Date: 20030506
Docket: T-2234-01
Neutral citation: 2003 FCT 566
BETWEEN:
GAIL TAYLOR
Applicant
- and -
PUBLIC SERVICE COMMISSION OF CANADA
Respondent
LAYDEN-STEVENSON, J.:
[1] This is an application for judicial review of a decision of the Public Service Commission of Canada (the Commission) allegedly made on November 30, 2001. For the reasons that follow, I conclude that the application is out of time and should be dismissed.
[2] The applicant was employed, as a term employee, with the Department of Canadian Heritage (the department) between March 6, 1989 and May 31, 1993. During that time, she filed harassment grievances. When her term expired on May 31, 1993, she alleged that the failure to renew her contract was due to the grievances and complaints she had lodged against her employer. She requested and was granted a Commission investigation. The applicant participated in the investigation and submitted in excess of 200 documents. The 81-page investigation report was dated September 10, 1997. The conclusions were that the applicant had been harassed by one of her superiors notwithstanding that the actions were not intentionally directed toward her. Harassment had not occurred, as alleged, with respect to another superior. The applicant's complaint that senior management failed in its duty to provide a harassment-free work place was not substantiated and with respect to the non-renewal of employment, as an allegation of harassment, it was unfounded.
[3] The report was forwarded to the applicant on September 10, 1997 along with a cover letter requesting input with respect to a satisfactory conciliation of a settlement. In response, the applicant sought further documentation from the department. By correspondence dated November 7, 1997, the applicant's solicitor expressed satisfaction regarding the finding of harassment by one superior, but sought production of documents from the department and a hearing date in relation to the other findings. On November 28, 1997, the Commission replied indicating that the matter had been thoroughly investigated and that the applicant had been provided ample opportunity to be heard. The Commission disagreed that further disclosure was required. On March 3, 1998, the applicant's solicitor informed the Commission of the recent receipt of correspondence demonstrating harassment, of the applicant by the other superior as well as someone internal to the department in Ottawa, and harassment by termination of employment.
[4] On March 27, 1998, the Commission informed the applicant of the criteria used by the Commission to determine whether a case should be re-opened or reviewed. On May 3, 1998, the applicant wrote to the Commission indicating that she was delayed in requesting that the file be re-opened because she was awaiting the results of a complaint to the privacy commissioner to obtain more documents. On January 11, 1999, the applicant's solicitor wrote to the Commission seeking clarification as to possible remedies and indicating that if the applicant was not accommodated with respect to her termination, a re-opening of the investigation would be sought. The Commission responded, in writing, that there was no implication from previous correspondence that the applicant had any right to appointment to a position within the federal public service.
[5] On March 18, 1999, the applicant's solicitor again requested advice regarding remedies and stated, "In any event, we have been instructed to formally request, from the Public Service Commission, to re-open this investigation". The response, dated March 26, 1999 provided information regarding the scope of remedial options and included, again, a copy of the policy regarding re-opening investigations.
[6] The policy with respect to re-opening harassment complaint investigations changed during the year 2000. Under the new policy, investigations could not be re-opened. In point of fact, Order in Council P.C. 1986-2350 assigning the Commission the duty to investigate complaints of personal harassment was revoked by Order in Council P.C. 2001-955 on May 31, 2001. The Commission was assigned, by the 2001 Order in Council, the duty to act as an expert resource body and provide programs and services to departments and other portions of the public service, upon their request, in the area of prevention and resolution of harassment. By correspondence dated November 16, 2000, January 15, 2001 and March 5, 2001, the applicant's solicitor inquired, of the Commission, whether this change in policy would affect the applicant's attempt to re-open the investigation.
[7] In correspondence to the applicant's counsel, dated March 22, 2001, the Commission indicated that the applicant's desire to contest the decision was, for the most part, unfounded. The correspondence then stated:
If your client wishes to pursue this matter, she is entitled to do so provided that her grounds for having the decision reviewed meet the criteria established for such reviews under the current policy (i.e. appeal to the Federal Court, Trial
Division).
[8] On June 15, 2001, the applicant's solicitor responded and stated that there was sufficient documentation to establish grounds to seek a re-investigation. He suggested a meeting, so that the applicant could provide a thorough presentation and analysis of the documentation, and queried how it should proceed. On August 8, 2001, the Commission replied and stated that every opportunity for the applicant to formally request the file to be re-opened had been provided and that nothing in the June 15, 2001 correspondence provided information that would lead to the re-opening of the file. The letter concluded with the statement "Accordingly, we will take no further action in this case".
[9] The applicant's solicitor wrote again on September 7, 2001 stating that the June 15th correspondence was not intended to be an application to re-open the matter, but to seek direction on how to proceed given the huge volume of information for submission. On October 12, 2001, the Commission replied that, as indicated on August 8, 2001, no further action would be taken and that the avenue of recourse is to the Federal Court as indicated in the letter of March 22, 2001.
[10] On November 21, 2001, the applicant's solicitor responded, expressing confusion, and stated that no application to re-open had been made. He questioned whether the Commission was not prepared to allow the applicant even an attempt to convince it to re-open the file. On November 30, 2001, the Commission stated that it would not re-open the file nor hear any new evidence. It also stated that as earlier indicated on August 8, 2001 and on October 12, 2001, no further action would be taken on this case. For the third time, the applicant was informed that her recourse was to the Federal Court. The applicant filed the within Notice of Application on December 18, 2001. The applicant has not sought an extension of time within which to file her Notice of Application.
[11] Section 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7 provides that an application for judicial review shall be made within 30 days after the time the decision was first communicated to the party directly affected thereby. The applicant was informed that she must appeal to the Federal Court, Trial Division on March 22, 2001. If the applicant, for whatever reason, found that statement ambiguous, the statement contained in the Commission's correspondence dated August 8, 2001 is irrefutable. "No further action will be taken" means precisely that. There is no merit in an argument that suggests otherwise. Whether it be the March 22, 2001 or the August 8, 2001 correspondence, either way, the applicant is out of time. The jurisdiction of the Commission to investigate harassment complaints was revoked on May 31, 2001 in any event.
[12] In Moresby Explorers Ltd. v. Gwaii Haanas National Park Reserve, [2000] F.C.J. No. 1944 (T.D.), Pelletier J., as he then was, reviewed the law in this regard. The
following excerpt from the decision is instructive.
In Dumbrava v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 230...Noel J. (as he then was), reviewed a series of cases dealing with the effect of correspondence with a decision maker after a decision has been made. In those cases, the Court held that a "courtesy response" does not create a new
decision from which judicial review may be taken. As it was put
by McKeown J. in Dhaliwal v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 982 (T.D.)"...counsel cannot extend the date of decision by writing a letter with the intention of provoking a reply." Before there is a new decision, subject to judicial review, there must be a fresh exercise of discretion such as a reconsideration of a prior decision on the basis of new facts...
...In my view, the correspondence simply shows persistent attempts to reverse a negative decision and a continuing commitment to the original decision by the respondents. Unless the Court is prepared to exercise its discretion to
extend the time for bringing the application, it is out of time and must be dismissed.
[13] Similarly, in Besner v. Canada (Public Service Commission), [2000] F.C.J. No. 1684 (T.D.), Blais J. considered a motion for an extension of time to commence an application for judicial review in a factual situation that bears striking resemblance to that before me. In dismissing the motion, Blais J. stated, "In my view, a case cannot stay alive forever just by exchange of letters by parties".
[14] Even if I accept the applicant's argument that the March 22, 2001 correspondence advising that the Commission would not re-open the investigation was not entirely crystal clear, that cannot be said of the August 8, 2001 letter. The application for judicial review
is out of time. There has been no request for an extension of time. The application for judicial review is dismissed and an order will so provide.
"Carolyn Layden-Stevenson"
JUDGE
Calgary, Alberta
May 6, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2234-01
STYLE OF CAUSE: GAIL TAYLOR v. PUBLIC SERVICE
COMMISSION OF CANADA
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: May 5, 2003
REASONS FOR ORDER : LAYDEN-STEVENSON, J.
DATED: May 6, 2003
APPEARANCES:
Mr. J. Richard McKee FOR APPLICANT
Mr. Ron Nichwolodoff FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. J. Richard McKee
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT