Forsch v. Canadian Food Inspection Agency, 2004 FC 513

Date: 20040402

Docket: T-405-03

Citation: 2004 FC 513

Ottawa, Ontario, this 2^nd day of April, 2004

Present:           The Honourable Mr. Justice Mosley                                   

BETWEEN:

                                                                NICK FORSCH

                                                                                                                                            Applicant

                                                                           and

CANADIAN FOOD INSPECTION AGENCY, DOLORES NEILSON, BOB JACKSON and BARB LONG

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                The applicant, Mr. Nick Forsch, was an unsuccessful candidate in a staffing competition conducted by the Canadian Food Inspection Agency ("CFIA"). He seeks judicial review of a decision of a tribunal (the "tribunal" or "internal tribunal") established pursuant to the Staffing Complaint Policy of the CFIA, dated January 31, 2003, that upheld the results and refused to compel disclosure of certain information regarding the other candidates. He requests an order setting aside the tribunal's decision and an order that his complaint be remitted to a differently constituted tribunal for reconsideration.

BACKGROUND

[2]                On March 26, 2002, the CFIA advertised an employment competition for Regional Operations Coordinator ("ROC") positions in Calgary and New Westminster. The advertisement stated that the screening criteria for the ROC positions included experience "in the delivery of two or more CFIA programs".

[3]                The selection process included three phases: a screening of applicants' resumes for minimum qualifications, a written examination and an interview. The selection board consisted of two Regional Directors and a Human Resources Manager.

[4]                Mr. Forsch, a veterinarian, applied for the ROC positions. Sixteen candidates, including Mr. Forsch, were invited to write the examination. The exam consisted of a hypothetical case scenario related to the duties of a ROC and candidates were asked to answer two questions, designed to test knowledge of CFIA procedures, key stakeholders, communication protocol and communication competency.

[5]                Of the sixteen applicants who wrote the examination, seven were recommended by the selection board for an interview. Mr. Forsch was not one of the seven candidates who proceeded to the interview stage. All of the participants in the competition were advised of the results on August 2, 2002. Three candidates were selected for the ROC positions: Dolores Neilson, Bob Jackson and Barb Long. These individuals are named as respondents, along with the CFIA, in this judicial review application.

[6]                The applicant raised concerns about the staffing competition process and the experience of the successful candidates in an email dated August 20, 2002, to Regional Director, Scott Acker, a member of the selection board for the competition. Mr. Forsch subsequently requested copies of the three successful candidates' applications, resumes and examinations.

[7]                On September 4, 2002, Mr. Acker met with the applicant to discuss his complaint.

Mr. Acker has filed an affidavit in this proceeding. In this affidavit he attests that he told the applicant that the successful candidate, Dolores Neilson, clearly met the minimum "experience" requirements for the position by virtue of having worked as an Area Operations Coordinator where she gained experience in a number of CFIA programs. Mr. Acker also advised the applicant that Ms. Neilson had "program 15" experience, that is experience in supportive functions of running a CFIA program (financial, human resources, communication and administrative management).

[8]                By letter dated September 10, 2002, Mr. Acker informed the applicant that he was satisfied that CIFA staffing policies had been followed, in accordance with CIFA values and principles, in the selection of the successful candidates for the ROC positions. In particular,

Mr. Acker concluded that the "criteria specified for 'Experience' was clearly applied fairly and consistently for all candidates".

[9]                Mr. Acker refused to disclose to the applicant the records that had been requested, stating that they contained personal data in regards to the successful candidates' education and employment history and to release it would be a breach of the Privacy Act, R.S.C. 1985, c. P-21 ("Privacy Act"). One of the three candidates, Mr. Bob Jackson, consented to the disclosure of his information and Mr. Forsch received copies of the documents for that candidate.

[10]            In addition to the affidavit of Mr. Acker, the respondent has filed an affidavit from Sylvie Tanguay, Senior Corporate Advisor, Corporate Staffing with the CFIA. Ms. Tanguay explains in her affidavit that the staffing complaint process is governed by the Staffing Complaint Policy, approved by the CFIA on June 21, 1999 (the "Policy") and comprises four stages: presentation of a complaint to the delegated manager, meeting between the complainant and the manager, presentation of a written response from the manager to the complainant and then if not resolved to the complainant's satisfaction, referral of the complaint to an internal tribunal. The internal tribunal is the final level of recourse available within the CFIA and may, inter alia, dismiss the complaint or direct that the delegated manager take certain corrective measures. The internal tribunal may not substitute the employer's (CFIA's) opinion of an employee's qualifications with its own or direct that the CFIA appoint another person.

The Tribunal Hearing and Decision

[11]            The tribunal hearing was held on December 13 and 29, 2002. The tribunal was comprised of three members: representatives of the employer and the collective bargaining unit and a third person chosen by the other two. Prior to the hearing, and again at the first sitting, the applicant's representative requested that the tribunal order the CFIA to disclose the applications of the two successful candidates in the competition who had not consented to disclosure, as well as their examination answers and the selection board's assessment of those answers, in order to determine whether the successful candidates had the experience required for the ROC position.

[12]            The tribunal declined to order such disclosure, concluding that it did not have the legal authority to challenge the selection board's (i.e. Mr. Acker's) interpretation of the Privacy Act and further that it did not have the power and authority to compel the production of evidence. The tribunal also concluded at page 11 of its decision that since it did not exercise a "quasi-judicial administrative function, the notion of fairness, as that term is applied in the law of judicial review, simply has no place in our deliberations".

[13]            The tribunal found that the successful candidates met the experience criteria as set out in the advertisement for the ROC positions. The tribunal noted that it had viewed the successful candidates' applications and was satisfied that the successful candidates met the required qualifications for the positions, and further was satisfied that the selection board had applied a definition of the required experience consistently to all applicants, in a manner of assessment that was both fair and reasonable.

[14]            The tribunal decided that the competition should stand as conducted. However, it also recommended that the CFIA review its position with respect to the Privacy Act. In light of the goal of the staffing complaint process, it stated that the Privacy Act should be given a broad and liberal interpretation by the CFIA and requested information should be disclosed at the early stages of the complaint procedure. The tribunal also recommended that the CFIA could advise candidates in competitions that personal information, such as education and experience, may be disclosed during a staffing complaint process.

[15]            The applicant's representative at the hearing, Mr. David Riffel, attests in an affidavit filed in this proceeding that the disclosure of the successful candidates' examination answers would have allowed him to assess whether the successful candidates's examinations were marked consistently in comparison to that of the applicant and in a fair, non-discriminatory manner, according to merit. Mr. Riffel attests that he told the tribunal at the hearing that this was one reason for the applicant's request for the examinations of the successful candidates.

ISSUES

[16]            1.          What is the appropriate standard of review to apply to the question of whether the tribunal erred in concluding that it had no jurisdiction to order the CFIA to disclose documents to the applicant? Was this decision correct?

2.        What is the appropriate standard of review in assessing whether the tribunal erred in determining that it had no jurisdiction to offer an interpretation of the Privacy Act? Was such decision correct?

3.          Do the principles of procedural fairness apply to the tribunal? If so, did the tribunal breach the duty of fairness in refusing to order the production of the information evaluated by the selection board and reviewed by the tribunal in relation to the successful candidates?

PARTIES' POSITIONS AND ANALYSIS

[17]            The enabling statute of the CFIA is the Canadian Food Inspection Agency Act, S.C., 1997, c. 6 ("CFIA Act"). The authority of CFIA to hire employees and set the terms of their employment is found in section 13 of the CFIA Act:

[18]            Section 12 of the CFIA Act states that the CFIA is a separate employer under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ("PSSRA") and due to the CFIA's legislated power to appoint its employees, granted by subsection 13(1) of the CFIA Act, the provisions of the Public Service Employment Act, R.S.C. 1985, c. P-33 ("PSEA") dealing with the appointment of persons to the federal public service do not apply to the CFIA: subsection 8(1) of the PSEA. The CFIA created the Staffing Complaint Policy whereby it established a complaints process for individuals dissatisfied with CFIA staffing decisions. Such Policy is made pursuant to the broad legislative authority to appoint employees, found in subsection13(1) of the CFIA Act.

1.          Error in the tribunal's interpretation of its jurisdiction

[19]            I find that the standard of review in relation to the issue of whether the internal tribunal properly interpreted its jurisdiction related to its authority to compel disclosure to be that of correctness. The pragmatic and functional approach directs that four factors must be considered by the Court in determining the appropriate standard of review for a particular administrative decision: (1) the existence of any privative clause or statutory right of appeal, (2) the expertise of the tribunal relative to that of the reviewing court in regards to the question at issue, (3) the purpose(s) of the legislation as a whole and the provisions at issue in particular, (4) the nature of the question- being law, fact or mixed fact and law. See: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.

[20]            The applicant submits that this question is encompassed by the principles of procedural fairness which require a decision-maker to ensure that each party has a full and fair chance to present their case and to review information relied upon by the decision-maker. According to the applicant, disclosure in this case is required for such meaningful participation to occur in line with the principles of procedural fairness in this particular administrative context.

[21]            The respondent submits that the tribunal does not have an enabling statute, being rather the creature of the Policy and there exists neither a privative clause nor a statutory right of appeal. This Policy does indicate, however, that the decision of the tribunal is to be the final one in the staffing complaint process. I consider this factor to be one indicating less deference.

[22]            Second, the internal tribunal is composed of three members, chosen in a particular manner pursuant to the Policy for the different views that they bring to the complaint process. The Policy states that the tribunal will consist of a "Level 3 Manager"of the CFIA, that is, the delegated manager who conducted the staffing process under complaint, a representative from the bargaining agent^[1] and a person selected by the other two. The respondent submits that such a tribunal has a "significant degree" of expertise in the area of staffing recourse, relative to the courts. The respondent also argues that the internal tribunal's purpose is polycentric, with the mandate to make recommendations only.

[23]            The tribunal's purpose, as stated in the Policy itself and also in the Question and Answer Guide, Edition 1: CFIA's Staffing Complaint Policy (the "Q & A Guide"), developed to "complement and support" the Policy and provide "procedural detail and interpretation" of the Policy, is to provide for a timely resolution of a staffing complaint through "joint problem-solving rather than through a court-like review and decision process." However, in relation to the first question at issue, interpretation of the tribunal's powers, the tribunal cannot be seen as having a greater deal of expertise than the court, therefore this signals that little deference should be afforded.

[24]            Third, this case presents a unique situation, as the tribunal whose decision the court is asked to review has no governing rules enacted pursuant to legislation, but rather exists as a written, public policy, created and administered by the will of the employer, the CFIA, as part of its authority to appoint employees through subsection 13(1) of the CFIA Act. I disagree with the respondent's contention that the tribunal exists without an enabling statute, as it is generally the creature of subsections 13(1) and(2) of the CFIA Act.

[25]            As stated by the Supreme Court of Canada in Pushpanathan, supra, at paragraph 26, the central inquiry in the standard of review analysis is determining the legislative intent of the statute which created the tribunal whose decision is being reviewed. In my opinion, the legislative intent of subsection 13(1) of the CFIA Act is to grant to the employer, the CFIA, control and autonomy in the manner in which it appoints its employees and deals with complaints in relation to such appointments. This subsection ousts the application of the appointment provisions of the PSEA to the CFIA. The recourse mechanism for staffing complaints, provided by the Policy, is one way in which the CFIA has decided, on its own accord, to exercise this control and therefore should be accorded some deference.

[26]            However, while the CFIA was not required by legislation to establish this tribunal, or even the Policy for that matter, it nonetheless has done so and it should be expected to abide by its own, established guidelines. As stated in the Q & A Guide at A.4-24, "By establishing the 'Staffing Complaint Policy', the Agency is choosing to abide by tribunal decisions."

[27]            Finally, the nature of the question, in regards to the first issue in this review is jurisdictional; does this tribunal, formed by way of a Policy rather than pursuant to express statutory authority, have the jurisdiction to compel disclosure? It is therefore a question of mixed fact and law, as it involves interpretation of the Policy, which is not law, and an interpretation of the tribunal's role in the scheme of the CFIA, as it is constituted pursuant to the CFIA Act. This factor points to less deference.

[28]            I am of the view, having carefully thought the matter through, that the tribunal's decision with respect to its jurisdiction to compel disclosure of information is incorrect. While the tribunal does not have any explicit, legislated grant of power to order disclosure, such as an appeal board appointed under the PSEA, which has the authority to summon witnesses or compel the production of documents, such power exists, in a general sense, as part of the basic principles of procedural fairness. As I will set out below, I am satisfied that the principles of procedural fairness apply to the tribunal, and that the tribunal erred in determining that such principles play "no part" in its deliberations.

[29]            In coming to this conclusion, I am aware that this tribunal is not vested with certain powers by its enabling statute, as there is no reference in either the CFIA Act or the Policy to the internal tribunal having the powers listed in Part II of the Inquiries Act, R.S.C. 1985, c. I-11, as there is, most notably, for appeal boards appointed pursuant to the PSEA (see sections 7.2 - 7.4 and 21 of the PSEA). However, the power to ensure that an individual, who is part of a hearing process created by virtue of a general statutory mandate (section 13 of the CFIA Act) has a meaningful ability to know of evidence relevant to his complaint, upon which both the employer and the tribunal rely, exists as part of the common law of procedural fairness. There is express recognition in the Policy that the tribunal is to act in accordance with procedural fairness:

The internal tribunal will operate in accordance with the rules of procedural fairness. The tribunal has the duty to act fairly and the obligation to make decisions without bias. The parties have the right to be heard and to hear the case presented by the other party(ies). The internal tribunal shall conduct a review and may gather such evidence (including oral evidence should the internal tribunal deem it to be necessary) as is required in order to come to a decision. The internal tribunal shall seek information, as required, from a human resources advisor on such matters as staffing policies, procedures, and practices. The internal tribunal shall base its decision on adherence of the process to the Agency's human resource policies and values, particularly its employment values.

[30]            Moreover, the Q & A Guide at A. 4-23 contemplates the situation where "new evidence" may be presented which was not brought forward at an earlier point in the complaint process. The Guide states that the tribunal must decide if the information is relevant to the resolution of the complaint, and if the tribunal determines it is relevant, admit it. Then, the tribunal "must give the other party to the complaint the time and opportunity to review and respond to the evidence". In my opinion, this supports the finding that this tribunal has the authority to order disclosure of evidence in proceedings before it.

2.          Tribunal's interpretation of its jurisdiction related to the Privacy Act

[31]            The nature of the question in relation to whether the tribunal erred in finding that it did not have the authority to undertake a "legally binding interpretation" of the selection board's application of the Privacy Act is one of mixed fact and law. The Policy itself, which is neither law, nor fact, occupying a hybrid position between the two, must be interpreted and the Privacy Act itself must be analysed. Further, the Court may be viewed as having more expertise in relation to this question, than the tribunal.

[32]            I analyse the other factors of the pragmatic and functional approach in the same manner as I did for the first issue. Therefore, I come to the conclusion that the internal tribunal's decision on this issue is also subject to the correctness standard.

[33]            The applicant argues that the tribunal erred in concluding that it did not have jurisdiction to overrule, or offer any "binding" legal interpretation concerning the selection board's conclusion that the Privacy Act precluded disclosure of the requested information. The applicant refers to portions of the Q & A Guide dealing with CFIA procedure for responding to disclosure requests and argues that this indicates that the Privacy Act does not preclude the tribunal or the CFIA from ordering disclosure in this case.

[34]            At the hearing of this issue, the applicant argued that section 7 of the CFIA Act allowed the President of the CFIA to delegate his/her power to determine Privacy Act requests for disclosure to CFIA managers, and in turn, within the staffing complaint process, to the tribunal established to review such complaints. The respondent contended that the President does not have the authority to disclose information under the Privacy Act and to delegate this function to the tribunal. In my view the respondent's position ignores that the President, under the Privacy Act is considered the "head of the government institution", by virtue of the definitions of "government institution" and "head" in that Act. Also, the President of the CFIA is listed in Schedule I of the Privacy Act Heads of Government Institutions Designation Order, SI/83-114, as amended.

[35]            I accept the proposition that the President has the authority, under section 7 of the CFIA Act, to delegate to "any person any power, duty or function conferred on the President under this Act or any other enactment", which includes the authority to make decisions related to disclosure requests on Privacy Act grounds. The tribunal, created by the Policy of the CFIA, has the authority pursuant to that Policy to review the actions of CFIA managers in a competition and generally, as well, the application of the delegated authority to make Privacy Act determinations related to disclosure requests.

[36]            The relief that may granted by the tribunal is set out in the Policy as follows:

The internal tribunal shall reply to the complainant in writing within thirty (30) days of receipt of the complaint. The internal tribunal may direct the delegated manager to take such corrective action as it deems appropriate and is within the Agency's authority. The tribunal may not substitute its opinion of employees' qualifications or direct the appointment of another person; it may, however, recommend the cancellation of the appointment which gave rise to the complaint. Should any issue arise out of the implementation of the tribunal's decision, the tribunal will make appropriate recommendations to the President.

[Emphasis added]

[37]            The Q & A Guide clarifies these powers of the tribunal, in stating:

Q. 4-24 What are the powers, or limits of the tribunal in responding to a complaint?

A. 4-24 The mandate of the tribunal is specified in the policy. It can examine the staffing process and resulting decision for adherence to the Agency's values and policies. It may direct the delegated manager to take such corrective action as it deems appropriate and is within the Agency's authority. The tribunal may not substitute its opinions of employees' qualifications or direct the appointment of another person; it may however, recommend the cancellation of the appointment which gave rise to the complaint. By establishing the "Staffing Complaint Policy," the Agency is choosing to abide by tribunal decisions.

[Emphasis added]

[38]            The tribunal concluded that it did not have the authority to alter the CFIA's decision not to disclose the information related to the successful candidates, determined by that Agency to be "personal information" under the Privacy Act. The tribunal stated its conclusions on this issue as follows:

...there is no statutory or regulatory basis allowing this tribunal to relieve the Agency of its obligations, as a government institution, to comply with the Privacy Act. The staffing complaint process created by the Agency policy cannot be compared, for example, with the appeal process established under the statutory authority of the Public Service Employment Regulations, which grants specific relief from the requirements of the Privacy Act. Section 26.(1) of those Regulations reads:

An appellant shall be provided access, on request, to any information, or any document, that contains information, that pertains tot he appellant or to the successful candidate and that may be presented before the appeal board.

Working in concert with the Regulations, the Privacy Act provides positive authority for the disclosure of any and all personal information related to an appointment under the Public Service Employment Act. This tribunal has no such statutory equivalent.

It is the tribunal's understanding that it has no power or authority to offer a legally binding interpretation of the Privacy Act, to over-ride it, or to grant the Agency any form of relief from its obligations under that Act. Nor does it have the power to compel the disclosure of information.

[39]            In my view, the tribunal's finding that the Policy did not permit it to interpret the Privacy Act was incorrect, given that it could have, and should have, as a specialized board established to provide directions with respect to any corrective action that the CFIA should undertake in the implementation of its staffing policies, provided its own analysis of whether the selection board properly refused the applicant's request for disclosure pursuant to the Privacy Act.

[40]            In contrast to its earlier finding that it had no authority to interpret the selection board's decision in regards to the Privacy Act, the tribunal in fact proceeded to offer certain recommendations in relation to the application of the Privacy Act to the applicant's request for disclosure. At page 10 of its reasons it states:

It seems to this tribunal that, in refusing to divulge this information, the Agency was exercising an overabundance of caution. We recognize that, in the absence of some clear legal direction, the decision of whether or not to disclose personal information relevant to the complaint is a judgment call. However, when a staffing complaint raises questions or concerns based on applicant information, it seems reasonable to this tribunal that a liberal interpretation of the Privacy Act be applied.

[41]            And then as one of three final recommendations, the tribunal concluded as follows at page 12 of its reasons:

3. CFIA review its position with respect to the Privacy Act. This tribunal believes that, given the goals of the staffing complaint process, the Privacy Act should be given a broad and liberal interpretation and that requested information be disclosed during the early stages of the complaint procedure. Applicants could be advised that personal information, including education and experience, may be disclosed during a staffing complaint process.

[42]            The tribunal erred in determining that it did not have jurisdiction to analyse and provide direction to the CFIA with regards to the interpretation and application of the Privacy Act, in relation to the applicant's particular situation. As stated in the Policy, the tribunal "may direct" that the CFIA take corrective action. The Policy contains no limit as to the areas of the staffing process that the tribunal may consider.

[43]            The respondent contended at the hearing that the tribunal's power to "direct corrective action" should be interpreted as the tribunal only having the power to issue forward-looking directions and the tribunal could not have offered any interpretation of the Privacy Act or ordered disclosure so as to correct an error that had occurred in this specific complaint process.

[44]            In my view, the term "corrective action" is not so limited by the wording of the Policy, and given that the tribunal exists to not only provide general policy directions for the future, but also provide directions in relation to particular grievors, interpreting the tribunal's authority in the manner suggested by the respondent would leave the tribunal with virtually no power to "direct" that any action be taken in regards to a particular staffing complaint. This is contrasted with the wording used in the Policy that the tribunal may only "recommend" the cancellation of an appointment that gave rise to the complaint. If the CFIA had intended the tribunal to have the power to make only institutional recommendations, it would have used explicit wording to indicate that the tribunal could only make recommendations for corrective action to be taken in the future.

[45]            Moreover, the Q & A Guide states that by establishing the Policy, the CFIA has chosen to abide by tribunal decisions. This indicates, in my opinion, that the tribunal's recommendations and directions are regarded by the CFIA as integral and important to implementing its staffing policies and in dealing with individual grievances.

3.          Principles of Procedural Fairness Engaged in this Context

[46]            It is trite law that the standard of review is not engaged when evaluating whether or not the process followed by a tribunal adhered to the safeguards and procedures required in a particular administrative context: Moreau-Berube v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249 at para. 74 and generally Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653. It is also well-established that the duty of fairness extends to all administrative decision-makers who make decisions which affect the rights, privileges or interests of an individual where such decision is not legislative in nature. See [1979] 1 S.C.R. 311">Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

[47]            The Policy is the mechanism adopted by the employer to ensure that employees are appointed to the CFIA in a fair and open way (see the Policy's statement of purpose below).

The Policy states that the internal tribunal "will operate in accordance with the rules of procedural fairness" and sets out the basic principles of such duty. This is the manner in which the CFIA has determined that it will act in discharging its authority pursuant to section 13 of the CFIA Act. In my view, in light of this, and the fact that the applicant's interests are affected by the tribunal's decision, the duty of procedural fairness is indeed engaged in this administrative context and the tribunal erred in finding that procedural fairness had "no place" in its deliberations.

Procedural fairness breached

[48]            A finding that the principles of procedural fairness are engaged in an administrative context does not end the matter, as the content or scope of these principles must be determined, relative to the particular administrative setting.    I note first the words of Justice L'Heureux-Dubé in Baker, supra, at paragraphs 21-22 and 28:

The existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances. As I wrote in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682, "the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case". All of the circumstances must be considered in order to determine the content of the duty of procedural fairness: Knight, at pp. 682-83; Cardinal, supra, at p. 654; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, per Sopinka J.

Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. ...

...The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.

[49]            The Court in Baker, supra, proceeded to set out a non-exhaustive list of five factors to consider, in determining the content of the duty of fairness in a particular administrative setting:

(1) the nature of the decision being made and the process followed in making it, how closely it resembles the judicial process should indicate how much of those governing principles should be imported into the administrative process;

(2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

(3) the importance of the decision to the individual or individuals affected;

(4) the legitimate expectations of the person challenging the decision; and          

(5) the choices of procedure made by the agency itself.

[50]            The applicant maintains that the Privacy Act cannot override the obligation of the tribunal to follow the rules of procedural fairness. In support, the applicant relies on H. v. R., [1986] 2 F.C. 71 (T.D.).

[51]            The applicant further submits that fairness required disclosure in this situation, the Privacy Act was misinterpreted by the selection board and such error should have been corrected by the internal tribunal. According to the applicant, subsection 3 (j) of the Privacy Act permits the disclosure of an individual's personal information to a third party when such information relates to the employment position or employment function of the individual. Since the applicant was requesting disclosure of the applications of the successful candidates in order to assess if they had the required experience for the ROC positions, such information fell outside the scope of "personal information", by virtue of subsection 3 (j). The applicant relies on Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66.

[52]            The applicant refers to the Baker factors and in particular the fact that the Policy expressly states that the tribunal will follow the rules of procedural fairness, including the right to hear the case presented by the other party. For ease of reference, I set out again the portion of the Policy which addresses procedural fairness:

The internal tribunal will operate in accordance with the rules of procedural fairness. The tribunal has the duty to act fairly and the obligation to make decisions without bias. The parties have the right to be heard and to hear the case presented by the other party(ies). The internal tribunal shall conduct a review and may gather such evidence (including oral evidence should the internal tribunal deem it to be necessary) as is required in order to come to a decision. The internal tribunal shall seek information, as required, from a human resources advisor on such matters as staffing policies, procedures, and practices. The internal tribunal shall base its decision on adherence of the process to the Agency's human resource policies and values, particularly its employment values.

[53]            This reference to "employment values" is also found in the Policy's introductory statement of purpose:

Policy Statement

It is the policy of the Agency that:

- its staffing program will respect the Agency's employment values;

- appointments will be based on the Agency's human resource values, particularly its employment values, and appointment processes will be fair and transparent;

...

[54]            In relation to the requested information in this particular case, I find that the selection board and then the tribunal incorrectly determined that the successful candidates' applications were protected from disclosure by the Privacy Act. Further, the tribunal, and also the CFIA in its submissions in this proceeding, err in assuming that simply because an applicant is told that a successful candidate meets the required experience, that this negates any obligation to allow the complainant to review the information that supports this assertion and is relevant to the applicant's complaint. However, in relation to the successful candidates' examinations, I find that the tribunal was correct to conclude that disclosure of the successful candidates' examination answers was not relevant to the applicant's complaint, and therefore disclosure was not required.

[55]            The respondent stresses that during the recourse procedure, the applicant was informed that the successful candidate, Dolores Neilson, possessed the required experience and that this demonstrates that the applicant's complaint in this regard has been fairly answered. Mr. Acker attests to having told the applicant about the experience possessed by Ms. Neilson during their meeting, a mandated part of the complaint process as set out in the Policy. Mr. Acker's affidavit also sets out that he stated before the tribunal that Ms. Neilson met the minimum experience requirements for the ROC position by virtue of having worked as an Area Operations Coordinator and that she also had "program 15" experience. Mr. Acker attests that the applicant did not contest these representations, either at the recourse stage, or at the tribunal hearing. The tribunal recognized this fact as well, at page 10 of its reasons.

[56]            The respondent's submission on this point does not persuade me that the successful candidates' applications for the ROC positions, either a) consist of personal information that could not be disclosed because to do so would not be consistent with the purpose for which it was obtained, b) is information which could not have been disclosed in part, severing parts of the documents which contain personal information not related to the employment functions or history of an applicant or c) that such information becomes irrelevant simply by the employer reassuring the applicant that other candidates possess the required experience. The applicant did not contest the fact that the successful candidates had the required experience because he was precluded from knowing the nature of such information due to the CFIA's refusal to disclose.

[57]            The Q & A Guide outlines the benefits of providing disclosure of information to a complainant that is relevant to his or her complaint. This Guide states the following in regards to the process for determining what information may be provided to the complainant:

Q. 4-8 What is the difference between information disclosed at a "post-board" interview and through the staffing complaint process?

...

When a complaint has been presented or discussions have been initiated with respect to concerns related to a staffing process, and the complainant has articulated his/her concerns, information from the staffing process that is relevant to those concerns is to be provided for the sole purpose of resolving the staffing complaint. Privacy Act and Access to Information requirements must first be met prior to releasing any information. Disclosure of information ensures that the parties to the complaint have access to relevant information and documents to facilitate discussions and resolution at an earlier stage than the tribunal hearing. With this information, arguments presented at the hearing will reflect knowledge of the facts and issues in dispute.

Q. 4-9 What type of information may be provided to a complainant?

A. 4-9 All relevant information that is not subject to the Privacy Act or would compromise future staffing processes if released may be provided to the complainant (actual documents).

Firstly, a determination must be made whether the requested information can be provided subject to the Privacy Act (i.e. information personal to other individuals) on the basis that the use of the information is consistent with the purpose for which it was obtained or compiled. For example, an applicant's written exam is used to assess their qualifications consequently, such a document could be released to review the applicant's qualifications that were assessed by the written exam. Secondly, when one has determined that the requested information meets the Privacy Act and Access to Information requirements for release, the final test before releasing the information is to ensure that it is relevant to the complaint at hand, i.e. releasing another applicant's written exam might not be appropriate if the complainant's concerns are related to he/she being eliminated from the selection process on the basis of screening. Information may be provided to the complainant in a manner deemed appropriate by the CFIA.... The manner in which this information is provided must reasonably protect the personal information of others, while not unreasonably restricting access by complainants.

...

[Emphasis added]

[58]            As is clear from the CFIA's own explanation of its Policy, the procedure to be followed in disclosing information to a complainant is a two-step process. First, the requested documentation is to be examined by the CFIA to determine if it contains "personal information" as defined in the Privacy Act. If so, the CFIA is directed to determine if the disclosure of such information would be consistent with the purpose for which it was obtained. Such direction is in line with subsection 8(2)(a) of the Privacy Act. Second, the information must be assessed for relevancy to the complaint.

[59]            The CFIA has established this procedure for determining whether documents should be disclosed in the complaint process and stipulated that the rules of procedural fairness are to apply to the tribunal. As I have determined, that procedure was not correctly reviewed by the tribunal. While the respondent noted at the hearing that the impact of the decision on Mr. Forsch in not akin to the impact of the decision on the applicant in Baker, supra, in my view, the complaint has a medium impact on the applicant, who believes that he may have unfairly lost the opportunity for advancement within the CFIA through the ROC competition.

[60]            Balanced with the fact that the nature of the decision being made is not designed to be adversarial, and that the process is not intended to resemble the judicial process, these factors lead me to determine that the tribunal's decision not to disclose the successful candidates' applications violated the principles of procedural fairness. The applicant could not fully and fairly present his complaint without this information, and the privacy rights of the successful candidates protected by the Privacy Act would not have been infringed by the disclosure, as the CFIA could have provided the information in a manner that did not violate the Privacy Act. The fact that the employer and the tribunal reviewed the information does not alleviate this breach, as the applicant's participation in the process was impugned by not being able to review, for himself, the exact nature of the experience claimed by the successful candidates. This information was also relevant to his staffing complaint.          

[61]            In my opinion, the disclosure of the successful candidates' applications within the staffing complaint process is a purpose consistent with the purpose for which the information was obtained, that is, in seeking an appointment within the CFIA through a staffing competition. The selection board should have recognized this fact and disclosed this information. Personal information found in the successful candidates' applications that did not relate to their past employment positions and duties related thereto while employed at a "government institution", as that term is defined in the Privacy Act, is beyond the scope of permissible disclosure set out in section 3 (j) of the Privacy Act: Canada v. RCMP, supra, at paras. 37-38. Furthermore, such information would not be relevant to the applicant's complaint. Therefore, this information would have to be severed from the requested records.    

[62]            The tribunal recognized that the applicant's complaint seemed to evolve into one that was no longer challenging whether the successful candidates possessed the required level of experience, but rather one that was challenging the reasonableness of the selection board's decision to accept "program 15" experience. In my opinion, this finding does not change the fact that the applicant should have had an opportunity to see the successful candidates' applications for the ROC positions, given that he had originally challenged whether they possessed the required experience in two CFIA programs.

[63]            Moving to the issue of disclosure of the successful candidates' examination answers and the selection board's related notes of assessment, I find from the evidence on the record that the applicant only claimed for the first time at the hearing that the examinations had been unfairly or inconsistently assessed and this ground had not formed part of either his original complaint or his follow-up correspondence with the delegated manager. The tribunal recognized this fact and stated that his complaint in regards to the examination was based only on two issues, the circumstances surrounding the scheduling of the time to write his examination and the allegation that the examination questions themselves did not adequately test the candidates' knowledge relative to the duties of the ROC positions. I find that procedural fairness did not require that the CFIA or the tribunal, in accordance with the Policy, provide this portion of the requested disclosure. The examination answers of other candidates were not relevant to the applicant's original complaint that had been sent to the tribunal and therefore the tribunal's decision that the examination answers were not relevant to the complaint did not violate Mr. Forsch's ability to state his case.

[64]            The Q & A Guide states that evidence that is not relevant to the original complaint should not be dealt with by the tribunal. This Guide states as follows:

Q. 4-23 Should a tribunal accept new evidence (from either complainant or the delegated manager) which was not disclosed or discussed at earlier stages of the complaint process?

A. 4-23       ...

A tribunal should be wary of new evidence which is not actually relevant to the original complaint. For example, if the complaint at hand is centred on irregularities in the application of tests in a staffing process, then early stages of the compliant process would have focussed on disclosing and discussing information regarding the testing. At the tribunal, if the complainant wishes to submit evidence of irregularities in the interview scoring then, although the information is relevant to the staffing process under complaint, it is not related to the complaint under discussion. The evidence would then be refused.

[Emphasis added]

[65]            Given this choice of procedure by the CFIA and the broad grant of power through the CFIA Act to appoint employees, information that is not relevant to the complaint need not be disclosed within the tribunal process in order to uphold procedural fairness.

ORDER

THIS COURT ORDERS that this judicial review is allowed. The decision of the tribunal, dated January 31, 2003, is set aside and a differently constituted tribunal is ordered to redetermine the applicant's complaint in accordance with the following direction:

Within one month of this Order, and prior to the redetermination, the Canadian Food Inspection Agency is ordered to disclose to the applicant the successful candidates' applications in Competition 02-CFIA-AB-CGY-C1-91, in a form that severs personal information that is not related to the employment position, duties and responsibilities of each candidate when employed by a government institution, as that term is defined in the Privacy Act, subsection 3 (j). The examination answers of the successful candidates and the selection board's assessment of them shall not be disclosed to the applicant as they are not relevant to the applicant's complaint. Costs to the applicant.

"Richard G. Mosley"

F.C.J.

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                  T-405-03

STYLE OF CAUSE: NICK FORSCH

AND

CANADIAN FOOD INSPECTION AGENCY

ET AL.

PLACE OF HEARING:                                 Ottawa, Ontario

DATE OF HEARING:                                   March 29, 2004

REASONS FOR ORDER

AND ORDER BY : The Honourable Mr. Justice Mosley

DATED:                     April 2, 2004                 

APPEARANCES:

Steven Welchner                                               FOR THE APPLICANT

Richard Casanova                                             FOR RESPONDENT

SOLICITORS OF RECORD:

STEVEN WELCHNER                                                FOR THE APPLICANT

Nelligan O'Brien Payne LLP                                         

Ottawa, Ontario

MORRIS ROSENBERG                                              FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario