Date: 20110511
Docket: T-82-10
Citation: 2011 FC 542
Ottawa, Ontario,
May 11, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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NORMAN MURRAY
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The requirement
that a tribunal conduct itself in accordance with the principles of procedural
fairness does not end when the hearing is concluded and it reserves its
decision.
[2]
In
this case, I am satisfied that the applicant, Mr. Murray, did not receive
procedural fairness from the Public Service Staffing Tribunal (PSST) after its hearing
of his complaint was concluded, and for this reason the PSST’s decision must be
set aside.
[3]
Norman
Murray is an African-Canadian man who has been employed with the Immigration
and Refugee Board (IRB) in Toronto since 1989. Since commencing his employment he has worked
as a Case Officer (CO) at the PM-01 level, except for a three-year acting
assignment as a Refugee Protection Officer (RPO) at the PM-04 level from 2002
to 2005.
[4]
In
October 2006, the IRB announced plans to reorganize. Its goal was to avoid
layoffs that could have resulted from the lower caseload of the Refugee
Protection Division of the IRB after September 11, 2001. As part of the
reorganization, current RPO positions at the PM-04 level were to be replaced by
Tribunal Officer (TO) positions at the PM-05 level. RPOs who qualified for the
new TO position were appointed using a non-advertised appointment process.
Those who failed to qualify remained at the PM-04 level as Development Tribunal
Officers, and were provided with training with a view to becoming RPOs at the
PM-05 level. Mr. Murray did not qualify as his acting PM-04 appointment had
ended.
[5]
Mr.
Murray filed a complaint with the PSST alleging that the non-advertised
appointment process used to appoint the TOs discriminated against him on the
basis of race and that the process constituted systemic discrimination and
created a job barrier for the visible minority employees in CO positions who
were clustered at the PM-01 level.
[6]
The
PSST heard evidence from a number of witnesses, including an expert witness
called by the applicant, and after the final day of the hearing, on November
18, 2008, it reserved its decision. Nearly a year later, in October 2009, the
Public Service Commission of Canada (PSC) released a report, Audit of
the Immigration and Refugee Board of Canada: A report by the
Public Service Commission of Canada, October 2009 (PSC audit). The
PSC audit stated its objectives as follows:
The objectives of this audit were to
determine whether the IRB has an appropriate framework, systems and practices
in place to manage its public service appointment activities and to determine
whether its appointments and appointment processes comply with the Public
Service Employment Act (PSEA), the Public Service Commission’s (PSC)
Appointment Framework, the IRB’s human resources (HR) policies, other governing
authorities and with the instrument of delegation signed with the PSC.
[7]
The
PSC audit examined appointments made through the non-advertised appointment process
and “found 11
out of 23 appointments using non-advertised processes where merit was not met
or demonstrated … because there was either no assessment on file, or because
the assessments were incomplete … [because they] either did not evaluate all
essential qualifications for the position or did not fully evaluate one or more
essential qualification.”
[8]
Mr.
Murray submitted a copy of the PSC audit to the PSST and to the respondent by email
on October 18, 2009, stating as follows:
The above noted matter has been Researved
[sic] since October 2008. There is other information that are [sic]
relevant to the case being considered that I thought would be useful to the
panel in making its decision.
Please find attached documents on the PSC
audit of the IRB. This audit was tabled in Parliament in October 2009.
I am offering this document to be
considered as further information in this matter and if accepted, [sic] fully
prepared to make submissions.
[9]
His
message was resent on October 20, 2009, and counsel for the IRB responded by
email to the PSST stating: “The Respondent is not able to take a position on
Mr. Murray’s request, as it is not clear for what purpose the documents are
being submitted.” A Registry Officer has confirmed that the October 18, 2009 email
request was received by the PSST.
[10]
There
is nothing in the record to prove that these email messages were placed before
Mr. Giguère, the Chairperson who was seized of the complaint. The PSST did not
respond to Mr. Murray’s request. There is nothing in the final decision that
suggests that the PSC audit was considered.
[11]
Mr.
Giguère issued his decision on the merits of Mr. Murray’s complaint on December
21, 2009; 2009 PSST 033. He dismissed
the complaint as he determined that Mr. Murray had not established abuse of
authority, discrimination on the basis of race, or systemic discrimination. In
reaching this result, the PSST made three main determinations:
(a)
the applicant had a right to bring
the complaint;
(b)
the applicant did not establish a prima
facie case of discrimination in the choice of a non-advertised appointment
process; and
(c)
even if the applicant had
established prima facie discrimination, the respondent provided a
reasonable explanation for its choice of a non-advertised appointment process.
[11]
It
is without question that the issue raised by the applicant is one of procedural
fairness and I agree with the applicant that decision-makers are not entitled
to deference on issues of procedural fairness. In Sketchley v Canada (Attorney General), 2005 FCA 404, the
Court of Appeal held, at para. 53, that:
CUPE [CUPE v Ontario (Minister of
Labour), 2003 SCC 29] directs a court, when reviewing a decision challenged
on the grounds of procedural fairness, to isolate any act or omission relevant
to procedural fairness (at para. 100). This procedural fairness element is
reviewed as a question of law. No deference is due. The decision-maker has
either complied with the content of the duty of fairness appropriate for the
particular circumstances, or has breached this duty.
[12]
The
respondent’s submission that the alleged breach of procedural fairness does not
constitute an independent decision under review and that applicants should not
be able to single out procedural violations when the final decision is
reviewable on a reasonableness standard is without merit; it is irreconcilable
with the fundamental principles of administrative law. The application of the
reasonableness standard applies as a matter of substantive review, not when
evaluating whether the decision-making process was fair. Further, the passage
from Sketchley reproduced above is a complete answer to the respondent’s
argument regarding multiple reviewable decisions. It has recently been cited
with approval in de Luna v Canada (Minister of Citizenship and Immigration), 2010 FC 726, at para.
13, and MacFarlane v Day & Ross Inc, 2010 FC 556, at para. 31.
[13]
In Université
du Québec à Trois-Rivières v Larocque, [1993] 1 S.C.R. 471, the Supreme Court
held that although a tribunal has the discretion to refuse to admit evidence, a
refusal to admit relevant evidence engages the rule of natural justice that a
party to an administrative proceeding has the right to be heard (audi
alteram partem). The applicant notes that in Université du Québec the
Court found that the rejection of relevant evidence may have such an impact on
the fairness of a proceeding that there will be found to have been a breach of
natural justice.
[14]
Mr.
Murray submits that as in Université du Québec, the evidence he
submitted to the PSST was prima facie crucial to the main issue in his
complaint, which necessarily relied on circumstantial evidence to establish
that the IRB’s choice of a non-advertised appointment process was
discriminatory. According to the applicant, the PSC audit concluded that there
were significant inconsistencies in the IRB’s choice of a non-advertised
appointment process. However, the applicant notes that in his case the PSST
found the choice of a non-advertised process was reasonable despite the IRB’s failure
to comply with the mandatory requirement to provide a rationale for such
appointments.
[15]
The
respondent submits that refusing to admit evidence is not an automatic breach
of procedural fairness that justifies the intervention of the Court. According
to the respondent, the Court should only intervene where there is a refusal to
admit relevant evidence that has a significant impact on the fairness of
the proceeding.
[16]
The
respondent further submits that the test to justify the reopening of a tribunal
hearing prior to a decision being rendered for the purpose of receiving fresh
evidence is as follows:
(a)
it
must be shown the evidence could not have been obtained with reasonable
diligence for use at the trial;
(b)
the
evidence must be such that, if given, it would probably have an important
influence on the result of the case, although it need not be decisive; and
(c)
the
evidence must be such as presumably to be believed, or in other words, it must
be apparently credible, although it need not be incontrovertible.
[17]
The
respondent submits the second requirement is not met. According to the
respondent, the PSC audit is irrelevant to the complaint of systemic and
personal racial discrimination before the PSST, and therefore the audit could
not have had an impact on the PSST decision. The respondent points out that
there is no mention of systemic barriers or discriminatory practices in the PSC
audit.
[18]
In
my view, the Supreme Court’s decision in Université du Québec, above, is
not helpful given the facts before the Court. In Université du Québec,
the decision-maker explicitly rejected the evidence, whereas here the PSST made
no mention of it whatsoever. Had the decision-maker here explicitly rejected
the PSC audit, then Université du Québec would have been of assistance,
and there would have been a need to determine whether the PSC audit report was
relevant evidence.
[19]
Given
the absence of any mention of the document in the decision, I can only conclude
that it was either not brought to the attention of the decision-maker by the
PSST or the decision-maker ignored it.
[20]
The
duty of a board to provide procedural fairness does not end with the conclusion
of a hearing. If, prior to the issuance of the decision, a registrar receives
a communication from a party to a concluded hearing offering what is stated to
be relevant evidence, that request must be placed before the decision-maker for
his or her consideration. If it is not, then the party making the request has
been denied an opportunity to present what he or she views, perhaps
incorrectly, to be additional relevant evidence. Unless a board is prevented
by its legislation from re-opening a hearing prior to rendering a decision, it
must deal with such requests. The PSST has held that it has the authority to
consider post-hearing evidence; see, for example, Rajotte v Canada (Border Services
Agency),
2009 PSST 25, where the PSST held, at para. 22, that “the Tribunal is master of
procedural post-hearing matters and should proceed as informally and
expeditiously as possible, while respecting the duty of fairness.”
[21]
I am
of the view that an adverse inference may be drawn from the fact that no affidavit
was provided in this proceeding attesting that the applicant’s email and the
PSC audit were placed before the Chairperson. Had there been then the Court
might have concluded that the audit was considered and rejected. Given the
absence of any such evidence, I conclude that it is more likely than not that
the Chairperson was not provided with the email and document and I find that
this constitutes a breach of procedural fairness.
[22]
In
the alternative, if Mr. Murray’s request was provided to the decision-maker and
ignored, that too, in my view, is a breach of procedural fairness. If a
decision-maker refuses to consider possibly relevant evidence in circumstances
where the party has a right to present evidence, this automatically amounts to
a breach of procedural fairness. Conversely, the rejection by a decision- maker
of relevant evidence will not automatically lead to such a breach, and indeed Université
du Québec instructs that for the rejection of evidence to constitute a
breach of procedural fairness, the evidence must be more than just relevant.
[23]
I
cannot accept on the facts before the Court that the Chairperson did consider
the request and decided not to consider the PSC audit. This is so because (1)
there is no reference by the Chairperson in his decision to the request or to
the PSC audit despite a comprehensive analysis of all of the other evidence
before him, (2) the list of exhibits considered by the PSST does not contain
the PSC audit, and (3) the PSC audit is not included in the Tribunal Record. Even
if I were to have found that the Chairperson did consider the request and the
PSC audit, reasons would have been required for the decision to either not accede
to the request or to find that the PSC audit was not relevant. There are none.
The absence of reasons in these circumstances would have constituted an error
of law and a breach of procedural fairness.
[24]
Accordingly,
I find that the applicant’s right to procedural fairness was breached by the
PSST.
[25]
The
respondent submits that even having made this finding, I ought to dismiss this
application because the PSC audit report cannot and will not change the outcome
reached by the decision-maker. I agree entirely with the observation of
Justice Gauthier in Nagulesan v Canada (Minister of Citizenship and Immigration), 2004 FC 1382 at para.
17: “A breach of procedural fairness can only be overlooked if there is no
doubt that it had no material effect on the decision.” It is not for the Court
to assess whether the document could have, would have, or will have an effect
on the decision rendered – that is the role of the PSST. Counsel for the
respondent candidly acknowledged at the hearing that it cannot be said that it
is impossible that the PSC audit could affect the result. I cannot find in
these circumstances that there is no doubt that the document will have no material
effect on the decision.
[26]
Accordingly,
this application must be allowed with costs. The parties agreed that a
reasonable award of costs to the successful party would be $3,000.00. The
respondent made no submissions concerning the appropriate Order if the
application was granted. I find that the terms of an appropriate Order in
these circumstances are those proposed by the applicant in his memorandum: the
Chairperson of the originally constituted tribunal must consider the request
made by Mr. Murray to consider the PSC audit prior to rendering a decision.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
This
application is allowed with costs payable to the applicant, fixed in the amount
of $3,000.00, inclusive of fees, disbursements and taxes.
2.
The
decision of Chairperson Guy Giguère of the PSST is set aside, subject to the
following:
(i)
This
matter is remitted back to Chairperson Guy Gigurère to hear submissions by the
parties to the complaint as to the relevance of the Audit of the
Immigration and Refugee Board of Canada: A report by the Public Service
Commission of Canada, October 2009 (PSC audit) to the matters at issue
before the PSST in the applicant’s complaint;
(ii) After considering the submissions of the parties as to the
relevance of this
evidence, Chairperson Guy Giguère shall decide
whether to accept this
evidence;
(iii)
If he considers that this evidence should
be accepted, then he shall consider further submissions from the parties as to
whether additional evidence or argument is necessary to address that evidence
prior to rendering a new decision on the merits of the complaint of Mr. Murray;
and
(iv)
If he considers that this evidence should
not be accepted, then he shall provide his reasons for that decision and shall
also render a decision on the merits of the complaint of Mr. Murray, which may
be in the form of his Reasons for Decision dated December 21, 2009.
3.
I shall remain seized to amend the terms of this
Order if for any reason it is not
possible for Chairperson Guy Giguère to personally hear
the submissions and make the decisions referenced herein.
"Russel
W. Zinn"
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