had no opportunity to respond. Further, at the fact-finding meeting, officers of PWGSC presented oral evidence that contradicted the applicant's understanding of the position of PWGSC that he had gained from telephone conversations with officers of PWGSC and to which he was not prepared, then and there, to respond. As earlier noted, he was denied the opportunity of an adjournment in order to marshall responding evidence. Finally, once again it was not in question before me that, following the fact-finding meeting, and before the investigating officer issued her decision, there was contact between the investigating officer and an officer or officers of PWGSC resulting in the investigating officer obtaining further documentation evidencing PWGSC's position that the officer alleged to have offered the applicant employment did not possess the authority to authorize his appointment. Once again, this documentation was not shared with the applicant and he was given no opportunity to respond to it. This, notwithstanding the reality that such evidence was obviously central to the investigating officer's decision.
| (c) Is their utility in setting aside the decision under review and referring it back for redetermination? |
[18]Counsel for the respondent urged that, even if, as I have, I find reviewable error in the process leading to the decision under review, I should not set it aside because any new investigation would inevitably arrive at the same result. In support of this position, he referred me to Talwar v. Canada (Minister of Citizenship Immigration)3 where Madam Justice Layden-Stevenson, wrote at paragraph 4:
The purpose of ensuring that extrinsic evidence is disclosed is to enable an applicant an opportunity to respond. I fail to see how the applicant could have responded to the above-mentioned restriction when he would be powerless to change it. The applicant's counsel was not able to suggest any possible response that might be available to the applicant. Counsel did suggest the possibility that the visa officer could be mistaken. However, this would be a matter appropriately addressed on cross-examination and the visa officer was not cross-examined. In any event, I agree with the respondent that the decision did not rest on this factor. The applicant has advanced no argument to support the position that the decision would have been different had this fact not been considered. Even if there was a breach of procedural fairness, if it had no impact on the decision, the Court will not intervene: Mobil Oil v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; Yassine v. Canada (Minister of Employment and Immigration) (1994), 172 N.R. 308.
[19]I am satisfied that there are reasons both in law and in policy why the foregoing authority should not be followed. First, the applicant, who represented himself before me, does not concede that, if the decision under review is referred back for reconsideration, the result will ultimately be the same. I am satisfied that he is entitled to pursue that position. As to policy, I am satisfied that I have rarely, if ever, seen a more egregious breach of the duty to act fairly than is represented by this matter. I fear that to allow such a breach to go without remedy might well encourage others to disregard the duty to act fairly in circumstances where they might be of the view that the result is pre-ordained. I am not prepared to countenance such a possibility.
CONCLUSION
[20]In the result, based upon the foregoing analysis, this application for judicial review will be allowed. The decision under review will be set aside and the applicant's complaint will be referred back to the Public Service Commission for reinvestigation.
COSTS
[21]I am satisfied that costs should follow the event. That being said, the applicant having represented himself, he is of course not entitled to compensation for the time that he has invested in this matter. An order will go in his favour for costs, fixed in the amount of $1,500, payable to the applicant by the respondent, such sum representing a reasonable amount in respect of the applicant's out of pocket expenses only.
1 Applicant's application record, at p. 249, paras. 97 to 99.
2 R.S.C., 1985, c. P-33, as amended.
3 2002 FCT 702; [2002] F.C.J. No. 951(T.D.) (QL).