Dirksen

T-783-93

Between: Esther Ruth Dirksen, Plaintiff, and Her Majesty the Queen in Right of Canada, Defendant.

Reasons for Order

Strayer, J.

Relief Requested

The Defendant moves, on all grounds set out in Rule 419[1], for this action to be struck out.

Conclusion

I shall set out briefly the Plaintiff's contentions as to the nature of her claim. In doing so I do not wish to imply that these contentions have all been properly pleaded. But deficiencies in pleading might be cured by amendments. The basic question is as to whether, even if adequately pleaded, these contentions could amount to a cause of action.

In essence the Plaintiff says that she suffered injury at the hands of the representatives of the Defendant officers of the department where she is employed, Revenue Canada. This injury arose because after she had been identified as the top candidate in a competition for the position of Business Audit Group Head on January 18, 1991, she was not allowed, when an appeal was launched from that decision to a Public Service Appeal Board, to see the documents of Revenue Canada relating to the competition and to the appeal nor was she allowed to attend a "disclosure meeting" held by Revenue Canada which was attended by the unsuccessful candidates who were appealing the decision. As a result, she says, although she was allowed to appear as an intervenor before the Board at the appeal, she did not have the material available to make the presentation which would have caused the Board to dismiss the appeals. As a result, the Board allowed that appeal on May 15, 1991. She then sought judicial review of that decision and she succeeded before the Federal Court of Appeal in having the decision of the Appeal Board set aside. She was finally appointed as Business Audit Group Head on August 4, 1992. She says now in her argument that as a result she is entitled to damages to compensate her for lost salary [that is, the additional salary which she would have received had she been appointed shortly after her initial success on January 18, 1991, in the competition instead of having to wait until August 4, 1992, when she was finally appointed], her legal fees incurred in the judicial review proceeding, and for:

mental anxiety and defamation of character as a result of the Defendant's actions in denying her rights to natural justice.

In opposing the motion of strike, the claimant may have raised some arguable questions of law as to whether she was in fact denied natural justice or fairness in common law terms or denied the "principles of fundamental justice" as allegedly guaranteed to her in these circumstances by paragraph 2[e] of the Canadian Bill of Rights. Counsel for the defendant made strong arguments against there being any such denial of fairness or of any other rights of the Plaintiff, relying essentially on the argument that any right of disclosure to the Plaintiff had to be found in the Privacy Act and the Access to Information Act to which the Plaintiff had never made resort even though shehad had time to do so.

I believe I can put all these issues aside, even assuming that they raise arguable questions of law which might, in other circumstances, be left to the Trial Judge. It appears to me that the basic flaw in the Plaintiff's case is that she has not demonstrated any basis for liability in damages on the part of the Defendant. She says that her claim is based in tort but she has not been able to name any relevant tort. Nothing in her pleadings or argument suggests the elements of defamation. As she is no longer represented by counsel I have reflected carefully on whether negligence, the most flexible of torts, might arguably form a basis for an action. But for it to be applicable there would have to be a duty of care owed by the representatives of the defendant, to the plaintiff, to take care that she should have all relevant material in their possession required by her to support her point of view in the Appeal Board hearing. By virtue of subsection 21 of the Public Service Employment Act she was not a party to that appeal. It was the deputy head of the department who had the burden of defending the outcome of the competition: she was apparently allowed to appear at the hearing of the appeal, but only informally as an intervenor. I can find no basis for such a duty of care owed by a party to an intervenor in an appeal proceeding. The plaintiff's remedies if any for such alleged wrongs are to be found in administrative law and not in the law of torts.

I therefore conclude that the Statement of Claim discloses no cause of action, nor could it even if amended to express fully the Plaintiff's contentions in support of her claim for damages.

It might also be observed that insofar as the plaintiff's claim to lost wages is concerned I can see no basis, even accepting all of her contentious as true, for this Court to conclude that she had a right to the position of Business Audit Group Head as of some particular earlier date. Indeed, as counsel for the Defendant pointed out, section 21 of the Public Service Employment Act [ R.S.C. 1985, c. P-33] specifically contemplates that where an unsuccessful candidate appeals a selection made by competition the appointment need not be made until the appeal is determined. In this case no right could be said to have existed to the appointment until after the determination by the Appeal Board. That Board found her not to be entitled and its decision had legal effect until set aside by the Federal Court of Appeal, after which she was appointed.

The application to strike out the Statement of Claim will therefore be allowed. No costs will be awarded.

[Sgd.] ¨B.L. Strayer", Judge

Vancouver, B.C.

November 1, 1993