Digests

Herzig v. Canada (Department of Industry)

A-94-01

2002 FCA 36, Malone J.A.

28/1/02

10 pp.

Appeal from Motions Judge's refusal to grant order in nature of mandamus, certiorari (2001 FCT 39; [2001] F.C.J. No. 180 (QL))--Appellants, employees of Trade-marks Opposition Board requesting formal review of classification at PM-06 (Programme Administration) group and level-- Classification Committee unanimously decided positions could not be classified in Law (LA) Group--Appellants filed grievance--Pursuant to Treasury Board's Classification Grievance Procedure, grievances referred to Classification Grievance Committee--Committee unanimously reporting LA Group "best fit" for positions--Article VI.A.1 of Classification Grievance Procedure stating Deputy Department Head's Nominee may either confirm recommendation of Committee, make decision in cases of majority and minority report, or in case of unanimous recommendation, advise Deputy Head that disagrees with recommendation--If Nominee rejecting unanimous recommendation, Deputy Head must personally approve new decision--In July 1999 Nominee notifying appellants final decision would be delayed pending consultative process with Department of Justice set out in Bulletin No. 48-87--Parties agreed that Bulletin not applicable to grievances--In December 1999 Department of Justice disagreeing with Committee's recommendation--On January 5, 2000 appellants filed application for judicial review requesting mandamus requiring Nominee to implement previous decision to confirm Committee's unanimous recommendation-- January 11, 2000 letters from Nominee advising appellants positions would not be reclassified in LA group--On January 13, 2000 appellants commenced second application for judicial review requesting certiorari to quash January 11, 2000 decision--In March 2000 employer rescinded January 11, 2000 decision denying grievance--Agreed Deputy Minister would refrain from rendering decision on grievances until disposition of appeal--Appellants arguing that in approving Committee's report, Nominee exercised discretion in appellants' favour, rendered functus officio--Appeal dismissed--Principle of functus officio holding, as general rule, where final decision rendered by administrative tribunal acting in adjudicative capacity, matter concluded and no amendment can be made to decision in absence of right of appeal--Only exceptions where tribunal or decision-maker authorized by statute to reconsider decision, slip in drawing up decision, error in expressing manifest intention of decision maker, when decision void--However courts will not issue mandamus to compel tribunal or decision maker to make particular decision, when no decision made or when decision-making power discretionary in nature--Motions Judge correctly determined Nominee never reached final decision on grievances as verified by: (1) Nominee's July 1999 letter indicating could not make decision until consultative process completed; (2) consultative process not completed until January 2000, well after Nominee's "approval" of report, suggesting approval merely matter of form, not in nature of decision; (3) January 11, 2000 decision evidence Nominee continued to follow procedure set out in July 1999 letter--Court not entitled to speculate as to why Nominee approving report--Record indicating Committee intended decision to be treated as recommendation and to be acted upon accordingly--Error in permitting Department of Justice to determine correct classification improper fettering or unauthorized sub-delegation of discretion--Pursuant to Art. VI.A.1, Nominee must decide finally whether or not to approve Committee's recommendation--Nominee free to consult with others provided any decision truly that of Nominee--Any views received by Nominee must be disclosed to appellants who are to be given reasonable opportunity to respond--Since Attorney General acknowledging January 11, 2000 decision breach of duty of fairness, of no force and effect, not necessary for Court to exercise discretion to issue formal order setting it aside--Duty on Nominee to comply with requirements of Art. VI.A.1, either by confirming or rejecting recommendation of August 23, 1999.