PUBLIC SERVICE |
Labour Relations |
Cahill v. Canada (Attorney General)
T-28-01
2002 FCT 773, Layden-Stevenson J.
11/7/02
12 pp.
Application for judicial review of recourse officer's decision dismissing applicant's complaint filed with Public Service Commission (PSC) not being treated in accordance with his statutory priority entitlement pursuant to Public Service Employment Act, s. 30(1) (priority entitlement to all new positions for employees on leave of absence whose position backfilled by another person)--Issue whether matter moot; if not, whether PSC policy regarding priority status persons contravening Act, s. 30(1)--Since filing complaint in January 2000, when had no job, applicant accepted position in Public Service--Application dismissed--Issue moot as failing to meet "live controversy" test--In any event, policy not contravening Act, s. 30(1)--Administrative infrastructure set up to link individuals to priority jobs being staffed--Nothing in Act specifying nature of infrastructure--Two components: one for indeterminate positions, term positions exceeding 12 months; one for shorter term positions--Overall, operational preference of PSC to focus on referral of priority persons to indeterminate, long-term duration term jobs, ensuring alternate mechanism for direct access, by priority persons, to shorter-duration term jobs--Applicant submitting second component policy has effect of allowing PSC to exempt term appointments under 12 months, term extensions from provisions of Act, s. 30(1), thereby violating Act--While policy may be binding internally on those required to implement it, it cannot be used or relied upon as vehicle to create external rights--Basic underlying principle that judicial intervention in government policy inappropriate in absence of successful challenge under Charter: Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281--Apparent from Act, s. 4(1), Act as whole, that Parliament intended to confer on PSC broad powers with respect to administration of Act--Court's intervention with respect to policy in question inappropriate, unwarranted--Even assuming substantive review of decision appropriate, conclusions of recourse officer compelling-- Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 4(1), 30(1) (as am. by S.C. 1992, c. 54, s. 20).