Date: 20030129
Docket: T-1249-01
Neutral citation: 2003 FCT 99
Toronto, Ontario, Wednesday the 29th day of January, 2003
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
MAURICE E. ADAMS
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA, THE PUBLIC
SERVICE COMMISSION APPEAL BOARD, and
THE DEPARTMENT OF FISHERIES AND OCEANS
Respondents
[1] Mr. Maurice E. Adams (the "Applicant") seeks judicial review of the interlocutory decision of Chairperson Giffin dated June 4, 2001. In her decision, made in her capacity as Chairperson of an Appeal Board constituted pursuant to section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended (the "Act"), she dismissed the Applicant's appeal arising from a job competition for appointment to the position of Superintendent, Marine Communications and Traffic Services, Department of Fisheries and Oceans (the "Department"). Chairperson Giffin found that the Appeal Board lacked jurisdiction over most of the allegations raised by the Applicant, pursuant to section 21(4) of the Act.
FACTS
[2] The Applicant is an employee of the Department. In early March 1999, job competition number 99-DFO-CCID-NFC-47 was posted for the position of Superintendent, Marine Communications and Traffic Services. The Applicant submitted his application for the position on March 22, 1999.
[3] On July 6, 1999, a Selection Board, comprised of Ms. Donna O'Driscoll, Mr. Ray Browne and Captain Alan Rowsell, interviewed the Applicant. Ms. O'Driscoll served as the Chair.
[4] The Applicant received written notification on August 2, 1999 of the eligibility list determined by the Selection Board. The Applicant placed fifth in the competition and was not included on the first eligibility list. Subsequently, he requested a Post Board Review and access to all information related to the competition, as well as information concerning the appeal process. On August 20, 1999 the Applicant filed a Notice of Appeal with the Registrar, Appeals and Recourse Branch, Public Service Commission, pursuant to section 21(1) of the Act.
[5] The Applicant made several requests for the disclosure of information relating to the competition, including the handwritten notes made by members of the Selection Board during interviews. He received conflicting responses about the availability of the notes and was ultimately advised by Ms. O'Driscoll that the handwritten notes had been "destroyed" but that consolidated typewritten notes were available. The typewritten notes were disclosed to the Applicant in due course.
[6] The Applicant made various requests, through the Public Service Commission, for further and better disclosure of information by the Selection Board relating to the destruction of the handwritten notes and the creation of the typed version. He also made requests for a disclosure order and for an order extending the disclosure period. Both requests were denied by the Public Service Commission.
[7] On November 4, 1999 the Applicant filed his original allegations with the Department. The allegations were subsequently amended prior to the commencement of the hearing on November 25, 1999. The hearing was conducted over three days, that is November 25, 1999, November 26, 1999 and December 13, 1999.
[8] Ms. O'Driscoll, the Chairperson of the Selection Board, made representations on behalf of the Department but was not cross-examined by the Applicant, despite his request to do so.
[9] On January 6, 2000, Mr. Michael Sloan, Chair of the Appeal Board, released his decision and allowed the appeal, on the basis of defects in two questions posed in the interview. The Appeal Board found that two questions were unclear and that the Selection Board had failed to assess written communication abilities. The Appeal Board recommended corrective measures relative to these matters and allowed the appeal.
[10] On February 9, 2000, the Applicant commenced an application for judicial review in the Federal Court of Canada, Trial Division relative to the decision of Mr. Sloan. On February 13, 2000 he also filed a formal complaint with the Office of the Privacy Commissioner alleging improper destruction of personal information relating to him, that is, the handwritten notes maintained by the Selection Board during the interview process for the job competition.
[11] By letter dated March 25, 2000, the Public Service Commission issued corrective measures concerning the two questions identified by the Appeal Board and the assessment of written communications. By the same letter, the Public Service Commission also directed that no appointments be made from the eligibility list.
[12] On March 31, 2000, the Public Service Employment Regulations, 1993 were repealed and replaced by the Public Service Employment Regulations, 2000 (the "PSER 2000"). These regulations provided candidates for a second eligibility list resulting from corrective measures with a new legal entitlement, in order of rank, to extended PM-06 acting appointments should suitable opportunities arise during the valid time period of the list.
[13] On or about May 5, 2000, following implementation of the corrective measures, a new eligibility list (the "second eligibility list") was posted. This list included three candidates, in order of merit. They were Gary Rose, Dennis Pike and the Applicant.
[14] On May 21, 2000, in response to the issuance of the second eligibility list and pursuant to section 21(1) of the Act, the Applicant filed an appeal against the proposed appointments identified in this list. A second Appeal Board (the "second Appeal Board") was appointed pursuant to section 21(1) of the Act. A hearing commenced on September 26, 2000 but at the request of counsel for the Applicant that hearing was adjourned by Chairperson Judith H. Giffin pending the conclusion of the judicial review proceeding that the Applicant had begun in the Federal Court of Canada, Trial Division, against the January 6, 2000 decision of the first Appeal Board.
[15] Further to a Notice of Status Review, that application for judicial review was dismissed by Order dated December 19, 2000 and without adjudication on its merits.
[16] The proceedings of the second Appeal Board were reconvened on February 22, 2001. At the beginning of the hearing, the departmental representative submitted that most of the allegations raised by the Applicant in his Notice of Appeal did not address the corrective measures that had been taken by the Department and that, with one exception, the other
allegations were beyond the scope of review permitted by section 21(4) of the Act.
[17] Arguments were presented by the parties and an opportunity was provided to allow both parties to prepare written submissions, including submissions on the interpretation of subsections 21(3) and 21(4) of the Act. Following receipt and review of those submissions, the second Appeal Board delivered an interlocutory decision on June 4, 2001.
[18] In her decision, Chairperson Giffin made the following determination:
At the 22 February 2001 reconvening of the appeal hearing, the appellant was asked to characterize which of his nine allegations could be said to be the result of corrective measures taken by the Commission pursuant to subsection 21(3) of the Public Service Employment Act. The appellant declined to so categorize his allegations.
Having considered both the findings of appeal board chairperson Sloan in his decision of 6 January 2000 and the allegations advanced by the appellant in his letter to the departmental representative of 13 July 2000, I am in agreement with the department that only part of allegation 8 dealing with question five (5) used in the assessment of personal suitability qualifications related to the defects identified by chairperson Sloan in his decision and comprises part of the corrective measures taken by the Commission pursuant to subsection 21(3) of the Public Service Employment Act.
Interlocutory Ruling (4 June 2001), Public Service Appeal Board. Applicant's Record, Vol. 1, Tab 2, p. 43 [emphasis added].
[19] The Applicant now seeks judicial review of the decision that only one part of allegation 8 can be dealt with by the second Appeal Board. The effect of the ruling by the second Appeal Board is to dispose of the remaining allegations raised by the Applicant in his appeal.
APPLICANT'S SUBMISSIONS
[20] The Applicant argues that the second Appeal Board erred in refusing to consider the substantive effect upon him of the denial of his right to cross-examine relative to the consolidated notes, at the proceedings before the first Appeal Board. Here, the Applicant acknowledges that Johnson v. Canada (Attorney General) (1998), 145 F.T.R. 108, aff'd (1999), 249 N.R. 136 (F.C.A.), stands for the position that appeals pursuant to section 21(4) of the Act are limited to an assessment of corrective measures implemented in accordance with the merit principle.
[21] The Applicant submits that the right to procedural fairness is beyond and different from "an allegation subject to corrective measure", contemplated in Johnson, supra and subsections 21(3) and (4) of the Act. The Applicant also argues that a continuing breach of natural justice occurred when the second Appeal Board made its ruling on jurisdiction. He says that the failure of the first Appeal Board to address the inclusion of hearsay evidence, that is the consolidated notes, also amounts to a breach of procedural fairness.
[22] The Applicant argues that the failure of the second Appeal Board to address the procedural fairness issue arising in the first appeal constitutes a reviewable error. He relies on Tsatsakis v. Canada (Attorney General) (1998), 152 F.T.R. 146 to support his argument that this admission of hearsay evidence into a hearing without providing the other party with a right of cross-examination violates the principles of natural justice. In that case, which also involved a
proceeding under the Act, an investigator's report compiled from interview notes was used at a hearing. The Court held that the principles of natural justice were violated when members of the Selection Board were not produced for cross-examination.
[23] The Applicant further argues that, on the basis of Danyluk v. Ainsworth Technologies, [2001] 2 S.C.R. 460, issue estoppel does not apply where the breach of natural justice is a continuing one. The purpose of the principles governing issue estoppel is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done. Here, the Applicant says that the administrative structure worked an injustice and the principles of issue estoppel should not be rigidly applied.
[24] He further refers to Jain v. Canada (Attorney General) (1999), 173 F.T.R. 92 and Murphy v. Canada (Attorney General), [1999] 2 F.C. 326 (T.D.) where the failure to disclose an assessor's manual used in the examination for a job competition constituted a reviewable error.
[25] The Applicant argues that he was unable to participate in the first Appeal Board hearing in a meaningful way because he was deprived of the opportunity to discover the handwritten notes. He also submits that the destruction of these handwritten notes constitutes an infringement of his personal rights under the Privacy Act, R.S.C. 1985, c. P-21, as amended and his right to security of the person protected under section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11 [hereinafter the "Charter"].
[26] He argues that the typewritten, consolidated notes do not accurately or completely reflect what occurred at the interview. He says that the refusal of the first Appeal Board to allow him to cross examine Donna O'Driscoll further breached his right to procedural fairness.
[27] Finally, the Applicant submits that this interlocutory ruling now under review is the effective, final determination of his second appeal. It is timely for him to seek judicial review of the decision of the second Appeal Board even though it is entitled an "interlocutory" decision.
RESPONDENTS' SUBMISSIONS
[28] The Respondents frame their position in terms of the standard of review applicable to a decision of an appeal board constituted pursuant to section 21(4) of the Act. They submit that correctness is the appropriate standard when dealing with an Appeal Board's interpretation of its statutory jurisdiction. In this regard, the Respondents rely on Johnson, supra.
[29] As well, the Respondents argue that the decision of Chairperson Giffin is correct. The Applicant failed to state his allegations in the context of the corrective measures taken by the Commission, in response to his first appeal, and the matters raised in the second appeal were outside the jurisdiction of the second Appeal Board.
[30] In any event, the Respondents say that the arguments advanced by the Applicant in this judicial review proceeding relate to alleged defects of the first Appeal Board hearing. The Applicant is effectively asking the second Appeal Board to review the decision of the first Appeal Board, a body of equal status. This is clearly beyond the power of the second Appeal Board.
[31] The appropriate course for the Applicant to challenge procedural errors arising from the first Appeal Board hearing was to commence an application for judicial review relative to that earlier hearing. Although the Applicant had done so, the application was dismissed for delay, by Order of Justice Blais of the Federal Court, Trial Division, made on December 19, 2000.
[32] The Respondents also argue that even if the decision of the first Appeal Board had a continuing effect upon the subsequent appeal, section 21(4) of the Act imposes a limit on the possible grounds of appeal by clearly defining the limited jurisdiction of an Appeal Board to review the corrective measures implemented under section 21(3) of the Act.
[33] Finally, the Respondents note that this limitation on further appeals allows closure to the employment selection process, as stated in Johnson, supra, at paragraph 14.
ANALYSIS
[34] This application is brought pursuant to the Federal Court Act, R.S.C. 1985, c. F-7, as amended. Section 18.1(4) sets out the grounds of review as follows:
| (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 don't 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. |
[35] Judicial review is not generally available in relation to interlocutory decisions; see Szczeka v. Canada (Minister of Employment and Immigration) (1993), 116 D.L.R. (4th) 333, 170 N.R. 58 (F.C.A.). Although the decision under review here is described by the decision maker, that is the second Appeal Board, as an "Interlocutory Ruling", it is a determination that most of the allegations raised in the Notice of Appeal are beyond the jurisdiction of the Appeal Board. Consequently, that decision is in substance a final decision in relation to the matters that the Appeal Board determined were beyond its jurisdiction. The application for judicial review, then, has been brought in an appropriate manner.
[36] The jurisdictional finding made by the second Appeal Board arises from section 21 of the Act. This provision governs the right of appeal relating to certain competitions and appointments within the federal public service. Section 21 provides as follows:
| 21. (1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.
(1.1) Where a person is appointed or about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service by a process of personnel selection, other than a competition, any person who, at the time of the selection, meets the criteria established pursuant to subsection 13(1) for the process may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.
(2) Subject to subsection (3), the Commission, on being notified of the decision of a board established under subsection (1) or (1.1), shall, in accordance with the decision, (a) if the appointment has been made, confirm or revoke the appointment; or (b) if the appointment has not been made, make or not make the appointment.
(2.1) Where the appointment of a person is revoked pursuant to subsection (2), the Commission may appoint that person to a position within the Public Service that in the opinion of the Commission is commensurate with the qualifications of that person.
(3) Where a board established under subsection (1) or (1.1) determines that there was a defect in the process for the selection of a person for appointment under this Act, the Commission may take such measures as it considers necessary to remedy the defect.
(4) Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit.
(5) Section 10 and the rights of appeal provided by this section do not apply to appointments made under subsection 29(1.1) or (3), 30(1) or (2) or 39(3) of this Act or subsection 11(2.01) of the Financial Administration Act or any regulations made under paragraph 35(2)(a) of this Act. |
|
21. (1) Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
(1.1) Dans le cas d'une nomination, effective ou imminente, consécutive à une sélection interne effectuée autrement que par concours, toute personne qui satisfait aux critères fixés en vertu du paragraphe 13(1) peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
(2) Sous réserve du paragraphe (3), la Commission, après avoir reçu avis de la décision du comité visé aux paragraphes (1) ou (1.1), doit en fonction de celle-ci_: a) si la nomination a eu lieu, la confirmer ou la révoquer; b) si la nomination n'a pas eu lieu, y procéder ou non.
(2.1) En cas de révocation de la nomination, la Commission peut nommer la personne visée à un poste qu'elle juge en rapport avec ses qualifications.
(3) La Commission peut prendre toute mesure qu'elle juge indiquée pour remédier à toute irrégularité signalée par le comité relativement à la procédure de sélection.
(4) Une nomination, effective ou imminente, consécutive à une mesure visée au paragraphe (3) ne peut faire l'objet d'un appel conformément aux paragraphes (1) ou (1.1) qu'au motif que la mesure prise est contraire au principe de la sélection au mérite.
(5) L'article 10 et le droit d'appel prévu au présent article ne s'appliquent pas dans le cas où la nomination est faite en vertu des paragraphes 29(1.1) ou (3), 30(1) ou (2) ou 39(3) ou des règlements d'application de l'alinéa 35(2)a), ou en vertu du paragraphe 11(2.01) de la Loi sur la gestion des finances publiques.
|
[37] The purpose of section 21 is to ensure that appointments to the public service are based on merit. I refer to Charest v. Canada (Attorney General), [1973] F.C. 1217 (C.A.) where the Court commented on this at pages 1220-1221:
Under section 10 of the Public Service Employment Act, "Appointments to ... the Public
Service shall be based on selection according to merit ...". The holding of a competition
is one means provided by the Act to attain the objective of selection by merit. However,
it is important to remember that the purpose of section 21 conferring a right of appeal on
candidates who were unsuccessful in a competition is also to ensure that the principle of
selection by merit is observed. When an unsuccessful candidate exercises this right, he is
not challenging the decision which has found him unqualified, he is, as section 21 indicates, appealing against the appointment which has been, or is about to be, made on the basis of
the competition. If a right of appeal is created by section 21, this is not to protect the
appellant's rights, it is to prevent an appointment being made contrary to the merit principle.
As, in my view, this is what the legislator had in mind in enacting section 21, it seems
clear that a Board appointed under this section is not acting in an irregular manner if,
having found that a competition was held in circumstances such that there could be some
doubt as to its fitness to determine the merit of candidates, it decides that no appointment
should be made as a result of that competition. Such a decision may well cause some
hardship to qualified candidates who have done nothing wrong. However, aside from the
fact that it is not an undue hardship (since candidates can always enter another competition),
one cannot admit, in order to avoid this hardship, that appointments be made in the Public
Service without ensuring that the merit principle is observed.
[38] In the present case, the Applicant obtained partial success in appealing the eligibility list created by the selection process. Although his allegation in his first appeal addressed the fact that the handwritten notes made at the interviews were destroyed and replaced by consolidated,
typewritten notes, his appeal was allowed on the basis that two questions for candidates lacked clarity and that the Selection Board had failed to assess written communication skills. The Applicant sought judicial review of that decision but that proceeding was dismissed for delay.
[39] In my opinion, the fact that the judicial review proceeding relative to the decision of the first Appeal Board was dismissed for delay and without adjudication on its merits does not change the consequences of that disposition. The result of that disposition is that the issues raised in that application are no longer before the Court and are not justiciable in the present proceeding. The Court can deal only with the issues raised by the application for judicial review that is now before it and that relates to the decision of the second Appeal Board.
[40] Section 21(3) of the Act provides that the Public Service Commission may exercise its discretion to introduce necessary measures to correct a defect in a selection process, provided that those measures result in an appointment on the basis of merit.
[41] Here, the Public Service Commission directed that corrective measures be implemented and no appointments be made from the eligibility list. A new eligibility list was created and the Applicant filed a further appeal in relation to the new list.
[42] Section 21(4) provides a right to bring a subsequent appeal once defects in a selection process have been remedied. However, the right to such a further appeal, following implementation of corrective measures, is not unlimited. That point was addressed in Johnson, supra, a case that involved three successive appeals relative to certain appointments and corrective measures taken by the Public Service Commission.
[43] In Johnson, supra, the appellants sought to raise new grounds of appeal that had not been raised in the first or second appeals. Those grounds were dismissed by the appeal board on the basis that they were unrelated to the remedial measures adopted by the Public Service Commission. In upholding the decision of the appeal board upon an application for judicial review, Justice Hugessen said at paragraph 11 as follows:
...it is, in my view, perfectly clear that only measures taken or failed to be taken
pursuant to subsection 21(3), i.e. measures to remedy a defect already identified
by an Appeal Board, may be made the subject of a further appeal. To put the matter
another way, the focus of subsection 21(3) is the defects and the measures taken to
correct them. A further appeal under subsection 21(4) is limited to the impact of those
measures on those defects. The three new grounds proposed by the applicants before
the third Appeal Board and again here clearly do not meet the test.
[44] Further, at paragraph 14 of Johnson, supra, Justice Hugessen addressed the relationship between section 21(3) and 21(4) of the Act and said:
..there is nothing very dramatic or drastic about subsections 21(3) and 21(4). They
simply direct that when the Commission decides to take corrective measures rather
than to go back to the beginning and start a new competition, the relevant time for
the assessment of merit of the candidates remains the same. On the second appeal,
the corrective measures are assessed for their conformity with the merit principle but
all other matters, whether or not they might have been raised on the first appeal,
are a closed book. The legislation has made a policy choice to put closure to the
appointment process. [Emphasis added]
[45] The decision of Chairperson Giffin, in dealing with the second Appeal Board, exclusively addresses the question whether the Applicant's allegations before that Board relate to the corrective measures undertaken pursuant to section 21(3) of the Act and whether they lie within the jurisdiction of the Board, pursuant to section 21(4). She concluded that the allegations, with one limited exception, did not relate to the corrective measures that resulted from the Applicant's first, partially successful, appeal.
[46] Again, I refer to Johnson, supra, where the Court determined, at paragraph 15, the applicable standard of review to this question of jurisdiction is correctness. In my opinion, the second Appeal Board correctly identified and answered the question in issue. The majority of the allegations presented by the Applicant in his second appeal do not relate to the corrective measures that followed upon the outcome of his first appeal. There is no basis for judicial intervention in the conclusion reached by the second Appeal Board.
[47] As for the arguments raised by the Applicant concerning alleged breaches of the Privacy Act, supra, that is a matter relative to his interview before the Selection Board. The record shows that the Applicant received advice that the Department had adjusted its policies regarding information on candidate assessment to be kept on file, as per a letter from the Acting Director General of Resourcing Policy and Legislation Directorate, dated April 7, 2000. The letter confirmed that the purpose of the Public Service Commission, concerning retention of notes made by board members during interviews, was to ensure that appointments are made on the basis of the merit principle.
[48] In my opinion, any issues arising in relation to the Privacy Act, supra, are irrelevant to this application and must be raised in another forum.
[49] The final matter to be addressed is the argument concerning a breach of the Applicant's rights pursuant to section 7 of the Charter. That section provides as follows:
Everyone has the right to life, liberty and security of the person and the right not to
be deprived thereof except in accordance with the principles of fundamental justice.
[50] The arguments presented by the Applicant in relation to an alleged Charter breach again relate to the destruction of the handwritten notes. That matter is not properly before the Court in this proceeding because it is unrelated to the issues that arose and were correctly addressed by the second Appeal Board.
[51] Furthermore, that matter is not one which attracts the protection of section 7. The circumstances giving rise to a breach of section 7 of the Charter was recently considered by the Supreme Court of Canada in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 where Justice Bastarache made the following observation at paragraphs 57 and 97:
Not all state interference with an individual's psychological integrity will engage s. 7. Where the psychological integrity of a person is at issue, security of the person is restricted to "serious state-imposed psychological stress".... The words "serious state-imposed psychological stress" delineate two requirements that must be met in order for security of the person to be triggered. First, the psychological harm must be state imposed, meaning that the harm must result from the actions of the state. Second, the psychological prejudice must be serious. Not all forms of psychological prejudice caused by government will lead to automatic s. 7 violations...
...
To summarize, the stress, stigma and anxiety suffered by the respondent did not deprive him of his right to liberty or security of the person. The framers of the Charter chose to employ the words, "life, liberty and security of the person", thus limiting s. 7 rights to these three interests... Freedom from the type of anxiety, stress and stigma suffered by the respondent in this case should not be elevated to the stature of a constitutionally protected s. 7 right.
[52] In the present case, the Applicant claims that he suffered personal stress as the result of the destruction of the handwritten notes. This stress, while real, does not amount to an infringement of section 7 of the Charter. The Applicant filed a complaint pursuant to the Privacy Act, supra. That action was the appropriate avenue for pursuit of this grievance. There is no basis to find an infringement of a constitutional right.
[53] In the result, this application is dismissed. If the parties cannot agree on costs, the Respondents may serve and file brief submissions on costs within ten (10) days, and the Applicant shall serve and file his submissions within ten (10) days, and the Respondents may serve and file a concise reply within five (5) days after receipt of submissions from the Applicant.
ORDER
This application is dismissed. If the parties cannot agree on costs, the Respondents may serve and file brief submissions on costs within ten (10) days, and the Applicant shall serve and file his submissions within ten (10) days, and the Respondents may serve and file a concise reply within five (5) days after receipt of submissions from the Applicant.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: T-1249-01
STYLE OF CAUSE: MAURICE E. ADAMS
Applicant
- AND -
THE ATTORNEY GENERAL OF CANADA, THE PUBLIC SERVICE COMMISSION APPEAL BOARD, AND THE DEPARTMENT OF FISHERIES AND OCEANS
Respondents
PLACE OF HEARING: ST. JOHN'S, NEWFOUNDLAND AND LABRADOR
DATE OF HEARING: TUESDAY, JULY 30, 2002
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: WEDNESDAY, JANUARY 29, 2003
APPEARANCES BY: Maurice E. Adams
For the Applicant, on his own behalf
Scott McCrossin
For the Respondents
SOLICITORS OF RECORD: Maurice E. Adams
For the Applicant, on his own behalf
Department of Justice
Suite 1400 Duke Tower
5251 Duke Street
Halifax, NS B3J 1P3
For the Respondents
FEDERAL COURT OF CANADA
Date: 20030129
Docket: T-1249-01
BETWEEN:
MAURICE E. ADAMS
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA, THE PUBLIC SERVICE COMMISSION APPEAL BOARD, AND THE DEPARTMENT OF FISHERIES AND OCEANS
Respondents
REASONS FOR ORDER
AND ORDER