Friday, 23 November 2012

Supreme Court of Canada decision in Kane

Quick and brutal. The webcast of the hearing in Canada (Attorney General) v. Kane, 2012 SCC 64, was barely up on the Supreme Court's website before the appeal was allowed. Only 17 days elapsed between the hearing on November 6 and this morning's per curiam opinion.

Evans J.A. delivered a complex judgment in the Court of Appeal (2011 FCA 19), examining the relationship between errors of fact, abuse of discretion and review for unreasonableness. He explained that an error of fact had led the Public Service Staffing Tribunal to not deal with an argument raised by the applicant, which amounted to an abuse of discretion, which was in turn unreasonable.

In 11 paragraphs, the Supreme Court cut quickly through the nuance. It took the view that even if the Tribunal had made a material error of fact, this was of no consequence, because there was an independent ground for its conclusion:
[6] In our respectful view, the decision of the majority of the Federal Court of Appeal must be set aside for four reasons.  First and most fundamentally, the basis of Mr. Kane’s complaint was abuse of authority “in choosing an advertised internal appointment process” (para. 91).  The Tribunal acknowledged Mr. Kane’s argument that advertising the position constituted abuse of authority because the PM-06 position was not a new position, but rather a reclassification.  However, it held that regardless of whether the position was new or old, Service Canada was entitled to advertise the position, with the result that the alleged newness of the position did not give rise to an obligation to advertise the position.  The gravamen of the complaint — that the choice of an advertised appointment process constituted an abuse of authority — was thus addressed by the Tribunal and resolved by its interpretation and application of the PSEA, its home statute.  The Tribunal stated:
There is nothing in either the PSEA or the [Public Service Employment Regulations, SOR/2005-334] which requires a deputy head to utilize a particular selection process depending on whether the position at issue is either a new or reclassified position.  On the contrary, section 33 of the PSEA clearly provides that the deputy head has the discretion to use an advertised or a non-advertised appointment process.
[7] This proposition, which has not been assailed as unreasonable, was sufficient to dispose of Mr. Kane’s complaint, and made it unnecessary to consider whether the PM-06 position was a new position.  The question of whether the PM-06 position was a new position or a reclassification of an old position was not relevant to the ultimate issue, and had no effect on the reasonableness of the decision of the Tribunal.
So, that's the end of that.

Unfortunately, the Supreme Court gave us no thoughts on Stratas J.A.'s lengthy set of dissenting reasons, in which he questioned the relationship between unreasonableness and the traditional grounds for abuse of discretion. Maybe next time?

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