DR. NOËL AYANGMA Appellant v. HER MAJESTY THE QUEEN, 2003 FCA 149

Date: 20030320 Docket: A-467-02 Neutral citation: 2003 FCA 149 CORAM: DESJARDINS J.A. DÉCARY J.A. NOËL J.A. BETWEEN: DR. NOËL AYANGMA Appellant and HER MAJESTY THE QUEEN Respondent Heard at Halifax, Nova Scotia, on January 27, 2003. Judgment delivered at Ottawa, Ontario, on March 20, 2003. REASONS FOR JUDGMENT BY: DESJARDINS J.A. CONCURRED IN BY: DÉCARY J.A. NOËL J.A. Date: 20030320 Docket: A-467-02 Neutral citation: 2003 FCA 149 CORAM: DESJARDINS J.A. DÉCARY J.A. NOËL J.A. BETWEEN: DR.

NOËL AYANGMA Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT DESJARDINS J.A. [ 1 ] The appellant is appealing a judgment by Blanchard J. of the Trial Division which granted the respondent's motion for

summary judgment, following which the appellant's amended statement of claim was dismissed pursuant to rule 216 of the Federal Court Rules, 1998 (the "Rules"). In the same judgment, the motions judge dismissed the appellant's own motion for

summary judgment and for further determination of a question of law pursuant to rule 220 ( Ayangma v. Canada , 2002 FCT 707 , [2002] F.C.J. No. 958 (T.D.)(QL)). The Facts [ 2 ] The appellant commenced an action against Her Majesty the Queen seeking damages in the amount of $2,000,000 for alleged harm and loss of opportunities caused by Health Canada and the Public Service Commission which, he claims, prevented his

appointment to a position within Health Canada for which he applied in response to an advertised public competition. [ 3 ] The competition was initiated on March 24, 2000. In his application, the appellant indicated that he was a member of a visible minority and that his primary language was French. [ 4 ] The selection panel for the competition consisted of three members; the first was from the Public Service Commission, the second was from Health Canada and the third was a consultant. Two of these members were of aboriginal ancestry and only one was capable of conducting the appellant's interview in French.

None of the members were of a visible minority. [ 5 ] The appellant was advised on June 26, 2000, that he was not successful. The successful candidate was Ms. Monique Charron who had been acting in this position since 1997. [ 6 ] The appellant appealed the appointment of Ms. Charron to the Public Service Appeal Board alleging bias in the process, breach of the Public Service Employment Act (the "PSEA") R.S.C. 1985, c-P-33 , breach of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the " Charter "), and non- compliance with a decision of a Canadian Human Rights Tribunal known as the National Capital Alliance on Race Relations v. Canada (Health and Welfare) , [1997] C.H.R.D. No. 3 (QL) (the "NCARR decision"). The NCARR decision had been rendered on March 19, 1997. The Canadian Human Rights Tribunal had issued an order (the "NCARR order") requiring Health Canada to address a number of problems within its staffing process. It had prescribed corrective measures and monitoring procedures to be taken.

These measures and procedures were designed to enable members of visible minorities to have promotional opportunities within Health Canada in a manner consistent with

section 10 of the Canadian Human Rights Act , R.S.C. 1985, c. H-6 . [ 7 ] The Public Service Appeal Board (the "Appeal Board"), through a decision by Mr. Pierre Baillie dated October 31, 2000, allowed the appellant's appeal. It found that the selection board members did not have sufficient knowledge of French to communicate with the appellant during his interview, contrary to subsection 16(2) of the PSEA. It also found that the department had not demonstrated that Ms. Monique Charron was the most qualified candidate.

It further held that the elimination of the appellant from the competition was fair and equitable considering the appellant had not demonstrated that he had the experience required for the position. On this very point, the Appeal Board indicated that, contrary to the appellant's position that under the NCARR order experience was not to be taken into consideration during the initial assessment based on the curriculum vitae, there was no mention of not assessing experience in the case of persons covered by that order.

The Appeal Board added that, in the present selection, the evidence was that no candidate had been assessed solely on the basis of experience. [ 8 ] Following the Appeal Board's decision, the Public Service Commission proposed corrective measures to which the appellant objected since, in the appellant's view, these measures only called for the reassessment of Ms. Charron and were aimed at further favouring her. [ 9 ] The Public Service Commission finally revised the corrective measures and cancelled the entire process.

It proposed to conduct a new competition with new assessment tools and a new selection board. [ 10 ] An application for judicial review of the Appeal Board's decision, commenced on November 29, 2000, by the appellant, was discontinued on February 1, 2001, allegedly because of certain representations made to the appellant by the respondent. [ 11 ] Despite being offered to be re-interviewed for the position in the official language of his choice, the appellant refused to be re-evaluated and re-interviewed for the position or to apply for other competitions.

He was of the view that the new process was unfair so long as Ms. Charron's appointment was not revoked. His position was that leaving Ms. Charron in the position until the new process was completed gave her an unfair advantage even though her appointment would be revoked should she not be the successful candidate. [ 12 ] The new competition went ahead. Ms. Charron was eventually selected for the position. [ 13 ] In his amended statement of claim to his action in damages, the appellant alleges that the defendant breached the Official Languages Act , R.S.C. 1985, c. 31 (4 th Supp .) (the " OLA "), the PSEA, and

section 15 of the Charter by not hiring him pursuant to a job competition within the Public Service. The appellant further alleges that Her Majesty the Queen, certain named individuals and other unnamed persons are in breach of the NCARR order. [ 14 ] A contempt proceeding was brought before the Trial Division, by the appellant on July 13, 2001, requesting that Her Majesty and certain named and unnamed individuals be required to show cause why they should not be cited for contempt for allegedly breaching the NCARR order.

MacKay J. dismissed the appellant's motion finding that any breach of the NCARR order was remedied by the procedures established pursuant to the PSEA. The appellant's appeal of MacKay J's decision was dismissed by this Court on January 27, 2003 ( Ayangma v. Canada , 2003 FCA 46 , [2003] F.C.J. No. 121 (C.A.)(QL)). The Decision Under Appeal [ 15 ] In his action in damages before the Trial Division, the appellant brought a motion for

summary judgment and/or for the determination of a question of law. The respondent brought in turn a motion for

summary judgment dismissing the appellant's amended statement of claim. [ 16 ] In dealing with the two motions for

summary judgments, Blanchard J. set the issues by asking: (1) whether the respondent had a genuine issue for trial with respect to Her defence, and (2) whether the appellant had a genuine issue for trial with respect to his

claim. [ 17 ] The motions judge dismissed the appellant's request for an order pursuant to rule 220(1) to admit as evidence transcripts from two proceedings. The first transcript related to the hearing before the Appeal Board and the second was related to the hearing before the Canadian Human Rights Tribunal in the NCARR case. The motions judge held that the first of the three requirements developed by the Supreme Court of Canada in R. v.

Hawkins , 1996 CanLII 154 (SCC) , [1996] 3 S.C.R. 1043 at 1079, had not been met since the respondent did not have the opportunity to cross-examine the witnesses at the hearing. [ 18 ] The motions judge adopted the test set by the Supreme Court of Canada in Guarantee Co. of North America v. Gordon Capital Corp. , 1999 CanLII 664 (SCC) , [1999] 3 S.C.R. 423 at paragraph 27 for a motion for

summary judgment. Combined with rule 215, this means that a party responding to a motion for

summary judgment must put its best foot forward at the time the motion is heard by filing an affidavit or by submitting other evidence demonstrating that there is a genuine issue for trial. In turn, a motion for

summary judgment must be supported by specific, credible evidence and must disclose a serious reason to send the matter to trial. [ 19 ] On this basis, the motions judge found that the documents filed by the appellant were insufficient to justify a genuine issue for trial. [ 20 ] The motions judge made an analysis of the allegations contained in the appellant's amended statement of claim, where it is said that the respondent breached the NCARR order, notably (

i) by not having a member of a visible minority on the selection board for the competition and (ii) by permitting illegal acting appointments in contravention of the NCARR order that required the appointment of visible minorities to four months acting positions. He dismissed both for lack of evidence. [ 21 ] The motions judge was of the view that the issue of the appropriate remedy was res judicata considering that the appellant had successfully appealed the job competition under

section 21 of the PSEA and had refused the corrective measures prescribed pursuant to subsection 21(3) of the PSEA by the Public Service Commission following the Appeal Board's decision. [ 22 ] The motions judge was further of the view that the staffing process used in the impugned competition did not breach the language rights of the appellant under

section 21 , 22 , 28 and 39 of the OLA as amended. It was his view that sections 21 , 22 and 28 of the OLA , which are found within

Part IV of the Act relate to the public's access to federal "services" and not to an internal employment competition which was not a "service" as envisioned by the legislation.

Section 39 , on the other hand, was a statement of commitment by the Government of Canada and had been excluded from subsection 77(4) of the OLA , the remedy provision. [ 23 ] The motions judge was finally of the view that no breach of statutory provision had occurred since the appellant had not alleged negligence on the part of the respondent. Nor was there, in his view, any breach of subsection 15(1) of the Charter in the absence of any factual basis to found a claim of discrimination. The Appellant's Submission [ 24 ] The appellant raises the following points in his appeal before us:

(1) Whether the learned Trial Judge erred in his finding regarding the admissibility of the transcripts of evidence given during the NCARR and the hearing before the Appeal Board?

(2) Whether the learned Trial Judge erred in his finding regarding the various remedies sought by the appellant in his amended statement of claim and regarding the application of the doctrine of res judicata ?

(3) Whether the learned Trial Judge erred in his finding regarding the issue of the applicability of

summary judgment to facts and circumstances of the case under appeal and regarding the evidence contained in the appellant's affidavit?

(4) Whether the learned Trial Judge erred in his finding regarding the breach of the NCARR Order , the OLA , the PSEA and the Charter ?

Analysis [ 25 ] I need not address each and every one of the issues raised by the appellant to dispose of this case. [ 26 ] What I need to address is whether the allegations contained in the amended statement of claim lead to the conclusions sought by the appellant. [ 27 ] I conclude that they do not and, for that reason, the action in damages cannot stand since there is no genuine issue for trial. [ 28 ] In his amended statement of claim, the appellant claims damages following "unconstitutional breaches, wilful, reprehensible and unlawful acts" committed by the respondent (paragraph 53 of the amended statement of claim, Appeal Book, volume II, p. 113).

The respondent, the appellant alleges, violated the NCARR order, the OLA , the PSEA and the Charter . Then follows a long list of damages the appellant claims. The following, inter alia , appear: (

a) damages for loss of income and/or of opportunity in the form of the difference in salaries from the date of his appointment and

for the period of the illegal acting appointment and an appointment. (

b) damages in an amount of $200,000 as compensation for injury to his self-esteem, dignity and reputation resulting from the infringement of his right to be free from social discrimination/harassment. (

c) an appropriate indeterminate senior management (EX) at the actual level of Madam Charron (underline in the text). [ 29 ] The appellant successfully appealed the job competition at issue under

section 21 of the PSEA. This procedure is a long established one. It is directed however exclusively to the enforcement of the fundamental principle of the PSEA which is that an appointment is to be made according to the merit principle. ( Caldwell v. Canada (Public Service Commission) , [1978] F.C.J. No. 918 at para. 4 (C.A.)(QL) ; Canada (Attorney General) v. Girouard , [2002] F.C. 538, 2002 FCA 224 at para. 12 ). When the process is found to be flawed, if the appointment has been made, it is revoked. If the appointment has not been made, it is not made (subsection 21(2) of the PSEA).

The candidate who has been successful in his appeal is not entitled to the position for that matter. [ 30 ] The appellant, in the case at bar, cannot base his action in damages on his success before the Appeal Board. [ 31 ] Nor can he claim that the OLA was violated.

Section 21 , 22 and 28 of the OLA are found within

Part IV of the Act entitled "Communications With and Services to the Public". Although the phrase "Services to the Public" is not defined in the OLA , it clearly does not apply to a competition under the PSEA,

an Act which relates to staffing within the Public Service and which has its own code of language provisions. The appellant's submission (appellant's Memorandum of Fact and Law, para. 88) "that having bilingual individuals in the hiring board is not only a service to the appellant as an individual, but it is also rendering a great service to the public as required by

section 10 of the PSEA to help hire the best qualified candidate...", is simply of no avail in this context.

Section 39 of the OLA on the other hand is a statement of commitment by the Government of Canada. Since that provision is found in

Part VI of the Act, it is excluded by virtue of subsection 77(1) of the Act from the application of

Part X which is entitled "Court Remedy". The appellant invokes, to his benefit, subsection 77(4) of the Act. But that subsection only applies in proceedings under subsection 77(1). [ 32 ] The appellant submits that even if the Court should conclude that it has no jurisdiction to deal with a breach of language right such as the one at issue, the Court should nevertheless assume jurisdiction rather than leaving the breach to be committed with impunity (appellant's Memorandum of Fact and Law, para. 84). This, of course, the Court cannot do.

It should be remembered however that the appellant's language complaint under subsection 16(2) of the PSEA was dealt with successfully by the Appeal Board following the appeal process to the competition. [ 33 ] The motions judge did not err when he concluded that the appellant had no provided any factual basis to found a claim of discrimination under

section 15 of the Charter . The long extracts of the decision of the PSE Appeal Board cited by the appellant in his memorandum at paragraphs 93 and 94, relate to the selection process. They do not establish discrimination.

The Appeal Board found as a fact that the appellant did not meet the qualifications for the position. [ 34 ] And although the appellant, in his statement of claim, uses the word "wilful...acts" to characterize the actions of the respondent, he has not alleged specific facts to support an allegation that the respondent has breached the PSEA with the wilful intent of causing harm to the appellant. Consequently, the principles elaborated by the Supreme Court of Canada in Canada v.

Saskatchewan Wheat Pool , 1983 CanLII 21 (SCC) , [1983] 1 S.C.R. 205 at 227 where it is said that the civil consequences of breach of statute is subsumed in the law of negligence have their full effect. [ 35 ] Finally, with regard to the appellant's submissions that the respondent violated the NCARR order, the Appeal Board disagreed with the position taken by the appellant. It found that there was, under the NCARR order, no mention of not assessing the candidates on the basis of experience. It also found that no candidate had been assessed solely on the basis of experience.

The application for judicial review of the Appeal Board's decision was discontinued. The decision of the Appeal Board is therefore final. [ 36 ] The motions judge did not err in his conclusion. [ 37 ] I would dismiss this appeal with costs. "Alice Desjardins" J.A. "I agree R. Décary J.A." "I agree Marc Noël J.A." FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-467-02 STYLE OF CAUSE: Dr. Noël Ayangma and Her Majesty the Queen PLACE OF HEARING: Halifax, Nova Scotia DATE OF HEARING: January 27, 2003 REASONS FOR : Desjardins J.A. CONCURRED IN BY: Décary J.A. Noël J.A. DATED: March 20, 2003 APPEARANCES : Dr. Noël Ayangma FOR THE APPELLANT James Gunvaldsen-Klaassen FOR THE RESPONDENT SOLICITORS OF RECORD : Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada