Digests

Harquail v. Canada (Public Service Commission)

T-736-04

2004 FC 1549, Kelen J.

4/11/04

15 pp.

Judicial review of Public Service Commission's decision denying request for leave of absence without pay to allow applicant to seek nomination and stand as candidate in 2004 federal election--Applicant currently employed as Counsel in Environmental and Regulatory Prosecutions in federal Department of Justice--Applicant submitting request for unpaid leave of absence under Public Service Employment Act, s. 33(3) to seek nomination as candidate for riding of St. Catharines, Ontario, in 2004 federal election--S. 33(3) of Act providing Commission may grant employee leave of absence without pay to seek nomination as candidate and be candidate for election if Commission believing usefulness of employee to public service would not be impaired by reason of employee having been candidate--Applicant's superiors supporting request for leave of absence--Deputy Minister of Justice not of view applicant exercising considerable power in very public, visible way over people in riding and no reason to deny applicant's leave of absence request--Commission e-mailing applicant's superior to request clarification regarding responsibilities listed in applicant's job description --Commission subsequently advising applicant request for leave of absence denied because applicant occupying position with significant public visibility and degree of authority-- Consequently applicant not seeking nomination as candidate in federal election--Whether application moot and should be considered on merits--Test for mootness involving two branches: whether required tangible and concrete dispute between parties has disappeared and, if so, whether Court should exercise discretion to hear case anyway--No longer concrete dispute between parties herein--Applicant's purpose for requesting leave of absence to allow her to seek nomination for candidacy and possibly run for office in 2004 federal election but purpose no longer existing since election took place--Court still having discretion to hear case on merits in appropriate circumstances--As to exercise of discretion, Court should examine whether adversarial context prevails; whether decision under review will have some practical effect on rights of parties and not be waste of judicial resources; whether judgment by Court seen as intrusion into legislative branch of government--Adversarial context existing where case vigorously and fully argued by parties-- Parties in present application maintaining adversarial stance and arguing positions with determination--Relief sought by applicant having no practical effect on rights since applicant no longer requiring leave of absence for 2004 federal election--Court may choose to expend judicial resources to hear case of recurring nature but evasive of review--Present application evasive of review because of strict timelines involved--However, future cases involving request for leave of absence to seek nomination not necessarily evasive of review--Court's discretion may also be exercised if application raises issues engaging national or public interest-- Although present case implicating important values, decision very factual, applying discretely to applicant, and not engaging public interest in practical sense--Given decision by Court not having practical effect for applicant or public, judicial resources should not be expended to hear present application --Not proper role of Court to render decision having no practical effect on rights of parties and being purely academic--Application moot but merits of case addressed for appeal purposes--Appropriate standard of review of Commission's decision that of reasonableness simpliciter-- Decision reviewed on reasonableness simpliciter standard only to be interfered with if not supported by reasons standing up to somewhat probing examination--Commission's reasons not standing up to somewhat probing examination and not tenable based on evidence--Commission adopting overly simplistic approach in analysing employee's usefulness--While inquiry into employee's usefulness to public service must be forward looking, not reasonable for Commission to consider every remote responsibility possibly falling within scope of employee's position at some future point--Inquiry to be conducted within realistic context--Responsibilities applicant likely to have in near future should have been considered-- Not sufficient for Commission to base conclusion that applicant occupied position with significant public visibility on mere statement that applicant "could be" required to act as lead counsel in important, complex or politically sensitive prosecutions--Commission should have conducted more comprehensive inquiry to determine whether applicant likely to be responsible for such cases in near future--Commission should not have set aside Deputy Minister's recommendation to grant applicant leave of absence--Applicant's superiors in best position to know scope of applicant's responsibilities and evaluate present and future visibility of applicant's position-- Not reasonable for Commission to set aside recommendation without conducting own meaningful inquiry into applicant's responsibilities--Decision unreasonable--Application dismissed as moot--Public Service Employment Act, R.S.C., 1985, c. P-33, s. 33(3) (as am. by S.C. 2003, c. 22, ss. 17, 206(s)(E)).