Digests

Cruickshank v. Canada (Attorney General)

T-805-03

2004 FC 470, Mactavish J.

26/3/04

16 pp.

Six months after deciding job competition held by Industry Canada failed to respect merit principle, Investigator appointed by Public Service Commission changed her mind-- Investigator issued second report concluding merit principle respected--Applicant seeking judicial review of second report--Whether Investigator functus officio after rendering first report, thus without jurisdiction to reconsider report in light of additional information--Doctrine of functus officio providing once adjudicator has done everything necessary to perfect decision, barred from revisiting decision, other than to correct clerical error--Policy rationale underlying doctrine need for finality in proceedings--Doctrine not limited to judicial decisions, can apply to decisions of administrative tribunals--For doctrine to be engaged, necessary decision in issue final--Investigator not performing adjudicative function, but instead was carrying out investigation, making findings of fact, recommendations as to what corrective measures required--Completion of investigation would not result in binding decision--Rather, ultimate authority vests with Public Service Commission-- Commission not obliged to take any specific course of action upon receipt of report from investigator--Doctrine of functus officio has no application to sort of informal fact-finding exercise in issue here-- Investigator entitled to reconsider findings contained in original report had not completed her task, had not rendered final decision--Investigatory process calls for high degree of flexibility in application of doctrine--Prejudice to department in terms of delay, wasted resources if required to implement measures to correct situation that may not call for correction-- Whether Investigator's second report consistent with merit principle --Public Service Employment Act, s. 10(2) providing merit principle may be measured against standard of competence established by Commission, rather than measured against competence of other people--Up to Selection Board to identify appropriate tools for identifying most meritorious candidates--Having initially identified reference checks as tool that would be used to assess ability A5, surely within discretion of Selection Board to reconsider decision, where, as here, it did so before contacting any of candidate's references --Investigator's real concern candidates had not been consistently assessed--Once Investigator realized all of candidates assessed in consistent manner, her initial concerns about selection process allayed--Hence, reasonable for her to conclude, in second report, merit principle respected-- Application dismissed--Public Service Employment Act, R.S.C., 1985, c. P-33, s. 10(2) (as am. by S.C. 1992, c. 54, s. 10).