Date: 20040422
Docket: T-1752-02
Citation: 2004 FC 589
Ottawa, Ontario, this 22nd day of April, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
ELLEN FLINN
Applicant
and
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms. Ellen Flinn is an employee of the Canada Customs and Revenue Agency (CCRA), formerly a branch of Revenue Canada. During the 1990s, due to organizational changes, CCRA placed many employees in so-called "acting positions" - positions which are usually in effect for no more than twelve months. However, because of special circumstances, a number of CCRA employees stayed in acting positions for up to ten years. CCRA reviewed the situation in 1999 and 2000. It promoted some of the persons who were in acting positions to indeterminate positions by way of an expedited staffing process.
[2] Ms. Flinn occupied an acting position at the PM-5 level for about five years, from 1997 to 2002. CCRA promoted two other persons in her branch to permanent positions, but not her. She asked to have her situation considered by an Independent Third Party Reviewer (ITPR). Specifically, she asked the ITPR to recommend that the two other appointments be revoked and that she be appointed to one of those positions. The ITPR did not agree, but did recommend that Ms. Flinn's supervisors review her situation with a view to placing her in a permanent PM-5 position. Three Directors General considered Ms. Flinn's circumstances and decided not to appoint her to a permanent position. She was informed of that decision, and the reasons for it, in a letter from a personnel manager. Ms. Flinn argues the ITPR's recommendation was binding on her managers and asks me to order them to implement it by placing her in a permanent PM-05 position.
[3] By way of a separate staffing process, Ms. Flinn has now been appointed to a permanent position at the PM-5 level. The parties agree that this case is now moot because Ms. Flinn has been granted the relief she was seeking when she began these proceedings. Still, Ms. Flinn argues that the issues in her case are important and should be decided notwithstanding that they will no longer affect her personally. The respondent submits that there is no longer any reason to decide this case on its merits. I agree with the respondent's position. Therefore, I must dismiss this application for judicial review.
I. Issue
[4] Ms. Flinn raised four issues:
1. Is this case moot and, if so, should the merits be decided anyway?
2. Is the ITPR's recommendation binding on managers?
3. What is the appropriate standard of review?
4. Was the managers' decision not to implement the ITPR's recommendation reasonable?
[5] Given my decision on the first issue, I will not address the others.
II. Analysis
A. Is this case moot and, if so, should the merits be decided anyway?
[6] To decide the issue of mootness, it is important to understand the nature of the proceedings and the potential legal issues involved.
[7] Here, the ITPR recommended that Ms. Flinn's managers review her qualifications and circumstances "with the intention to placing her without a selection process to the PM-5 position she is presently acting in or another suitable PM-05 position". In due course, the managers did consider Ms. Flinn's situation, but decided not to appoint her to a permanent position. Ms. Flinn argues that the ITPR's recommendation, in effect, was that she should be appointed to a PM-5 position. She feels that her managers failed to follow this recommendation which, she says, they were bound to do.
[8] The respondent points out that the ITPR actually rejected Ms. Flinn's request to be installed in one of the posts that had been converted from an acting, to a permanent, position. Accordingly, the ITPR's "recommendation" was no more than that. It was outside the main issue before the ITPR and Ms. Flinn's managers were not bound by it. The respondent also submits that, in any case, the managers followed the ITPR's recommendation by reviewing Ms. Flinn's circumstances and considering whether to appoint her. The fact that they decided not to do so does not mean that they failed to respect the ITPR's recommendation.
[9] As mentioned, both parties agree that Ms. Flinn has, by other means, been placed in the position she might have achieved by way of this application for judicial review. This renders the proceedings moot. The question is whether there remains a good reason to decide the legal issues anyway.
[10] Courts are naturally reluctant to decide legal questions in the abstract. There must be compelling reasons for doing so. The test was established by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. A court may exercise its discretion to decide a case that is moot after considering three factors:
· is there still a full adversarial context, in the sense that the parties "have a full stake in the outcome" of the case?
· will deciding the issues have some practical effect that would merit the expenditure of judicial resources?
· would deciding the issues place the court outside of its usual role to decide real disputes, or would the court be drawn into more of a legislative function?
[11] In this case, I fail to see how Ms. Flinn can have a "full stake in the outcome" now that she has obtained the position she initially sought. Still, I can see that there remains a real dispute between the parties over the nature of the ITPR's "recommendation" and the response of Ms. Flinn's managers to it. However, in the circumstances of this case, I do not believe these issues have sufficient practical consequences to justify my arriving at a definitive answer to them.
[12] Ms. Flinn argues that her case presents a novel issue about the binding nature of ITPR recommendations that could affect thousands of her fellow employees. However, as I see it, the issue she raises is really of marginal significance. The ITPR decided that Ms. Flinn's main complaint was unjustified and went on to make a recommendation that was, at least, ancillary to the main issue and, arguably, beyond its jurisdiction. Still, the respondent treated that recommendation as binding to the extent that it reviewed Ms. Flinn's qualifications and circumstances and considered whether to appoint her to a permanent position. In the end, the managers decided against making the appointment and gave reasons for their decision.
[13] It strikes me, therefore, that the facts of this case present a rather unusual set of circumstances and a narrow issue unlikely to affect many other employees. If this case raised a question about the status of ITPR's recommendations generally, that would be quite another matter. But the respondent concedes that decisions of ITPRs are generally binding on employers, so that issue simply does not arise in this case.
[14] Accordingly, I find this case to be moot and decline to decide the issues raised by Ms. Flinn. I must, therefore, dismiss this application for judicial review.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed.
"James W. O'Reilly"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1752-02
STYLE OF CAUSE: ELLEN FLINN v. CANADA CUSTOMS AND REVENUE AGENCY
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 7, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr. Justice O'Reilly
APPEARANCES:
Jacquie de Aguayo FOR THE APPLICANT
J. Sanderson Graham FOR THE RESPONDENT
SOLICITORS OF RECORD:
PUBLIC SERVICE ALLIANCE OF CANADA FOR THE APPLICANT
Ottawa, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario