Date: 20040804
Docket: T-2242-03
Citation: 2004 FC 1055
Vancouver, British Columbia, Wednesday, the 4th day of August, 2004
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
CHRIS HUGHES
Applicant
and
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
REASONS FOR ORDER AND ORDER
[1] The issue in the present application is whether there is anything to judicially review.
[2] In July 2001, Mr. Hughes was determined to be unqualified for a position as a Collections Officer in the Revenue Collections division of what was then called the Canada Customs and Revenue Agency ("the CCRA"); this decision was made according to an internal selection process called the "Staffing Program". Mr. Hughes did not bring a court challenge of the decision. However, in December 2002, Mr. Hughes began an effort to re-open the decision by writing to the Commissioner of the CCRA complaining about the outcome of the selection process. This effort resulted in a letter of response from the Assistant Commissioner of the Human Resources Branch of the CCRA dated November 5, 2003 explaining that, according to the Staffing Program, there is no further recourse available.
[3] By the present application Mr. Hughes attempts to characterize the contents of the November 5, 2003 letter as a decision which is subject to judicial review. I do not agree with this characterization.
[4] The facts concerning the present dispute are accurately described by the Respondent in its Memorandum of Fact and Law as follows:
In December 2000, the Respondent started a Selection Process to create a pool of qualified candidates to fill positions as a Collections Officer (PM-02) in its Revenue Collections division. The Applicant submitted his application.
Jim Barr, the Assistant Director, Revenue Collections, in the Vancouver Island Tax Services Office, appointed a Selection Board to review the applications against the pre-requisites for the position. Those pre-requisites included experience in revenue collections.
The Selection Board found that the Applicant met the pre-requisites and admitted him to the assessment stage of the Selection Process.
The Board assessed the Applicant and all other candidates who met the pre-requisites against the qualifications for the position by requiring him to write a knowledge test, interviewing him and conducting a reference check. One of the purposes of the reference check was to provide the Board with the information respecting each candidate's interpersonal skills, initiative and reliability.
The Board determined that the Applicant did not meet the qualifications for the position and, for that reason, did not place him in the pool of qualified candidates. Specifically, the Board found that the Applicant did not meet two specific competencies under Personal Suitability, "Initiative" and "Interpersonal Skills".
In April 2001, the Applicant requested Individual Feedback from the Chair of the Selection Board, Edward Dujela. Mr. Dujela advised the Applicant that it was the opinion of the Selection Board that corrective measures were not required.
The Applicant was not satisfied with that result and on 18 April 2001 he requested Decision Review of the assessment decision.
Jim Barr conducted the Decision Review. After considering the Applicant's lengthy written submissions, he issued his decision on 27 June 2001. Mr. Barr allowed the Applicant's complaint on the basis that, in light of inconsistencies in the information it collected, the Board should have sought further information. As a corrective measure he ordered the Board to further evaluate the Applicant against the competencies of "Initiative", "Interpersonal Skills" and "Reliability".
The Selection Board requested three persons to provide references for the Applicant. One of these was Jobina Macleod, a Team Leader, to whose team the Applicant had recently been assigned at his request. Another was Ann Wellman, a former Team Leader who supervised the Applicant.
The Selection Board again determined that the Applicant was not qualified. Mr. Barr informed the Applicant of this decision by letter dated 30 July 2001.
The Applicant met with Ed Dujela on 1 August 2001 to discuss the decision and receive feedback.
On 3 August 2001, the Applicant filed a written request for Individual Feedback.
Although the Staffing Program does not provide recourse from corrective measures, Mr. Barr reviewed that matter after being informed that the Applicant remained unsatisfied. He concluded that the Selection Board had addressed the corrective measure he had ordered. He issued a Response to Request for Decision Review on 21 August 2001.
On 2 December 2002, sixteen months later, the Applicant wrote to Barbara Fulton, the Assistant Commissioner of the Respondent, requesting the CCRA to provide him with Individual Feedback concerning the Selection Board's further assessment. He referred to his written request of 3 August 2001.
More than two years after Mr. Barr reviewed the matter, the Applicant sent an e-mail to the Commissioner of the CCRA, Alan Nymark, complaining that he had not received Individual Feedback following the implementation of the corrective measures. He asserted that the Staffing Program gave him that recourse.
[By letter dated November 5, 2003] The Assistant Commissioner of the CCRA, D.G.J. Tucker, on behalf of Mr. Nymark, wrote to the Applicant stating his staffing concern had been properly dealt with in accordance with the Staffing Program. He confirmed that the program does not provide recourse following corrective measures.
(Memorandum of Fact and Law of the Respondent, pp. 26-31, paras. 12-27)
[5] The relevant contents of Mr. Tucker's letter, which Mr. Hughes characterizes as a decision which is subject to judicial review, are as follows:
I am writing in response to your email of September 17, 2003, addressed to Mr. Alan Nymark, Commissioner of the Canada Customs and Revenue Agency (CCRA), in which you raised concerns regarding the selection process 2000-CCRA-PAC-1228-6027, PM-02, Collections Officer position.
A review of our files indicates your staffing concerns were properly dealt with through the staffing recourse mechanism as per the Staffing Program. You have exercised all the available staffing recourse (Individual Feedback and Decision Review). Mr. Jim Barr, Assistant Director, Revenue Collections, Vancouver Island Tax Services Office, rendered his decision and is satisfied with the results of the corrective measures.
I understand that Mrs. Margaret Rashid, A/Director, Human Resources Branch, has provided you with a policy interpretation of the Staffing recourse after corrective action. As a result, there is no provision to intervene and I must consider the case to be closed. (Affidavit of Jim Barr dated February 5, 2004, Exhibit E)
[6] I agree with the Respondent that, at most, Mr. Tucker's letter is a courtesy letter. The case law is clear that a courtesy letter written in response to a request for reconsideration is not a decision or order within the meaning of the Federal Court Act, and, therefore, cannot be challenged by way of judicial review (Batkai v. Canada (M.C.I.), 2002 FCT 514 at para. 13 (F.C.T.D.); Krishnamurthy v. Canada (M.C.I.) [2000] F.C.J. No. 1998 (Q.L.) at para. 14 (F.C.T.D.); Brar v. Canada (M.C.I.) (1997), 140 F.T.R. 163 at paras. 7-9 (F.C.T.D.)).
ORDER
Accordingly, for the reasons provided, the application is dismissed.
I award costs to the Respondent in the sum of $500.
(Sgd.) "Douglas R. Campbell"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2242-03
STYLE OF CAUSE: Chris Hughes
- and -
Canada Customs and Revenue Agency
PLACE OF HEARING: Vancouver
DATE OF HEARING: August 3, 2004
REASONS FOR ORDER : CAMPBELL, J.
APPEARANCES:
Mr. Chris Hughes FOR APPLICANT
(appearing on his own behalf)
Ms. Sarah Pearson FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada