T-3388-90
Réjean A. lathier (Applicant)
v.
The Commissioner of the Royal Canadian
Mounted Police and the Public Service
Commission (Respondents)
INDEXED AS: ÉTHIER V. CANADA (RCMP COMMISSIONER)
(TD.)
Trial Division, Cullen J.—Ottawa, June 12 and
August 6, 1991.
Public service — Selection process — Competitions —
Applicant says personnel officer promised closed competition
on completion of term appointment — Whether estoppel —
Certiorari to quash decision to hold open competition for can
teen manager at RCMP headquarters — Former incumbent, no
longer civil servant, awarded indeterminate appointment —
Public Service Commission having statutory power to decide
whether appointment made from within or without Public Ser
vice — Case law on duty of procedural fairness reviewed —
Decision as to type of competition management prerogative —
Applicant lacking right to make representations thereon —
Decision not directly terminating applicant's employment —
No general duty to act fairly herein.
Judicial review — Prerogative writs — Certiorari — Appli
cation to quash competition and decision to hold open compe
tition for indeterminate position of canteen manager at RCMP
headquarters — Term appointee says personnel officer prom
ised closed competition at end of term — Case law on duty of
procedural fairness reviewed — Applicant lacking right to
make representations as to form of competition — Employment
not directly terminated by decision — No general duty on
respondents to act fairly — Reasonable apprehension of bias
not established.
Practice — Evidence — Supplementary affidavit upon certi-
orari application comprised of statements made on informa
tion and belief hearsay — Admissible portions not severable
— Affidavit struck in entirety — Annexed exhibits hearsay —
Introduced to establish truth of contents — Whether admissible
as within exception to hearsay rule — Double hearsay — Inad-
missibility of record made in course of investigation — Busi
ness records at common law — Public document exception —
Necessity for public access in case of "inquiry" documents.
This was a section 18 application for certiorari quashing the
respondents' decision to hold an open competition for the posi
tion of canteen manager at RCMP headquarters in Ottawa, and
setting aside the competition itself. Respondents sought an
order striking applicant's supplementary affidavit and exhibits
attached thereto as hearsay under Federal Court Rules, Rule
332 and the common law rules of evidence. The applicant, first
employed at the RCMP canteen in 1979, was named canteen
manager, as a public servant, on a term appointment from June
7, 1988 to December 1989. Prior to expiry of the term, it was
decided to hold an open competition to fill the position on an
indeterminate basis. The indeterminate appointment was
awarded to applicant's predecessor. The applicant questioned
the regularity of the process but the Public Service Commis
sion, after an internal investigation, concluded that the com
plaint was unfounded. Applicant then sued the respondents,
alleging breach of the duty of fairness in failing to provide him
with an opportunity to be heard on the decision to hold an open
competition. It was argued that the decision was based on an
improper consideration, namely to give applicant's predecessor
an opportunity to regain his position, that the respondents were
estopped from holding an open competition in view of certain
representations made to applicant by an RCMP personnel
officer and that the involvement of another RCMP officer
raised a reasonable apprehension of bias. The respondents'
position was that the decision to hold an open competition was
made in good faith and within the discretion conferred by the
Public Service Employment Act.
The issues were whether the respondents breached the duty
of fairness towards the applicant in deciding to hold an open
competition without offering him an opportunity to make rep
resentations and whether the applicant's supplementary affida
vit and attached exhibits were admissible in support of his
application.
Held, the application should be dismissed.
To be admissible under the Federal Court Rules, Rule
332(1), applicant's supplementary affidavit should have been
based on his own knowledge and belief, not on hearsay. Since
the affidavit was comprised of statements made from informa
tion and opinions based not on personal knowledge but on
hearsay and because the admissible portions were not severa-
ble from the inadmissible portions, it should be struck out in its
entirety. The two exhibits annexed to the supplementary affida
vit were introduced as assertive documents to establish the
truth of what is contained in the statement and were therefore
hearsay. These exhibits, to be admissible, would have to fall
within one of the four exceptions to the hearsay rule. (1) Such
exhibits would be admissible under subsection 26(1) of the
Canada Evidence Act if considered a "book" within the mean
ing of that subsection. But the word "book" does not include
any kind of record and does not extend to reports consisting of
opinion and interpretation such as the exhibits herein. This
subsection is therefore inapplicable. 2) The exception based on
subsection 30(1) of the Act is inapplicable for two reasons.
First, a condition precedent to the admissibility of documents
under this subsection is that oral evidence of the matter
recorded in the document also be admissible. In other words,
the maker of the record must have had personal knowledge of
the events or statements recorded, otherwise the recorded state
ments would be double hearsay. This condition had not been
met. Furthermore, the notes having been taken in the course of
an investigation into the applicant's complaint, they were
excluded by virtue of subparagraph 30(10)(a)(i) of the Canada
Evidence Act. 3) While most of the requirements of the busi
ness record exception at common law had been satisfied, the
exhibits failed to meet the requirement that the recorder have
personal knowledge of the thing recorded. In both exhibits, the
recorders did not have such knowledge. 4) Although both
exhibits met the basic requirements of the public documents
exception, in the case of "inquiry documents" there may be a
further requirement: public right of access. The exhibits in
question were the results of inquiries made pursuant to a public
duty; the limited access available under the Access to Informa
tion Act is not equivalent to the broad public access that is nec
essary for the rationale of public scrutiny to be effective and
was insufficient to be a guarantee of reliability. The exhibits
were, therefore, not admissible under any of the exceptions to
the hearsay rule and should be struck out.
As to the duty of fairness owed to the applicant, the Public
Service Employment Act appears to give the Commission a dis
cretion to make appointments from within or from outside the
Public Service. But, in decisions which may be considered
administrative in nature, the decision-maker owes a duty of
procedural fairness in certain circumstances. First of the three
factors to be considered in determining whether there is a duty
to act fairly is the nature of the decision, more precisely its
finality. A decision of a preliminary nature, such as that in
question, will not in general trigger the duty to act fairly. The
second factor is the relationship between the body and the indi
vidual. In the instant case, it was that of employer-employee.
That an employee occupies a term position is not necessarily
incompatible with the existence of a duty of fairness upon the
expiration or non-renewal of the term. However, the relation
ship of the parties in this case was not one that would trigger
the right to make representations as to the form of competition.
The decision as to the type of competition is a management
prerogative, entrusted to the Public Service Commission by
statute. The third question is whether the decision has a signifi
cant effect upon the individual. Unless it does, the right to pro
cedural fairness does not arise. The decision to hold an open
competition did not terminate the applicant's employment, but
only deprived him of certain advantages he would have
enjoyed in a closed competition. In view of these three factors,
there was not a general duty on the respondents to act fairly.
Even if it were true that a personnel officer had promised
applicant that if he accepted a term there would be a closed
competition upon its completion, that would not found an
estoppel against the respondents because the officer lacked
authority to give such an undertaking.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1.
Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 26(1),
30(1),(10)(a)(i),(11),(12).
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Federal Court Rules, C.R.C., c. 663, R. 332(1).
Public Service Employment Act, R.S.C., 1985, c. P-33, ss.
8, 11.
Royal Canadian Mounted Police Act, R.S.C., 1985, c.
R-10, s. 10(1).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Knight v. Indian Head School Division No. 19, [1990] 1
S.C.R. 653; (1990), 69 D.L.R. (4th) 489; [1990] 3
W.W.R. 289; 83 Sask. R. 81; 43 Admin. L.R. 157; 30
C.C.E.L. 237; 90 CLLC 14,010; 106 N.R. 17; Ridge v.
Baldwin, [1963] 2 All E.R. 66 (H.L.).
APPLIED:
R. v. O'Brien, [1978] 1 S.C.R. 591; (1977), 76 D.L.R.
(3d) 513; [1977] 5 W.W.R. 400; 35 C.C.C. (2d) 209; 38
C.R.N.S. 325; 16 N.R. 271; Finestone v. The Queen,
[1953] 2 S.C.R. 107; (1953), 107 C.C.C. 93; 17 C.R. 211;
Nicholson v. Haldimand-Norfolk Regional Board of Com
missioners of Police, [1979] 1 S.C.R. 311; (1978), 88
D.L.R. (3d) 671; 78 CLLC 14,181; 23 N.R. 410; R. v.
Laverty (No. 2) (1979), 47 C.C.C. (2d) 60; 9 C.R. (3d)
288 (Ont. C.A.).
CONSIDERED:
Nowlan v. Elderkin, [1950] 3 D.L.R. 773 (N.S.S.C.); R. v.
Grimba and Wilder (1977), 38 C.C.C. (2d) 469 (Ont. Co.
Ct.); Ares v. Venner, [1970] S.C.R. 608; (1970), 14 D.L.R.
(3d) 4; 73 W.W.R. 347; 12 C.R.N.S. 349.
REFERRED TO:
Okeynan v. Prince Albert Penitentiary and National
Parole Board (1988), 20 F.T.R. 270 (F.C.T.D.); Regina v.
Northern Electric Company, Limited et al., [1955] O.R.
431; [1955] 3 D.L.R. 449; 111 C.C.C. 241; 24 C.P.R. 1;
21 C.R. 45 (H. C.); Slaight Communications Inc. v.
Davidson, [1989] 1 S.C.R. 1038; (1989), 59 D.L.R. (4th)
416; 26 C.C.E.L. 85; 89 CLLC 14,031; 93 N.R. 183;
Padfield v. Minister of Agriculture, Fisheries and Food,
[1968] A.C. 997 (H.L.); Cantwell v. Canada (Minister of
the Environnment) (1991), 6 C.E.L.R. (N.S.) 16
(F.C.T.D.).
AUTHORS CITED
Ewart, J. Douglas. Documentary Evidence in Canada,
Toronto: Carswell Legal Publications, 1984.
Lederman, S. N. "The Admissibility of Business Records:
A Partial Metamorphosis" (1973), 11 Osgoode Hall
U . 373.
Wade, H. W. R. Administrative Law, 5th ed., Oxford:
Clarendon Press, 1982.
COUNSEL:
Charles T. Hackland for applicant.
Geoffrey S. Lester and Hélène Laurendeau for
respondents.
SOLICITORS:
Cowling, Strathy & Henderson, Ottawa, for
applicant.
Deputy Attorney General of Canada, for respon
dents.
The following are the reasons for order rendered in
English by
CULLEN J.: This is an application pursuant to sec
tion 18 of the Federal Court Act, R.S.C., 1985, c.
F-7, for an order in the nature of certiorari. It con
cerns certain alleged irregularities involved in staff
ing the position of canteen manager at the RCMP
headquarters in Ottawa. The relief sought is an order
quashing and setting aside the decision by the respon
dents to hold an open competition to staff the position
of canteen manager, and an order quashing and set
ting aside the competition and declaring the position
vacant.
The respondents have made a concurrent applica
tion for an order striking out the supplementary affi
davit of the applicant and the exhibits attached
thereto made in support of the above application on
the ground that they are based on the applicant's
information and belief, and are hearsay, pursuant to
Rule 332 of the Federal Court Rules [C.R.C., c. 6631
and the rules of evidence at common law.
FACTS
The applicant was first employed by the Royal
Canadian Mounted Police canteen in 1979, and
served as assistant manager of the canteen from 1981
to 1987. The applicant was not during this time a fed
eral public servant. In February 1988, the canteen
manager, Gilles Charbonneau, resigned from the
Public Service. An open competition was held to find
a replacement. The applicant was the successful can
didate. He was then appointed to canteen manager on
a term basis with the status of a public servant from
June 7, 1988, to May 1, 1989. With extensions, the
contract ran to December, 1989.
It is unclear why the position -of canteen manager
was filled by the applicant on a term as opposed to an
indeterminate basis. The position had been consid
ered indeterminate when it had been held by
Charbonneau. According to Public Service Guide
lines, if the work to be performed is ongoing in
nature, the preferred staffing option is to make the
appointment on an indeterminate basis. RCMP super
intendent J. A. Lebel, who was in charge of adminis
tration and personnel at RCMP headquarters, states in
his affidavit that the applicant was appointed on a
term basis so the applicant would have "an opportu
nity to demonstrate his capacity to perform in the
position rather than appoint him permanently from
the beginning". He also stated that this was done on
the advice of the Public Service staffing officer, Lise
Péladeau. Péladeau, however, states that she believed
the decision to be Lebel's alone. The evidence of
Louise Parry, Péladeau's supervisor, was that the
Public Service Commission does not approve of mak
ing term appointments for probationary purposes.
The applicant states that when he accepted the
position, he was advised by Lebel that he had several
options with respect to his employment status in the
new position. He could choose to be appointed man
ager on an indefinite basis, as a non-governmental
employee, or he could choose to take the appoint-
ment as a governmental employee for a limited term.
According to the applicant, Lebel advised him that if
he chose to accept a term appointment, a closed com
petition would be held upon the end of his term, and
as long as no qualified persons came forward for the
job, he would be confirmed in the position indefi
nitely. Lebel denies that he promised the applicant
that a closed competition would be held, and at most
expressed a possibility. He also states that he had no
authority to make such a representation that would be
binding upon the respondents.
Superintendent Lebel was replaced by Superinten
dent Yves Campagna in the summer of 1988. Campa-
gna was requested by his superior, Chief Superinten
dent Yelle, to contact Charbonneau and determine if
he was interested in returning to his former position.
Yelle, Campagna and Charbonneau later met to dis
cuss this possibility, with Charbonneau stating that he
would return if he could receive performance
bonuses over and above his salary. Campagna
enquired as to the possibility of such bonuses with
Michel Chatelaine, the officer in charge of the Public
Service Personnel Administration branch at RCMP
headquarters. Chatelaine advised that such bonuses
could not be offered. Charbonneau then told Campa-
gna that he would not be interested in the position.
He subsequently changed his mind, but as will be
seen it is unclear when this change of heart was
brought to the attention of Campagna before or after
the decision was made to have an open competition.
As the applicant's term drew to a close, a prelimi
nary decision had been made by Louise Parry and
Lise Péladeau to re-staff the position by means of a
closed competition. On May 9, 1989, however, this
decision was changed at a brief meeting between
Parry and Campagna. Parry for the Public Service
Commission, in consultation with Campagna for the
RCMP, decided that an open competition would be
held to fill the position of canteen manager on an
indeterminate basis. The circumstances surrounding
this meeting are, unfortunately, unclear in several key
respects. It appears that Parry set out a number of
staffing options for the position, and that Campagna
stated that he wished to have an open competition in
order to find the best qualified candidate for the posi
tion. Parry testified that she inferred from this that
Campagna was not completely satisfied with the
applicant. Left unexplained was the reason for pursu
ing a closed competition until May 9th if it was
apparent that there would be a problem in finding
sufficiently qualified candidates for the position.
It also appears that at the time of the meeting,
Parry, who had only been in her job for some weeks,
while aware that the applicant was a term employee,
was unaware of the applicant's long history with the
canteen or of the circumstances of his appointment
when the decision to have an open competition was
made, although Péladeau had been aware of these
matters. It also appears that at the time of the meet
ing, Campagna may have had concerns about the
applicant's job performance, although he denied on
cross-examination that he was other than completely
satisfied with the applicant. Four days before the May
9th meeting, Campagna had signed a performance
appraisal that stated that canteen profits had seriously
declined under the applicant's stewardship. This was
in fact incorrect. The applicant subsequently grieved
this appraisal, and in February 1990 the appraisal was
altered to indicate that substantial profits had been
achieved.
The evidence of Campagna was unclear in certain
other respects. He stated on cross-examination that he
did not remember when he had been advised by
Charbonneau that he wished to compete for his for
mer position, whether it was before or after the May
9th meeting. He also stated that he did not remember
if he had advised Parry that Charbonneau wanted to
compete. Parry stated that she was not so advised,
and also stated that it would be inappropriate to
employ a process to facilitate the chance of a particu
lar individual to compete.
The applicant submits that the inescapable conclu
sion to be drawn from the circumstances was that the
decision to have an open competition was made in
order to allow Charbonneau a chance to compete for
his position, for as he was no longer a civil servant he
would not be eligible for a closed competition. Cam-
pagna and Parry deny that the decision to have an
open competition was made to allow Charbonneau a
chance to compete for the position, but in order to
have the best possible candidate for the position.
In June 1989, the applicant was advised for the
first time of the decision to have an open competi
tion. He states that while he felt the decision to be
extremely unfair in light of his performance and his
understanding of the representations made by Lebel,
he also felt that he had no choice but to enter the
competition. It is unclear how the applicant was made
eligible for the competition, for it is the policy of the
Public Service Commission not to refer for competi
tions for indeterminate positions the names of those
who already occupy the position on a term basis. This
would have had the effect of disqualifying the appli
cant, but it appears he was included in the competi
tion by some sort of administrative fiat. Charbon-
neau, however, as an outsider, was subject to no such
restrictions, and his name was referred from the Pub
lic Service inventory of names. The indeterminate
appointment was awarded to Charbonneau in Nov-
ember 1989.
The applicant sought to complain about the regu
larity of the process. Had the applicant been compet
ing in a closed competition as a term employee, he
would have had a guaranteed right of appeal against
Charbonneau's appointment with a hearing held
before an adjudicator. As he was competing as an
outsider in an open competition, however, his only
recourse was to complain about the competition pro
cess to the Appeals and Investigation Branch of the
Public Service Commission. The Commission, after
an internal investigation, concluded that the appli
cant's complaint was unfounded.
The applicant then filed an action against the
respondents. He then proceeded to seek prerogative
relief in this court. During cross-examination on the
affidavits to be submitted in this proceeding, the
applicant requested that the staffing files relating to
the competition be produced, which request was
refused. The applicant then applied under the Access
to Information Act [R.S.C., 1985, c. A-1] for a copy
of the file concerning the investigation by the Public
Service Investigation Branch. A series of "Notes to
File" by the investigator, Michelle Grosleau, was
obtained. Also obtained were internal RCMP docu
ments concerning the open competition. The apppli-
cant has annexed these documents to a supplementary
affidavit filed in support of his certiorari application.
The respondents have applied to have the supplemen
tary affidavit and the exhibits struck out as inadmissi
ble hearsay.
POSITION OF THE APPLICANT
The applicant states that the respondents breached
a duty of fairness by failing to provide the applicant
with an opportunity to be heard on the decision to
hold an external competition. He also submits that
the decision was based on improper motives and
irrelevant considerations, to wit, a desire to give
Charbonneau an opportunity to regain his position. In
addition, the applicant states that the respondents
were estopped from holding an external competition
by virtue of his reliance on the representations made
to him by Lebel. There is also an allegation that the
involvement of Campagna in the decision raises a
reasonable apprehension of bias.
POSITION OF THE RESPONDENTS
The respondents deny that any binding representa
tions were made to the applicant by Lebel concerning
the type of competition that would be held upon the
expiry of his term. They also deny that any improper
motive inspired the decision to hold an open competi
tion, or that any policies or procedures were breached
in reaching this decision. They state that the decision
to hold an open competion was a good faith exercise
of the discretion to make such decisions conferred by
the Public Service Employment Act [R.S.C., 1985, c.
P-33].
MOTION OF THE RESPONDENTS
I propose to deal first with the respondents' motion
to strike out all or part of the applicant's supplemen
tary affidavit and the attached exhibits on the ground
that the affidavit is not confined to facts that the
applicant is able to prove of his own knowledge, and
that the exhibits annexed to the affidavit have not
been proved and are hearsay. The matters can be con
veniently divided into questions of the admissibility
of the applicant's affidavit, and then a consideration
of the admissibility of the attached exhibits.
Affidavit
The content of affidavits in proceedings in this
Court is set out in Rule 332(1) of the Federal Court
Rules:
332. (1) Affidavits shall be confined to such facts as the wit
ness is able of his own knowledge to prove, except on interloc
utory motions on which statements as to his belief with the
grounds thereof may be admitted.
Applications pursuant to section 18 for prerogative
writs such as certiorari are not interlocutory by
nature, and therefore affidavits based on information
and belief are not sufficient for the purposes of such
motions: Okeynan v. Prince Albert Penitentiary and
National Parole Board (1988), 20 F.T.R. 270
(F.C.T.D.). Therefore, the affidavit of the applicant in
this case must be based on his own knowledge and
belief, and cannot be based on hearsay.
Based on the above definition, it is clear that the
bulk of the applicant's supplementary affidavit is
comprised of statements made on information and
belief, opinions not based on personal knowledge,
and hearsay. The applicant relies in the affidavit on
extensive quotations from documents apparently gen
erated by Grosleau in the course of her investigation,
and a series of internal RCMP documents relating to
the staffing of the canteen position obtained from the
PSC file. In my view, the admissible portions of the
affidavit are not severable from the inadmissible por
tions, and therefore I would strike the affidavit in its
entirety.
The Exhibits
There are two exhibits annexed to the supplemen
tary affidavit: exhibit "A", the investigator's "Notes
to File", and exhibit "B", the internal RCMP docu
ments. The respondents submit that they should be
struck from the applicant's motion record on the
ground that they are hearsay. Hearsay was defined as
follows by Dickson J. (as he then was) in R. v.
O'Brien, [1978] 1 S.C.R. 591, at page 593:
It is settled law that evidence of a statement made to a witness
by a person who is not himself called as a witness is hearsay
and inadmissible when the object of the evidence is to establish
the truth of what is contained in that statement; it is not hear
say and is admissible when it is proposed to establish by the
evidence, not the truth of the statement, but the fact that it was
made.
In this case, it is clear that the documents in question
are hearsay. They are not being tendered as real evi
dence in order to prove that they are legal documents
with an operative effect, such as a contract or a will,
where the purpose is to establish the fact that a state
ment was made. Rather, they are introduced as asser
tive documents "to establish the truth of what is con
tained in the statement". Therefore, in order for the
exhibits to be admissible, they would have to fall
within one of the recognized exceptions to the hear
say rule. These exceptions are as follows:
1. Subsection 26(1) of the Canada Evidence Act,
R.S.C., 1985, c. C-5;
2. Subsection 30(1) of the Canada Evidence Act;
3. The exception for business records at common
law;
4. The exception for public documents at common
law.
1. Subsection 26(1) of the Canada Evidence Act
Subsection 26(1) of the Act provides that certain
government documents are admissible if their official
character is proved in the manner provided for in the
subsection. It reads as follows:
26. (1) A copy of any entry in any book kept in any office or
department of the Government of Canada, or in any commis
sion, board or other branch of the public service of Canada,
shall be admitted as evidence of that entry, and of the matters,
transactions and accounts therein recorded, if it is proved by
the oath or affidavit of an officer of the office or department,
commission, board or other branch of the public service of
Canada that the book was, at the time of the making of the
entry, one of the ordinary books kept in the office, department,
commission, board or other branch of the public service of
Canada, that the entry was made in the usual or ordinary
course of business of the office, department, commission,
board or other branch of the public service of Canada and that
the copy is a true copy thereof.
In this case, both parties have agreed that there was
compliance with the conditions of proof set out in
subsection 26(1), but the respondents still contend
that the exhibits are not a "book" within the meaning
of the subsection.
I am inclined to agree with the respondents that the
exhibits are not a "book". It is true that in Nowlan v.
Elderkin, [1950] 3 D.L.R. 773 (N.S.S.C.), it was held
that the term "book" was not to be construed nar
rowly, and that it could extend to files that were
loosely fastened together. But I do not accept that
"book" could include any kind of record. For exam
ple, subsection 30(12) of the Act defines "record" as
including "books", implying that the definition of
"book" is narrower. In my reading, entries in a
"book" concerns the transcription of routine govern
ment records, or what Ewart in his book Documen
tary Evidence in Canada refers to as "register-type"
documents. In my view, the scope of "book" does not
extend to reports that consist of opinion and interpre
tation, which is what the exhibits in this case are.
Therefore, in my opinion, the exhibits are not admis
sible pursuant to subsection 26(1).
2. Subsection 30(1) of the Canada Evidence Act
There are two possible objections to the admissi
bility of the exhibits under subsection 30(1). The first
is the requirement that the evidence be admissible as
oral evidence. The second is the bar in subparagraph
30(10)(a)(i) against the section being used to render
admissible in evidence in a proceeding a record made
in the course of an investigation or inquiry.
Subsection 30(1) provides that business and gov
ernmental records may be introduced as evidence in
certain circumstances:
30. (1) Where oral evidence in respect of a matter would be
admissible in a legal proceeding, a record made in the usual
and ordinary course of business that contains information in
respect of that matter is admissible in evidence under this sec
tion in the legal proceeding on production of the record.
(12) In this section
"business" means any business, profession, trade, calling,
manufacture or undertaking of any kind carried on in
Canada or elsewhere whether for profit or otherwise, includ
ing any activity or operation carried on or performed in
Canada or elsewhere by any government, by any depart
ment, branch, board, commission or agency of any govern
ment, by any court or other tribunal or by any other body or
authority performing a function of government ....
Double Hearsay. It should be noted that a condition
precedent to the admissibility of documents under
this subsection is that oral evidence of the matter
recorded in the document also be admissible. This
requirement is capable of being construed in a num
ber of ways. Counsel for the respondents states that
in order for the statements in the exhibits to be
admissible, the maker of the record must have had
personal knowledge of the events or statements
recorded, otherwise the recorded statements would be
double hearsay. This interpretation is advocated by S.
N. Lederman, in his article "The Admissibility of
Business Records: A Partial Metamorphosis" (1973),
l l Osgoode Hall L.J. 373, at pages 394-395:
Furthermore, unlike section 36 of The Ontario Evidence Act,
there is no reason to believe that section 30 of the Canada Evi
dence Act will sanction records based on information provided
by others. Note that the opening words of section 30 read,
Where oral evidence in respect of a matter would be admis
sible in a legal proceeding ..
The statute merely provides a method of proof of an admissible
fact. It does not make the document admissible when oral testi
mony of the same fact would be inadmissible. Thus, if the
maker of the record took the witness stand, he could not testify
as to what someone else told him. That would be inadmissible
as hearsay and the same limitation applies to business records
under section 30 of the Canada Act. The Federal provision
does not have a sub-section similar to section 36(4) of The
Ontario Evidence Act which states that a lack of personal
knowledge does not affect the admissibility of the business
record.
Such an approach would clearly result in the notes
of the investigator Grosleau being inadmissible, as
she relied totally on the statements of others in the
preparation of her notes. With respect to the docu
ments in exhibit "B" to the affidavit, it appears that
the maker, Lise Péladeau, did not have personal
knowledge of the matters recorded therein, and thus
are also "double hearsay".
Alternatively, there is authority to the effect that it
is possible to interpret the requirement that oral evi
dence be admissible to mean that the record in ques
tion must have relevance to the matters in issue, and
that if any witness, not just the maker of the record,
had personal knowledge of the contents of the matter
recorded, the record would be admissible, although it
is hearsay on hearsay. In R. v. Grimba and Wilder
(1977), 38 C.C.C. (2d) 469 (Ont. Co. Ct.), the Crown
sought to introduce under subsection 30(1) the evi
dence of a fingerprint expert with the Federal Bureau
of Investigation that the fingerprints taken from the
accused upon his arrest were the same as those con
tained in F.B.I fingerprint records. The expert had
not made the record and had no personal knowledge
of its accuracy. Callaghan J. admitted the evidence,
stating at page 471:
Section 30 was placed into the Canada Evidence Act in 1968
[by 1968-69, c. 14, s. 4, as s. 29A]. It would appear that the
rationale behind that section for admitting a form of hearsay
evidence is the inherent circumstantial guarantee of accuracy
which one would find in a business context from records
which are relied upon in the day to day affairs of individual
businesses, and which are subject to frequent testing and cross
checking. Records thus systematically stored, produced and
regularly relied upon should, it would appear under s. 30, not
be barred from this Court's consideration simply because they
contain hearsay or double hearsay.
However, in my opinion the records in this case do
not bear the same peculiar stamp of reliability as
those possessed by a systemized fingerprint bank.
Therefore, I would conclude that in the absence of
such inherent reliability, the records should not be
admitted pursuant to subsection 30(1).
Investigation or Inquiry. Even if it is found that the
exhibits are admissible under subsection 30(1), in my
opinion exhibit «A» would be excluded by virtue of
subparagraph 30(10)(a)(i), which reads as follows:
30....
(10) Nothing in this section renders admissible in evidence
in any legal proceeding
(a) such part of any record as is proved to be
(i) a record made in the course of an investigation or an
inquiry ....
In R. v. Laverty (No. 2) (1979), 47 C.C.C. (2d) 60
(Ont. C.A.), an investigator with a fire department
made notes in the course of his investigation of a fire
at the accused's house. Zuber J.A. ruled that the notes
made under such circumstances were made in the
course of an investigation, and therefore not admissi
ble by virtue of subparagraph 30(10)(a)(i). It would
appear that an analogous conclusion may also be
made in the case at hand, as the notes which make up
the bulk of exhibit "A" were made in the course of an
investigation into the applicant's complaint. I would
therefore conclude that subparagraph 30(10)(a)(i)
precludes admission of the documents in exhibit "A"
pursuant to subsection 30(1).
3. Business record exception at common law
Even if the documentary evidence in the exhibits
does not meet the requirements of section 30 of the
Canada Evidence Act, it still may be admitted if the
requirements of admissibility at common law are
met. The provisions of section 30 are not mandatory
or exclusive. As subsection 30(11) states:
30....
(11) The provisions of this section shall be deemed to be in
addition to and not in derogation of
(a) any other provision of this or any other Act of Parlia
ment respecting the admissibility in evidence of any record
or the proof of any matter, or
(b) any existing rule of law under which any record is
admissible in evidence or any matter may be proved.
It is possible that the exhibits fall within the excep
tion for business records at common law as set down
by the Supreme Court of Canada in Ares v. Venner,
[1970] S.C.R. 608. In his book Documentary Evi
dence in Canada (Carswell, 1984), J. D. Ewart pro
vides a summary of the effect of the decision in Ares,
at page 54:
... the modern rule can be said to make admissible a record
containing (i) an original entry (ii) made contemporaneously
(iii) in the routine (iv) of business (v) by a recorder with per
sonal knowledge of the thing recorded as a result of having
done or observed or formulated it (vi) who had a duty to make
the record and (vii) who had no motive to misrepresent. Read
in this way, the rule after Ares does reflect a more modern,
realistic approach for the common law to take towards busi
ness duty records.
It appears that while most of the requirements of
the exception are met, they fail on the requirement
that the recorder have personal knowledge of the
thing recorded. In both exhibits, the recorders did not
have personal knowledge, and therefore they are not
admissible under this exception. In addition, it
appears that the exhibits consist in large part of state
ments of opinion, and not fact.
4. Public documents -exception
The requirements of the public document excep
tion were set out by Ewart as follows, at page 151 of
his text:
(i) the record must have been made by a public official;
(ii) in the discharge of a distinct public function or obligation;
(iii) with a view to a permanent record being created.
In my view, both exhibits meet these requirements.
However, there is a potential fourth requirement, that
there be a public right of access to the document. The
rationale for the public access requirement is that if a
document is available to the public, it gains a certain
amount of authority, for the public will presumably
challenge it if it is inaccurate. According to Ewart, it
is uncertain whether public access is a requirement
for the exception in Canada, as the leading case,
Finestone v. The Queen, [1953] 2 S.C.R. 107 may he
interpreted as excluding it altogether or confining the
need for it to "inquiry" documents as opposed to
"register" documents.
On my reading of the Finestone case, the public
access aspect of the public document rule has been
diluted only in so far as it relates to the registration of
ascertainable facts such as births, deaths and mar
riages. In my view, it is still necessary that there be
public access for the purposes of "inquiry" docu
ments. In this case, the exhibits in question are the
results of inquiries made pursuant to a public duty.
The rationale of public scrutiny for accuracy is not
compelling in the context of records such as the
exhibits in the case at hand which were recorded in
the expectation of privacy: Regina v. Northern Elec
tric Company, Limited et al., [1955] O.R. 431
(H. C.), per McRuer C.J.H.C., at page 468.
As I have found that it is necessary that there be a
public right of access to the exhibits in order for them
to be admissible under the public documents excep
tion, it is necessary that the respondent provide evi
dence of a public right of access. The applicant relies
on the fact that he obtainedaccess to the exhibits
under the Access to Informat i on Act. In my opinion,
however, the limited access that is available under
that Act is not equivalent to the broad public access
that is in my view necessary for the rationale of pub
lic scrutiny to be effective, i.e. that public access is a
circumstantial guarantee of reliability, in that errors
will be brought to light.
I would conclude that the reports are not admissi
ble under any of the proposed exceptions to the hear
say rule. I therefore strike them as well as the affida
vit.
MOTION OF THE APPLICANT
I would now proceed to an examination of the
applicant's claim that the respondents breached their
duty of fairness to him in deciding to hold an open
competition without affording him an opportunity to
make representations.
FAIRNESS
The Royal Canadian Mounted Police Act, R.S.C.,
1985, c. R-10, subsection 10(1), provides that civilian
employees necessary to carry out functions such as
canteen manager shall be appointed pursuant to the
Public Service Employment Act. Section 8 of this act
gives the Public Service Commission exclusive
authority with respect to whether an appointment
shall be made from within or without the Public Ser
vice:
8. Except as provided in this Act, the Commission has the
exclusive right and authority to make appointments to or from
within the Public Service of persons for whose appointment
there is no authority in or under any other Act of Parliament.
Section 11 of the Act requires that appointments be
made from within the Public Service, except where in
the opinion of the Commission such an appointment
is not in the best interests of the Public Service:
11. Appointments shall be made from within the Public Ser
vice except where, in the opinion of the Commission, it is not
in the best interests of the Public Service to do so.
Despite the fact that the statute appears to grant the
Commission the discretion to make decisions as to
whether to recruit from without or within, it is clear
that in decisions such as these that may be considered
administrative in nature, the decision-maker owes a
duty of procedural fairness in certain situations:
Nicholson v. Haldimand-Noifolk Regional Board of
Commissioners of Police, [1979] 1 S.C.R. 311. This
duty is derived from the fact that the decision-makers
are public bodies which derive their power from stat
ute, and which power, therefore, must be exercised in
accordance with the precepts of administrative law.
The applicant states that fairness in this case
demanded that the respondents allow him to make
representations to the respondents with respect to the
decision to hold an open competition. He does not
claim that all term employees should have the oppor
tunity to make representations as to the type of com
petition to be held. Rather, he stresses that the unique
circumstances of his case, such as his long tenure in
the canteen and the purported representations made to
him, required fairness in the circumstances.
In Knight v. Indian Head School Division No. 19,
[1990] 1 S.C.R. 653, Madame L'Heureux-Dubé J.
listed the factors that must be considered in determin
ing whether a duty to act fairly exists (at page 669):
The existence of a general duty to act fairly will depend on the
consideration of three factors: (i) the nature of the decision to
be made by the administrative body; (ii) the relationship
existing between that body and the individual; and (iii) the
effect of that decision on the individual's rights. This Court has
stated in Cardinal v. Director of Kent Institution, supra, that
whenever those three elements are to be found, there is a gen
eral duty to act fairly on a public decision-making body ....
Nature of the decision
Clearly, not all decisions must be made according
to the duty of fairness. One important factor to con
sider is the finality of the decision in question. As
L'Heureux-Dubé J. states in Knight (at page 670):
The finality of the decision will also be a factor to consider. A
decision of a preliminary nature will not in general trigger the
duty to act fairly, whereas a decision of a more final nature
may have such an effect ....
In this case, the decision to hold an open competi
tion was not final in effect, but rather of a more pre
liminary nature. It did not have the effect of terminat
ing his employment, but rather of changing the
circumstances under which he would have to com
pete for the position.
Relationship between applicant and respondents
There was an employer-employee relationship
between the applicant and the respondents. Tradition
ally, there are three categories of this relationship, as
set out by Lord Reid in Ridge v. Baldwin, [ 1963] 2
All E.R. 66 (H.L.):
a) master and servant — no duty to act fairly in
deciding to terminate
b) office held at pleasure — no duty to act fairly
c) office held unless cause for dismissal — duty to
act fairly on the part of the employer.
The position occupied by the applicant, being a
term position, does not fall neatly into one of Lord
Reid's categories. In Knight, L'Heureux-Dubé J.
observed that these categories did not consider the
situation where there was a non-renewal of a fixed-
term contract, which is the situation in the case at
hand. In Knight, she expressly declined to address the
implications of such a relationship. She did state,
however, that in Canada administrative law now
requires that procedural fairness is now an essential
requirement of a decision to terminate employment in
the last two categories of Lord Reid. As noted above,
however, this is not a case of a decision to terminate.
The applicant's position is that the decision to hold
an open competition was inextricably linked with a
decision not to renew him in his position, in favour of
Charbonneau. However, it is not open to me to draw
such an inference solely on the basis of the affidavit
evidence before me.
In my view, the fact that an employee occupies a
term position is not necessarily incompatible with the
existence of a duty of fairness upon the expiration or
non-renewal of the term. The tenuous nature of
his/her employment is not unlike the problems faced
by probationary employees, where a duty of fairness
has long been recognized. The content of this duty of
fairness will vary with the circumstances of each
case, and it is therefore difficult to formulate a rule as
to what the duty of fairness would require in a partic
ular situation. In this case, however, I am satisfied
that the relationship of the parties is not one that
would trigger the right to make representations as to
the form of competition, although fairness may be
required in the context of other decisions involving
term employees. In my opinion, the duty of fairness
does not extend so far as to demand in the circum
stances of this case the participation of the incumbent
in the recruitment process. Decisions as to the type of
competition are in my view a management preroga
tive, clearly entrusted to the Public Service Commis
sion by statute.
Effect of decision
There is a right to procedural fairness only if the
decision is a significant one and has an important
effect upon the individual: Knight, at page 677. Gen
erally, decisions to terminate will clearly fall within
this requirement, but in this case the applicant was
not directly terminated by the decision. His employ
ment came to an end naturally at the end of his term.
The effect of the decision to have an open competi
tion was only to deprive the applicant of certain
advantages he would have had in a closed competi
tion, or of certain appeal rights that he would have
had, had concurrent open and closed competitions
been held. In my view, these results are not on the
same level as termination.
On balance, I would conclude that there was not a
general duty on the respondents to act fairly in this
case. In my opinion, the statutory framework under
which the decision is made does nothing to modify
my conclusion as to the lack of a general right of fair
ness in the circumstances.
Discretion
It is clear law that the discretion vested in the Pub
lic Service Commission by sections 8 and 11 of the
Public Service Employment Act is not absolute, and
must be exercised reasonably and in good faith, tak
ing into account relevant considerations: see Slaight
Communications Inc. v. Davidson, [1989] 1 S.C.R.
1038 at pages 1076; Padfield v. Minister of Agricul
ture, Fisheries and Food, [1968] A.C. 997 (H.L.).
The applicant's main argument is that in exercising
the discretion to recruit within or without the Public
Service, the respondent took into account irrelevant
considerations, the desire to have Charbonneau
returned to his job. If this were the only considera
tion, I would think that the applicant would be enti
tled to certiorari. I was strongly encouraged to draw
such an inference by the applicant, and equally urged
by the respondent that the decision to have an open
competition was made in good faith, with the goal of
providing as many qualified candidates as possible.
In my view, the conclusion proposed by the applicant
hinges on findings of credibility that should not be
made solely on the basis of the affidavit evidence
before me. In my opinion, unless the decision could
be said to be based entirely on this irrelevant factor, it
is inappropriate to grant certiorari; see Cantwell v.
Canada (Minister of the Environment) (1991), 6
C.E.L.R. (N.S.) 16 (F.C.T.D.).
Estoppel
In this case, it appears that Lebel, by his own
admission in affidavit evidence, did not have the
authority to promise the applicant that a closed com
petition would be held, if such a promise was indeed
made. In that case, his remarks cannot found an
estoppel against the respondents. At most, the appli
cant may have an action for breach of warranty of
authority against Lebel, but that is not the concern of
this Court on this application. See Wade, Administra
tive Law (5th ed.), at pages 335-346.
Reasonable apprehension of bias
Bias is clearly a ground for setting aside a decision
in some cases. The existence of bias or a reasonable
apprehension thereof, however, is a question of fact.
It is not sufficiently clear to me whether Campagna,
as the applicant alleges, was biased in favour of
Charbonneau at the expense of the prospects of the
applicant remaining in the position. Campagna
denies that he had any bias against the applicant.
Once again, such an allegation of bad faith requires
more, in my view, than affidavit evidence or infer
ence in view of the denial of bias
CONCLUSION
In my view, this is not an appropriate case for the
exercise of my discretion and grant a writ of certio-
rari. It appears to me that there were in this case
numerous breakdowns of communication and misun
derstandings on both sides. In addition, the checks
and balances that are imposed in order to prevent
abuse in appointments to the public service also
appear to have failed at crucial points in the process.
However, in my view the applicant has not met the
burden of establishing that a duty of fairness was
owed in the circumstances, that the decision to have
an open competition amounted to an abuse of discre
tion, or that there was an estoppel or reasonable
apprehension of bias.
The application is dismissed with costs to the
respondents.
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