Kibale v. Canada
A-1486-92
Marceau, Décary and Létourneau JJ.A.
8/2/94
9 pp.
Appellant brought action in tort pursuant to Crown Liability Act, citing wrongful failure by defendant to appoint him to one of positions concerned in Public Service competition held in 1981, for position of strategic economist-analyst in Strategic Analysis Branch of federal Department of Transport, in which appellant participated and which he said led to his being best candidate -- Appeal from Trial Division dismissing action-Appellant maintained that by failing to appoint him to one of positions concerned in public competition, defendant's employees committed faults constituting common law tort that could be basis for action in damages -- After attending two interviews, appellant received telephone call from staffing officer in Department of Transport telling him neither of two candidates selected at end of initial interview selected for analytical position -- After investigation appellant learned had obtained best marks of five candidates at initial interview, staffing officer had decided not to draw up eligibility list for position, he was only placed fourth despite best marks in interview, and finally that position was filled nine months later -- Appellant accordingly complained of irregularities in holding of competition and questioned whether merit principle observed -- Trial Judge right to conclude appellant's action could not be allowed -- Action prescribed in entirety based on Ontario Limitations Act, s. 45(1)(g) -- Only ignorance of significant facts on which cause of action based can delay term a quo of prescription period, not those which investigation may disclose and which only serve to support basic aspects of action -- Simply finding irregularities existed in way competition held and proof appointment made without observing merit principle not sufficient basis for action for damages -- Such action only admitted on proof of wrongful act from which damage directly resulted -- Common law does not recognize concept of special civil wrong for breach of legal obligation -- Causal link between injury allegedly sustained, namely not being appointed, and irregularity or deficiency mentioned could only exist if appellant had acquired some right to such appointment: success in Public Service competition not in itself source of substantive law -- Appellant not able to show existence in his case of first condition for action in tort, namely commission by one or other of Crown servants involved of wrongful act at common law, tort of negligence, which led to his not being appointed to one of positions involved in competition-Crown filed cross-appeal against Trial Judge's decision, concluding costs would be paid by each party -- Trial Judge's discretion not exercised in judicious manner -- Appeal dismissed with costs and cross-appeal dismissed -- Crown Liability Act, R.S.C. 1970, c. C-38-Limitations Act, R.S.O. 1980, c. 240, s. 45(1)(g) (am. by S.O. 1990, c. L.15).