Kibale v. Canada
T-1891-88
Dubé J.
2/11/92
22 pp.
Merit principle -- Action for damages by which plaintiff alleged defendant's servants denied him economist position with Department of Transport -- Public competition announced by Public Service Commission in May 1981 to fill position of Strategic Economist-Analyst with Transport Canada -- Decision to use overlapping procedure known as "piggy-back" to fill three vacant positions (other two, managerial positions) -- Plaintiff told on August 14, 1981 no candidate qualified for Analyst position -- When complaint of discrimination dismissed, brought action for damages in Federal Court on October 6, 1988 -- Defendant filed application to strike on ground action statute barred, as brought over six years after cause of action arose -- Application allowed by Trial Division -- Decision reversed by Federal Court of Appeal on ground application to strike premature -- If fault by defendant's servants, fault committed in Ottawa where events giving rise to action occurred and where all persons involved present -- Ontario limitation of actions rules to be applied -- Under Ontario Limitations Act, s. 45(1)(g) action for damages statute barred six years after right of action arose -- Cause of action arose when plaintiff told in August 1981 not qualified for Analyst position -- Cause of action statute barred six years later, in August 1987 -- Plaintiff's action with respect to Analyst position must be dismissed -- Remains to be determined at what point material facts forming basis of cause of action regarding two managerial positions were discovered by plaintiff, or should have been discovered if he had exercised reasonable diligence -- Plaintiff's ignorance of possible entitlement to two managerial positions significant fact -- Could not have discovered this significant fact even exercising reasonable diligence -- Plaintiff's cause of action in respect of two managerial positions not statute barred -- Action at bar not based on discrimination but on Crown Liability Act, s. 3(1)(a) -- Whether merit principle laid down in Public Service Employment Act, s. 10 observed -- Whether failure to comply constituting fault -- Merit principle in Public Service recognized and accepted by courts -- Use of "piggy-back" procedure not appropriate in circumstances and misused along the way -- Requirements of Analyst position and those of two managerial positions not identical -- Selection system misused since all candidates not assessed by same members of board -- Failure of Crown's servants to conduct staffing process properly tort against plaintiff, but cause of action in respect of Analyst position prescribed -- Irregularities committed by defendant's servants did not cause plaintiff to lose two managerial positions, for which not qualified -- Merit principle observed in respect of those two positions -- Action dismissed -- Limitations Act, R.S.O. 1980, c. 240, s. 45(1)(g) -- Crown Liability Act, R.S.C. 1970, c. C-38, s. 3(1)(a) -- Public Service Employment Act, R.S.C. 1970, c. P-32, s. 10.