Sykes Ettinoffe v Trinidad and Tobago Electricity Commission
| Jurisdiction | Trinidad & Tobago |
| Judge | Madame Justice Margaret Y. Mohammed |
| Judgment Date | 06 April 2023 |
| Neutral Citation | TT 2023 HC 98 |
| Docket Number | No. CV 2022-00385 |
| Court | High Court (Trinidad and Tobago) |
IN THE MATTER OF THE JUDICIAL REVIEW ACT CHAPTER 7:08
and
IN THE MATTER OF AN APPLICATION BY SYKES ETTINOFFE FOR LEAVE TO REVIEW THE DECISION BY THE TRINIDAD AND TOBAGO ELECTRICITY COMMISSION TO REFUSE TO PROVIDE FULL AND PROPER REASONS, EXPLANATION AND/OR JUSTIFICATIONS FOR ITS FAILURE AND/OR REFUSAL TO GRANT SYKES ETTINOFFE TEMPORARY ACTING POSITION OF MANAGER OF COVE POWER STATION TOBAGO AND DUTY HOUSING ALLOWANCES.
The Honourable Madame Justice Margaret Y. Mohammed
No. CV 2022-00385
IN THE HIGH COURT OF JUSTICE
Ms Shermika K Clarke Attorney at Law for the Claimant.
Mr Ravindra Nanga instructed by Ms Savitri Sookraj-Beharry and Ms Karissa Singh Attorneys at Law for the Defendants.
The Claimant is a national of Dominica who has been employed as a Senior Engineer with the Defendant in the Tobago Distribution Area since November 2015. He claims that he has lodged several complaints of unequal and unfair treatment and libel with the Defendant which have not been addressed and/or insufficiently addressed. He has therefore filed judicial review proceedings seeking the following orders:
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a) A declaration that the decision of the Defendant to refuse to provide the Claimant with full proper explanation and/or justification for its failure and/or refusal to appoint the Claimant into temporary acting appointments for the position of Manager Cove Power Stations Tobago, unequal treatment is unfair, unjust and Wednesbury Unreasonable and contravene the principle of natural justice section 20 of the Judicial Review Act 1.
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b) An order of mandamus directing the Defendant to provide the Claimant with full and proper explanation and/or justification for its failure and/or refusal to appoint the Claimant into temporary acting appointments for the position of Manager Cove Power Stations Tobago and being treated unequal treatment with the Defendant.
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c) A declaration that the failure to appoint the Claimant in Acting Appointments for the position of Manager Cove Power Stations Tobago and to pay duty allowances is a deprivation of a legitimate expectation.
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d) Further and/or in the alternative, an order of mandamus directing the Defendant to give the Claimant an appointment of acting for the position of Manager Cove Power Stations Tobago.
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e) Cost; and
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f) Pursuant to section 8 of the Judicial Review Act, such orders, direction or writs as the Court considers just and circumstances warrant.
To support his claim, the Claimant relied on his affidavits filed on 7 February, 2022 (“the Claimant's Principal Affidavit”), a supplemental affidavit filed on 18 February, 2022 (“the Claimant's Supplemental Affidavit”) and an affidavit in response filed on 15 September, 2022.
At the first hearing of the case management conference, Counsel for the Defendant indicated his intention to challenge the granting of leave, but did not wish to delay the hearing of the substantive matter by filing an interlocutory application.
The Defendant has opposed the Claimant's claim on two bases, namely that the leave to file the claim should not have been granted and even if the leave is not set aside, the Claimant has failed to establish that he is entitled to any of the orders sought in his claim.
In support of the aforesaid positions, the Defendant relied on the affidavit of Emile Baptiste filed 15 July 2022 (“the Baptiste affidavit”) which was filed without prejudice to submissions on whether leave should have been granted.
Based on the positions articulated by the parties there are two issues to be determined. The first issue the Court has to decide is whether to set aside the leave granted to file the claim for judicial review. Assuming the leave is not set aside, the second issue is whether the Claimant can obtain the orders sought in his claim.
The Defendant has asserted that the leave granted to file the claim should be set aside on the basis that: (a) the Claimant has not met the threshold as set out in law for the granting of leave; (b) the Claimant delayed in making his application; (c) the Claimant has alternative remedies; and (d) the Claimant did not disclose all relevant material.
The Claimant's position was in the absence of the Defendant making any application to set aside the leave, the Defendant has submitted to the Court's jurisdiction and cannot thereafter challenge it. It was also submitted on behalf of the Claimant that the Defendant has failed to demonstrate that the grant of leave was plainly unjustified. Counsel argued that assuming but not conceding that the Claimant delayed in filing the application for leave the said delay was due to the Defendant's action and demeanour towards the Claimant. On the issue of material non-disclosure, Counsel for the Claimant argued that by the time the Defendant responded to the Claimant's pre-action protocol letter, the Court had already scheduled the virtual hearing of the case management conference. With respect to there being any alternative remedy, Counsel for the Claimant submitted that there is no alternative remedy as the Defendant has breached various sections of the Statutory Authorities Service Commission Regulations. 2
The Privy Council's judgment in Sharma v Brown-Antoine 3 recognized the Court's power to set aside leave at the inter partes hearing. Therefore, the Court has the power to consider this issue at this stage of the proceedings and in particular as Counsel for the Defendant stated at the first case management conference that this was his intention.
Having considered the evidence, it seems to me that there is merit in the Defendant's argument for the Court to set aside the leave granted to file the judicial review claim. In arriving at this position, I considered whether the Claimant had set out sufficient facts to meet the threshold test to be applied in determining whether leave to apply for judicial review ought to be granted as set out in Sharma as:
“(4) The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy; see R v Legal Aid Board, ex parte Hughes (1992) 5 Admin LR 623 at 628, and Fordham, Judicial Review Handbook 4 th ed (2004), p 426. But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application. As the English Court of Appeal recently said with reference to the civil standard of proof in R (on the application of N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468, at para [62], in a passage applicable mutatis mutandis to arguability:
‘… the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.’
It is not enough that a case is potentially arguable: an applicant cannot plead potential arguability to ‘justify the grant of leave to issue proceedings upon a speculative basis which it is hoped the interlocutory processes of the court may strengthen’; Matalulu v Director of Public Prosecutions [2003] 4 LRC 712 at 733. 4”
This test was more recently restated at paragraph 2 of the Privy Council's judgment in Attorney General of Trinidad and Tobago v Ayers-Caesar 5 as:
“The test to be applied is the usual test for the grant of leave for judicial review. The threshold for the grant of leave to apply for judicial review is low. The Board is concerned only to examine whether the respondent has an arguable ground for judicial review which has a realistic prospect of success: see governing principle (4) identified in Sharma v Brown-Antoine [2006] UKPC 57; [2007] 1 WLR 780, para 14. Wider questions of the public interest may have some bearing on whether leave should be granted, but the Board considers that if a court were confident at the leave stage that the legal position was entirely clear and to the effect that the claim could not succeed, it would usually be appropriate for the court to dispose of the matter at that stage.”
The Claimant's evidence is that he has lodged several complaints of unequal treatment, unfair treatment against the Defendant which were not addressed and/or were insufficiently addressed. In particular, the Claimant stated that he was not provided with reasons for not being offered temporary acting appointments and not being paid housing benefits and/or accommodation. However, the Claimant did not provide any evidence that he had requested the reasons from the Defendant. There was no correspondence where the Claimant requested the reasons from the Defendant neither were there details of any specific days he orally requested the reasons from specific persons from the Defendant.
On the other hand, according to the evidence of Mr Baptiste the Claimant was provided the reasons he was not offered temporary acting appointment by letter dated 8 March 2022 (“the March 2022 letter”) addressed to the Claimant's Attorney at law (exhibit “E.B.7” of the Baptiste Affidavit). The March 2022 letter provided detailed reasons addressing the Claimant's complaints with respect to not being offered temporary acting appointments and not...
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