Kilpatrick

Parties/Partis:Jeanette A. Kilpatrick v. Her Majesty the Queen and Attorney General of Canada and Public Service Commission Canada Employment & Immigration Commission

Judgment/Jugement Date: 1986-06-16

REASONS FOR JUDGMENT

COLLIER J.

The plaintiff's action is for declaratory relief and damages. Her claim is based essentially on s. 30(1) of the Public Service Employment Act, R.S.C. 1970, c. P-32:

Leave of Absence

30.(1)Where an employee is on leave of absence and another person has been appointed for an indeterminate period to the position that was occupied by him, the employee is entitled, during his leave of absence and for a period of one year thereafter, to be appointed, without competition and in priority to all other persons, to another position in the Public Service for which in the opinion of the Commission he is qualified.

She alleges she ought to have been appointed, following a leave of absence, to one of two positions with the Canada Employment and Immigration Commission ("the C.E.I.C."). I shall also sometimes refer to it as the Employment Commission.

The plaintiff, at the time of trial, was 45 years old, married, with two children. In 1974 she commenced working part-time with Canada Post. In 1977 she was employed there on a full time basis. In April 1979, she was appointed as senior assistant in the Cumberland, B.C. Post Office. The Post Master was Mrs. Anita Foulem.

On November 18, 1979, the plaintiff injured her back in a toboganning accident. She was unable to carry on at her job. After a period of sick leave, she took leave of absence effective February 2, 1980. In June of 1980, she was advised that her former position had been filled "indefinitely".

In the latter part of December 1980, she felt her condition had cleared up sufficiently to return to work. Her doctor concurred. On January 6, 1981, she advised the Zone Postmaster of her availability.

Because of lack of personal transportation, she confined her request for employment to Cumberland. On April 29, she extended it to the Comox Valley.

It is not in dispute that the plaintiff's "priority" period [see ss. 30(1)] was from January 21, 1981 to January 21, 1982.

During that time, two positions came open in the Public Service in the Comox Valley area. They were as clerks with the Canada EmploymentCentre (CEC) at Courtenay, B.C. The positions were classed as C.R. 3. They were assigned numbers 71904 and 71027.

Now, the bureaucratic horror story begins.

The C.E.I.C. wished to fill the two positions. The evidence indicates they had two particular persons, already working for C.E.I.C., eligible for appointment. The British Columbia District Office of the Public Service Commission (the P.S.C.) felt the plaintiff met the basic requirements, in respect of education and experience, for the positions.

The official in the P.S.C., supervising the matter, was Mr. E. Pearce, Chief of Staffing Services in the B.C. District Office. The supervising official in C.E.I.C. was Mr. T. McMullen, Regional Chief of Staffing for the C.E.I.C., B.C.-Yukon region.

Pearce referred the plaintiff's name to C.E.I.C.

The practice, in that situation at that time, was as follows. The P.S.C. made an initial determination that a person with priority entitlement appeared qualified for the vacant position. The department concerned, such as C.E.I.C., would then assess the qualifications of that person for the particular job. That usually included a personal interview. If the department felt the priority person was qualified, and the P.S.C. agreed, then the appointment was made. If the department felt the priority person was not qualified, and the P.S.C. agreed, the person was not appointed; the priority status for the position was removed, and the vacancy filled in the normal manner. Finally, if the P.S.C. did not accept the department's view, then the P.S.C. could withhold clearance; so long as clearance was withheld, the position could not be filled on a permanent basis.

In this case, the C.E.I.C. felt, on information before it in July and August 1981, that the plaintiff was not qualified for the positions. It took the view a personal interview with the plaintiff was unnecessary, if not useless.

The C.E.I.C. personnel relied, at first, on an absenteeism history while the plaintiff had worked in the post office at Cumberland. They also relied on a formal evaluation report by Mrs. Foulem. It was, in some areas, unfavourable in respect of the plaintiff's performance, as the senior assistant.

The P.S.C. pointed out the plaintiff's absence from work was only as a result of the back injury which had incapacitated her; it seemed apparent she was physically capable of carrying out the CR-3 work. The P.S.C. noted, as well, the evaluation report assessed the plaintiff only in respect of the short time she had been the senior assistant; it provided an earlier letter given by Mrs. Foulem, for use by the plaintiff, indicating the plaintiff had "...performed admirably..."

The P.S.C. contended the plaintiff should be interviewed. The C.E.I.C. refused. The vacant positions had been filled, by the C.E.I.C., on an acting basis. The P.S.C., because of C.E.I.C.'s refusal to interview,would not issue a clearance for the positions to be staffed.

This unseemly stalemate continued until the plaintiff's one year priority period expired on January 21, 1982. The C.E.I.C. then, in February and March, staffed the positions with the persons it appeared to have always had in mind.

The plaintiff knew practically nothing of this bureaucratic tug of war. She did know, from Pearce, that the P.S.C. felt she was qualified for the CR 3 positions. But she never heard a word from C.E.I.C. on that score. Nor was she interviewed. She was factually in the dark.

The plaintiff had, commencing in her leave of absence and continuing into her one year priority period, upgraded her skills at a business college, and, as well, worked there. She was referred for a CR 4 job with the R.C.M.P. in the Comox area. After investigation and interview, the R.C.M.P. concluded she was not qualified for the CR 4 position: if the position had been rated CR 3, she would have been hired by the police force.

That ends, except for one matter, my summary of the facts.

Pamela L. Good was the District Director of the B.C. District Office of the P.S.C. She gave evidence on examination for discovery and at trial. There was a difference of view between her and Mr. McMullen as to the powers and authority of the P.S.C. versus the department (C.E.I.C) in the procedures to be followed. These differences arose, in part at least, from interpretations put upon Exhibits 11 and 23. These are documents dealing with delegation of Staffing Authority by the P.S.C. to the Deputy Minister of Employment and Immigration and the Chairman of the C.E.I.C.

Ms. Good's view was that when a priority person was referred to a department, the department was required to conduct an interview, make a decision as to whether or not the person was qualified for the job, and give the results to the P.S.C.; the powers of appointment or non-appointment remained with the P.S.C.; the P.S.C. had, as well, the power to withhold clearances for the staffing of the vacancy. Further, she said, the P.S.C. had the right to accept or reject the department's conclusion; in the event of disagreement, as to whether a priority person was qualified, the P.S.C. could try and convince the department the person was qualified, or freeze the position.

Here, the P.S.C. froze the position until the plaintiff's one year priority status terminated.

Ms. Good's view was that all the P.S.C. delegated to a department was "the conduct of the interview". She agreed that the P.S.C. could, technically, itself conduct the interview; she felt, understandably, that would be very unsatisfactory: the department, where the vacancy occurred, was in a much better position to assess qualifications.

Mr. McMullen's view was that the department had the delegated authority to make the assessment of the plaintiff's qualifications for the particular job; the department had the right to decide whether or not aninterview should be held. The witness's view was that the department, by virtue of Exhibit 11, had the delegated authority to appoint, or not appoint, under ss. 30(1).

I am not convinced all these differences of view are material. One thing is clear. The P.S.C. felt it had the right to insist an interview be held before a final assessment was made; C.E.I.C. felt it had the right to assess, with or without, a personal interview.

I turn now to the relief sought.

When this action was commenced, the sole defendant was Her Majesty the Queen. At the end of argument following the first hearing of this case, I expressed the view consideration should be given to adding other defendants. That was done. The action then came on, some time later, for further hearing and argument.

Paragraphs 13(a),(b) and (c) of the plaintiff's prayer for relief are as follows:

13.The Plaintiff therefore claims:

(a)A declaration that she was denied her statutory priority of appointment pursuant to section 30(1) of the Public Service Employment Act.

(b)A declaration that she is entitled to be appointed to one of the two positions within the Unemployment Insurance Commission for which she would have been qualified had the positions been open during her period of statutory priority.

(c)Damages for loss of earnings incurred as a result of her being denied appointment to a position for which she would have been qualified had she been granted her statutory priority.

For the plaintiff it was argued she had been denied the opportunity of priority of appointment by reason of the action of the C.E.I.C. in refusing to interview her before expressing the opinion she was not "qualified" for the CR 3 positions; the P.S.C. had negligently failed to intervene, or to uphold the plaintiff's rights; the plaintiff should have been appointed to one of the two positions. Failure to be appointed, it is said, has resulted in a diminution of earnings from September 1981 to the date of trial; damages for that loss, and exemplary damages, are sought.

Counsel for the plaintiff contended there was intentional failure, or at the least, negligent failure, by the C.E.I.C., to carry out the duties set out in the Public Service Employment Act, and particularly in ss. 30(1); further, the C.E.I.C. had, in the circumstances here, abused,or exercised its discretionary powers in bad faith; the principle in Roncarelli v. Duplessis [1959] S.C.R. 121 applies.

I have a great deal of sympathy for the plaintiff who was unwittingly caught up in this travesty between two government commissions.

But, in my view, breach of statutory duty, intentional or negligent, as described in Murray v. The Queen (A-77-81, unreported, F.C.A., reasons dated April 6, 1983) and referred to in Beaton v. P.S.C. et al. (T-9609-82, unreported, F.C.T.D. (Strayer, J.) reasons dated January 3, 1984), has not here been established.

In the Beaton case, Strayer, J. wrote, at pp. 7-8, in respect of intentional, or negligent, breach:

It is perhaps more important to address the question of damages. At the outset it should be noted that Mr. Beaton was not at the material times a government employee and his complaint is not one of wrongful dismissal or other breach of contract. Therefore he cannot base any claim for damages in contract. It remains to be seen whether he can assert a claim for damages in tort or for breach of statutory duty.

Taking the latter first, the Supreme Court of Canada has recently held, in The Queen v. Saskatchewan Wheat Pool 1983), 143 D.L.R. (3d) 9, that a breach of statutory duty does not per se amount to an actionable tort, at least if the legislature has not expressly provided for such civil liability. Dickson, J. for the Court held that instead a breach of statutory duty could be evidence of negligence on the part of a defendant for the purpose of establishing liability under the general principles of tort law. While the Federal Court of Appeal in Murray v. Her Majesty the Queen (April 6, 1983, unreported), nevertheless also considered the question of whether Parliament, while not expressly so providing, had intended to create a right of action for damages for breaches of the Public Service Employment Act, it came to the conclusion having regard to all the other remedies provided under that Act and its silence on the matter of actions for damages, that Parliament did not so intend. Further, it held, having regard to The Queen v. Saskatchewan Wheat Pool (supra) that there could not be damages awarded for a statutory breach of duty in the absence of any findings of negligent or, semble, intentional breach of duty. The requirement for a finding of negligence was further confirmed in Baird v. The Queen (1983) 148 D.L.R. (3d) 1 (F.C.A.) at 8-9.

In the present case, the reasoning in the Murray case may not apply directly to negate a right of action for damages, because the Public Service Employment Act does not provide other remedies for a person such as the plaintiff who was not, at the relevant time, an employee. Following the Supreme Court decision in The Queen v. Saskatchewan Wheat Pool, however, it would appear that no right to damages should be implied for breach of a statute unless such is expressly provided, and it is not so provided by the Public Service Employment Act.

It would therefore appear that the plaintiff could not succeed ina claim for damages unless he can show some intentional or negligent breach of duty recognized in the general law of tort. It should be noted that in cross-examination the plaintiff agreed that each of the open competitions in which he participated were conducted fairly as far as he knew from his personal knowledge. There was no evidence indicating a wrongful intention on the part of anyone nor of a conspiracy to prevent Mr. Beaton from obtaining employment in either of these positions. Nor was there any evidence upon which a case could be established in negligence.

The C.E.I.C., when Mrs. Kilpatrick was referred for assessment, relied essentialy on the formal evaluation by the Post Office officials. After the P.S.C. advised of the earlier laudatory recommendation by Mrs. Foulem, the Employment Commission stuck to its opinion. It also confirmed its decision not to have a personal interview.

I have a suspicion, but that is all, that the Employment Commission was partly motivated by its preference for its own "qualified" employees over the plaintiff. The plaintiff alleges intentional breach of statutory duty, and bad faith in exercising the discretion given it as to interview and assessment. The onus of proof is on the plaintiff. The evidence, in my view, is not sufficient to warrant a finding to that effect against McMullen, or those under him.

The evidence is insufficient to support any finding of some kind of tortuous conspiracy to deprive the plaintiff of an opportunity of filling one of the vacancies.

As to negligent breach, again, I cannot find sufficient evidence.

The rules of the game were technically complied with. The plaintiff was referred to the Employment Commission. In accordance with the practice, it looked into her file, and concluded, in its opinion, she was not "qualified" for the positions. It chose to make the assessment without a personal interview. Even with pressure from the P.S.C., it refused to budge. But, I am unable to see any negligent breach of statutory duty.

Counsel for the plaintiff contended the Employment Commission had abused the discretion given it, in respect of assessing qualifications. The Roncarelli case was referred to. In the Beaton decision, Strayer, J., dealt with Roncarelli, at pp. 8-9:

I might add that counsel for the plaintiff, in arguing that the breach of a legislative provision can give rise to an action for damages, cited two decisions of the Supreme Court on appeals from the Province of Quebec: Roncarelli v. Duplessis [1959] S.C.R. 121 and Corporation de l'Hopital Bellechasse v. Pilotte (1974) 56 D.L.R. (3d) 702. I have no difficulty in distinguishing these cases. With respect to the Roncarelli case the plaintiff there had, prior to the wrongful intervention of the defendant Premier of Quebec, the enjoyment of a privilege in the form of a liquor licence. This was taken away from him. It was established that the cancellation of his licence wascaused by the intervention of the Premier, and the Premier had no lawful authority to so intervene. Moreover, damages were sought pursuant to article 1053 of the Civil Code of Quebec which, in its general provisions for damages for wrongful injury, creates a delictual liability which has no exact counterpart in the common law of torts. In the present case, by contrast, the plaintiff did not have a vested interest which was denied to him but rather was seeking employment. What was done by the Public Service Commission was well within its authority. Any liability would have to be based on the law of tort which does not recognize general liability for injury but only where the claim can be brought within one of the established causes of action such as negligence.

I agree with my colleague's statements, and apply them to this case, with one comment. Mrs. Kilpatrick may be said to have, in contrast to the Beaton case, a vested interest. But for the reasons I have already given, I am unable to find any denial, legally actionable, of that interest.

I turn now to the defendant P.S.C.

There is no evidence of any kind to warrant a finding of intentional breach of duty. In respect of negligent breach of statutory duty, it was said the P.S.C., when the Employment Commission refused to interview, ought to have conducted an interview itself, and then made the appointment.

There was, in my view, no duty to take this step, and in the circumstances, no breach.

The plaintiff has a serious difficulty in this case. Even if the C.E.I.C. had interviewed her, it could still have come to the opinion, absent bad faith, she was not qualified. The P.S.C. could then have accepted that opinion, and determined the plaintiff was, pursuant to ss. 30(1), not entitled to be appointed in priority.

Damages:

Counsel for the plaintiff confined the claim for loss of earnings from September 1981 to the date of commencement of trial in September 1984. September 1981 is when the battle line between the two Commissions was drawn. The salaries for the two CR 3 positions at that time were $16,400 and $16,900, approximately. In September 1984, the scale was $20,000.

The plaintiff testified she had endeavoured to find other employment in the three year period. She had some success with part-time and temporary work. She earned approximately $8,000.

On the basis the plaintiff should, and would, have been appointed in September 1981, her mathematical net loss of earnings would perhaps have been in the neighbourhood of $45,000. But many contingencies would have tobe considered, and allowed for. Doing the best I can on the evidence before me, I assess general damages for diminution of earnings at $35,000.

The plaintiff seeks exemplary damages because of the conduct of the Commissions, particularly the C.E.I.C. There are, in my opinion, no grounds for such an award. Exemplary, or punitive, damages come into play whenever the conduct of a defendant has been sufficiently outrageous to merit punishment. The courts in England have narrowed the situations in which punitive damages can be awarded. But they have set out certain categories in which an award of exemplary damages might be made:

The first category is oppressive, arbitrary or unconstitutional action by the servants of the government. I should not extend this category - I say this with particular reference to the facts of this case - to oppressive action by private corporations or individuals. Where one man is more powerful than another, it is inevitable that he will try to use his power to gain his ends; and if his power is much greater than the other's, he might, perhaps, be said to be using it oppressively. If he uses his power illegally, he must of course pay for his illegality in the ordinary way; but he is not to be punished simply because he is the more powerful. In the case of the government it is different, for the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service.

(Rookes v. Barnard [1964] A.C. 1129 at 1226)

I cannot classify the actions of either, or both, Commissions as oppressive, arbitrary or high handed, warranting punishment by way of exemplary damages.

The plaintiff's action has to be dismissed. In the unfortunate circumstances here, I exercise my discretion, and direct the dismissal be without costs.

F.U. COLLIER, Judge