Elkayam v. Canada (Attorney General)

Elkayam v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2005-03-17 Neutral citation 2005 FCA 102 File numbers A-304-04 Decision Content Date: 20050317 Docket: A-304-04 Citation: 2005 FCA 102 CORAM: DÉCARY J.A. LÉTOURNEAU J.A. NADON J.A. BETWEEN: AMRAM ELKAYAM Appellant and ATTORNEY GENERAL OF CANADA Respondent Hearing held at Montréal, Quebec, on March 16, 2005. Judgment delivered at Montréal, Quebec, on March 17, 2005. REASONS FOR JUDGMENT BY: NADON J.A. CONCURRED IN BY: DÉCARY J.A. LÉTOURNEAU J.A. Date: 20050317 Docket: A-304-04 Citation: 2005 FCA 102 CORAM: DÉCARY J.A. LÉTOURNEAU J.A. NADON J.A. BETWEEN: AMRAM ELKAYAM Appellant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT NADON J.A. [1] On November 23, 1999, the appellant applied to open competition 00-DND-06-MTL-933601 for a term position as an electrician (GL-EIM10) in the Department of National Defence. [2] On May 17, 2000, the appellant was informed that he did not qualify as a candidate because his mark on the written test was below the minimum required by the competition. [3] Further to this notice, the appellant filed a complaint with the Public Service Commission (the PSC) alleging that the selection board responsible for the competition had manipulated the candidate evaluations to ensure that he failed. The purpose of the complaint was to obtain a pass mark on the written test that he had taken on May 8, 2000. [4] As a result of a Federal Court order allowing the appellant's application for judicial review of an initial investigation report, the PSC assigned Mr. Gérald Leblanc, a recourse officer, to investigate the appellant's complaint. [5] On June 13, 2003, Mr. Leblanc concluded, after conducting the investigation and analysing the evidence collected, that the complaint was unfounded. On August 19, 2003, the appellant filed an application for judicial review of Mr. Leblanc's decision. [6] On May 10, 2004, Mr. Justice Lemieux of the Federal Court, relying on the decision of the Supreme Court of Canada in Borowski v. Canada (A.G.), [1989] 1 S.C.R. 342, dismissed the application for judicial review on the ground that it had become moot. [7] In the view of Lemieux J., the application was moot because no appointment had been made from the eligibility list resulting from the open competition to which the appellant had applied and because the eligibility list resulting from the competition had expired on July 7, 2002. [8] Consequently, according to Lemieux J., no effective remedy could result from the application for judicial review. He was also of the opinion that, in an application for judicial review, a plaintiff could not seek an award of damages. Therefore, Lemieux J. declined to hear the case and dismissed the application for judicial review. [9] I have not been persuaded that, in finding as he did, the judge committed an error that would justify our intervention. I would therefore dismiss the appeal with costs. "Marc Nadon" J.A. "I concur Robert Décary J.A." "I concur Gilles Létourneau J.A." Certified true translation Michael Palles FEDERAL COURT OF APPEAL SOLICITORS OF RECORD DOCKET: A-304-04 Appeal from an order rendered on May 10, 2004, by Lemieux J. of the Federal Court in T-1513-03. STYLE OF CAUSE: PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: March 16, 2005 REASONS FOR JUDGMENT BY: NADON J.A. CONCURRED IN BY: DÉCARY J.A. LÉTOURNEAU J.A. DATED: March 17, 2005 APPEARANCES: Amram Elkayam FOR HIMSELF Mariève Sirois-Vaillancourt FOR THE RESPONDENT SOLICITORS OF RECORD: Amram Elkayam FOR HIMSELF John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE RESPONDENT