Digests

Professional Institute of the Public Service of Canada v. Canada (Customs and Revenue Agency)

T-598-00

Aronovitch P.

29/1/01

22 pp.

Respondent Agency moving to strike applicant union's application for declaration Canada Customs and Revenue Agency failed to develop program for staffing recourse, mandamus requiring Agency to implement staffing recourse, on ground Agency failed to develop program for staffing recourse as obliged to do under Canada Customs and Revenue Agency Act (CCRAA), s. 54(1)--Agency statutorily created on November 1, 1999 to replace Department of National Revenue--9,000 members of applicant automatically transferred to employment of respondent Agency--Prior to November 1, 1999 staffing recourse provisions in Public Service Employment Act (PSEA) applied to auditors represented by union--As of effective date PSEA no longer applied to Agency--Agency, instead of Public Service Commission, now has exclusive authority to appoint, promote employees--CCRAA, s. 54(1) providing Agency must develop program governing staffing--Agency developing "Directives for Recourse on Staffing"--Exclusively governing appointment of staff, staffing recourse measures since inception of Agency--Under newly instituted staffing process, placement of candidates resulting from comparison against specified criteria rather than ranking of individuals according to merit--Alleged systemic shortcomings: current process providing limited grounds for recourse, limited right to be represented, limited disclosure of relevant documents regarding treatment of other employees, lack of meaningful redress--Respondent submitting application bereft of any possibility of success, applicant lacking standing, application time-barred--David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.) setting very high threshold for striking application; only possible to summarily dismiss notice of application where manifestly futile, unfounded--Regarding plea for declaration, applicant admitting recourse policy developed, implemented--At issue sufficiency of policy in light of legislative obligation imposed on Agency--Submissions of both counsel clearly attesting to presence of justiciable issue raised by applicant which is proper for determination on merits, precludes summary dismissal--Regarding plea for mandamus, Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.); affd [1994] 3 S.C.R. 1100, holding relief cannot be granted where applicant unable to demonstrate all of prerequisite elements for issuance of mandamus satisfied--Fundamental deficiency Agency raising that mandamus not available herein due to permissive nature of duty created in s. 54(1)--Presence of discretion to determine manner in which duty will be met precluding issuance of mandamus as no specific duty to act in particular manner--Applicant's failure to meet preconditions in Apotex arguable rather than conclusive--Although applicant neither demanding nor refused compliance with statute, such failure alone not basis for striking plea for mandamus--Failure, if any, to comply with statutory duty to develop recourse policy, question to be decided on merits--Cannot be concluded union must fail in securing relief by way of mandamus--Inappropriate to dismiss plea for mandamus, particularly as underlying prayer for declaration raising justiciable issue for determination on merits--Respondent arguing union acting as bargaining agent for auditors lacking standing to bring application--Federal Court Act, s. 18.1 requiring applicant to be directly affected by matter in respect of which relief sought--Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236 setting out three-element test for public interest standing--Prothonotary declining to preempt exercise of discretion of judge hearing matter to determine union's standing to bring application--Federal Court Act, s. 18.1(2) requiring application to be filed within 30 days following communication of decision or order sought to be reviewed--Agency implemented new staffing program November 1, 1999; notice of application issued March 27, 2000--As to argument application time-barred, generally plea of limitation raised in defence, argued at hearing of application, not raised as basis for striking application--Devinat v. Canada (Immigration and Refugee Board), [2000] 2 F.C. 212 (C.A.) and Krause v. Canada, [1999] 2 F.C. 476 (C.A.) giving scope to argument statutory time limits may not apply where, as in this case, impugned policy continuing in place, applied daily thereby remaining open to ongoing challenge--Motion to dismiss on ground of limitation premature--Respondent granted extension of time to serve, file affidavit evidence--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5)--Canada Customs and Revenue Agency Act, S.C. 1999, c. 17, s. 54--Public Service Employment Act, R.S.C., 1985, c. P-33.