Date:
20130606
Docket:
T-2121-11
Citation:
2013 FC 611
Ottawa, Ontario,
June 6, 2013
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
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ISAAC JALAL
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Applicant
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and
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MINISTER OF HUMAN
RESOURCES AND SKILLS DEVELOPMENT CANADA
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
Mr.
Jalal cannot accept that he was eliminated from a selection process competition
for up to nine new positions within the Federal Public Service. He did not make
it into the staffing pool. He believes he was better than the seven candidates
who were appointed from that pool. Ostensibly, the selection panel eliminated
him from the competition on the basis that he failed three questions in the
oral interview. His belief, however, is that he was failed because he is a
member of a visible minority, and because the candidates who were selected were
“white”. More particularly, the first candidate chosen was favoured because she
is francophone.
[2]
Mr.
Jalal complained to the Public Service Staffing Tribunal that there was abuse
of authority in the application of merit and in the choice of process. Following
a number of pre-hearing decisions and conferences, the complaint was heard, and
dismissed, by John A. Mooney, vice-chairman of the Tribunal. This is a judicial
review of that decision.
DECISION
[3]
Mr.
Jalal’s application for judicial review shall be dismissed with costs. Contrary
to his submissions, he was given a fair hearing. There was no reasonable
apprehension of bias on the part of the examiners or the Tribunal. Mr. Mooney’s
decision is eminently reasonable. As he explained clearly, his duty was not to
remark the exams but rather simply to determine whether Mr. Jalal had been
rejected because of an abuse of authority or adverse discrimination due to race
or ethnic origin. His conclusion that such was not the case was well motivated
and should not be set aside.
FACTS
[4]
By
way of a Public Service Staffing Advertisement limited to employees in the
Public Service within the National Capital Region, the Department of Human
Resources and Social Development – Learning Branch advertised for the position
of “Advisor”, classified as PM-05, AS-05. It was anticipated that up to nine
positions would be filled soon, or in the future.
[5]
The
accompanying Statement of Merit Criteria & Conditions of Employment set out
15 essential qualifications including “ability to lead teams, ability to
analyze issues and provide recommendations, advice and guidance” and “ability
to work effectively under the pressure of deadlines and large workloads.”
[6]
The
selection panel comprised nine members. They determined that qualifications
would be assessed through the candidates’ curriculum vitae, a written
exam, reference checks and an interview.
[7]
Mr.
Jalal succeeded in the written exam, and his cv and reference checks do not
appear to be in issue. However, the selection board determined that he failed
the oral interview (exam) with respect to the three essential qualifications
referred to above.
[8]
On
15 June 2009, Human Resources emailed Mr. Jalal to say: “We regret to inform
you that your candidacy cannot be given further consideration in this selection
process as you did not obtain the pass mark for one or more of the essential
qualifications.” He was not satisfied with a post-board meeting and so on 10
July 2009 filed a complaint on the Public Service Staffing Tribunal complaint
form. He was not aware that at that time one appointment had already been made.
His complaint was originally directed to the fact that he did not get into the
pool.
THE GRIEVANCE
PROCESS
[9]
The
complaint was filed with reference to s. 77 of the Public Service Employment
Act. Subsection 77(1) reads as follows:
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77.
(1) When the Commission has made or proposed an appointment in an internal
appointment process, a person in the area of recourse referred to in
subsection (2) may — in the manner and within the period provided by the
Tribunal’s regulations — make a complaint to the Tribunal that he or she was
not appointed or proposed for appointment by reason of
(a)
an abuse of authority by the Commission or the deputy head in the exercise of
its or his or her authority under subsection 30(2);
(b)
an abuse of authority by the Commission in choosing between an advertised and
a non-advertised internal appointment process; or
(c)
the failure of the Commission to assess the complainant in the official
language of his or her choice as required by subsection 37(1).
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77.
(1) Lorsque la Commission a fait une proposition de nomination ou une
nomination dans le cadre d’un processus de nomination interne, la personne
qui est dans la zone de recours visée au paragraphe (2) peut, selon les
modalités et dans le délai fixés par règlement du Tribunal, présenter à
celui-ci une plainte selon laquelle elle n’a pas été nommée ou fait l’objet
d’une proposition de nomination pour l’une ou l’autre des raisons suivantes :
a)
abus de pouvoir de la part de la Commission ou de l’administrateur général
dans l’exercice de leurs attributions respectives au titre du paragraphe
30(2);
b)
abus de pouvoir de la part de la Commission du fait qu’elle a choisi un
processus de nomination interne annoncé ou non annoncé, selon le cas;
c)
omission de la part de la Commission d’évaluer le plaignant dans la langue
officielle de son choix, en contravention du paragraphe 37(1).
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[10]
It
is a condition precedent within s. 77 that one cannot complain until the Public
Service Commission has made or proposed an appointment. Then, and only then,
may a person in Mr. Jalal’s position make a complaint to the Tribunal that he
was not appointed or proposed for appointment. Mr. Jalal had standing under s.
77(2) and s. 34 in that he was an unsuccessful candidate in an advertised
internal appointment process. The issue whether Mr. Jalal had another recourse
because his name was not entered in the pool is not before me.
[11]
Mr.
Jalal’s complaint led to some confusion as it did not conform to the Public
Service Staffing Tribunal Regulations. In accordance with sections 10 and
11 thereof, the complaint must be received by the Tribunal no later than 15
days after the complainant receives notice of the appointment or the proposed
appointment, to which must be attached copy of the said appointment or proposed
appointment. The reason for this is that the person appointed becomes a party
to the process and has the right to defend himself or, in this case, herself.
[12]
As
a result, some email correspondence was generated between the Tribunal Registry
and Human Resources, as the latter could not identify the person against whom
the complaint was levied. Mr. Jalal then came up with a name, but she had been
appointed more than 15 days after his complaint. Fortuitously, it turns out
that one Sandra Langlois had been appointed within the 15-day window, and so
the complaint was treated as being directed against her.
[13]
Mr.
Jalal has taken the position that his complaint was directed against all seven
appointees, some of whom were only appointed the year following his complaint.
He submits that the Tribunal was inconsistent in that it allowed for the
production of the exam results of all seven successful candidates, but then
ruled on the merits that the complaint was deemed to have only been directed
against Ms. Langlois. Mr. Jalal’s logic is faulty. At a preliminary stage, such
as production of documents, one may well allow discovery which might lead to a
chain of inquiry. It does not follow that all these documents will be held to
be relevant when the final decision is rendered.
[14]
Mr.
Mooney acted both reasonably and correctly in limiting the complaint to the
successful candidature of Ms. Langlois.
ISSUES
[15]
In
its reasons for decision, the Tribunal described the issues before it as
follows:
36 The Tribunal must decide the following
issues:
(i)
Did
the respondent abuse its authority in the assessment of the complainant’s qualifications?
(ii)
Did
the respondent discriminate against the complainant because of his race or
ethnic origin?
(iii)
Did
the respondent breach departmental policies and provide misleading information
in the assessment guide?
(iv)
Was
Ms. Ducharme sufficiently fluent in English to assess the complainant’s
qualifications?
(v)
Did
the respondent show personal favouritism towards Ms. Langlois because she is
francophone?
[16]
In
his application record, Mr. Jalal described the issues in this judicial review as
follows:
The PSST has:
•
ruled
on irrelevant issues and has considered primarily irrelevant factors;
•
based
its decision on an erroneous finding of fact without regard for the material
and evidence before it;
•
contradicted
its own regulations and acted arbitrarily in exercising its discretion;
•
conducted
questionable hearing process;
•
rejected
to consider the crucial evidence provided by the applicant;
•
favoured
and ruled on the respondent’s misleading and incorrect information; and
•
the
applicant did not get a chance to make his case (he and his representative were
repeatedly cut off by the respondent’s counsel during the hearing). Further,
the applicant was denied the opportunity to question the respondent’s witnesses
involved in appointees’ assessments.
[17]
Put
another way, Mr. Jalal submits that the Tribunal erred in law, made palpable
and overriding errors in its finding of fact and acted in a procedurally unfair
manner.
PROCEDURAL
UNFAIRNESS
[18]
Mr.
Jalal was entitled to procedural fairness. He was entitled to have a fair
opportunity to make his case. On these issues, the Tribunal is not entitled to
deference (Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister
of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, [2013] SCJ No 28 (QL)).
[19]
Mr.
Jalal’s complaints in this area are myriad.
[20]
He
complains that Human Resources and the Tribunal were talking behind his back in
the form of an exchange of emails. This exchange was generated by the fact that
the Registry was required to pass the complaint on to the employer. The
employer naturally asked the identity of the person against whom the complaint
was directed. This led to the Registry communicating with Mr. Jalal. This was
purely administrative, and in no way unfair.
[21]
There
were nine members of the selection panel. The employer stated at a pre-hearing
conference that it was only going to call as witnesses the two individuals who
had administered the oral exam to Mr. Jalal. He, and his union representative,
could have subpoenaed the other seven, but did not.
[22]
Mr.
Jalal complains that witnesses were not excluded from the hearing .This allowed
for collusion and perjury. It was not up to the Tribunal to exclude witnesses.
Mr. Jalal and his representative could have moved for exclusion. His allegation
of perjury is completely without merit.
[23]
He
complains that his union representative was constantly interrupted. Yet there
is no complaint from her.
[24]
Important
evidence was excluded. The hearing had been set down for two days. Although
evidence was closed, there was not sufficient time for oral argument.
Consequently, it was agreed that submissions be made in writing. Mr. Jalal took
advantage of this to, in effect, lead further testimony. Mr. Mooney quite
rightly discounted this evidence. For instance, Mr. Jalal said that the notes
taken by the examiners during his oral exam were incomplete. It was open to him
to make that statement during his testimony so as to give the two examiners,
who were witnesses, an opportunity to respond. Material and “testimony”
received after the hearing could have been produced earlier. Mr. Mooney
properly exercised his discretion in his exclusionary order.
[25]
Mr.
Jalal also complains about his representative. At the beginning of the hearing,
she withdrew his complaint that the appointments violated Mr. Jalal’s Charter
rights. He said she was not so authorized. However, the discrimination
provisions of the Canadian Human Rights Act did form part of the
hearing. The Charter would not have added anything.
[26]
Mr.
Jalal takes the position that some of the issues set up by Mr. Mooney were
irrelevant and not before him. I find it impossible to make that determination.
His final written argument before the Tribunal, which he wrote, rather than his
union representative, runs some 169 paragraphs and then his later response ran
30 pages. His application for judicial review is accompanied by a 100-paragraph
affidavit, and his memorandum of fact and law runs 129 paragraphs. Mr. Mooney
did not act unreasonably in characterizing the issues as he did. In this
judicial review, Mr. Jalal did not pursue his allegations that one of the
examiners was not sufficiently conversant with the English language to
appreciate his answers in the oral exam and that Ms. Langlois was favoured as
she is a francophone. However, those allegations were before the Tribunal.
[27]
I
conclude that Mr. Jalal was given a fair hearing.
REASONABLE
APPREHENSION OF BIAS
[28]
Turning
now to another aspect of natural justice, the alleged apprehension of bias, Mr.
Jalal has submitted an analysis of the exam results of the seven appointees, as
well as his own, both with respect to the written exam, which is irrelevant
since he passed, and the interview. He concluded:
After having reviewed and compared my examples re:
questions A1, A3 and A4, with all the appointees’ answers, particularly, with
candidates: #2, #3, #4 and #5, it is crystal clear that my answers
were much stronger and appropriate than most of these appointees. I
believe that if a reasonably informed bystander were to compare my examples
with the examples of the seven appointees, he would most likely perceive bias
on part of the selection board.
[29]
Mr.
Jalal was actually asking the Tribunal to redo his assessment. That was not its
function, and is not the function of this Court. The Tribunal was to determine
whether Mr. Jalal’s marks, and the marks of others, gave any credence to his
allegation of bias or abuse. Perhaps another selection panel would have scored
Mr. Jalal higher, perhaps not. That is not the issue. The issue is whether is
it was reasonable for the Tribunal to conclude that there was no evidence of an
apprehension of bias. As stated by Mr. Justice de Grandpré in Committee for
Justice and Liberty v Canada (National Energy Board), [1978] 1 S.C.R. 369, at
page 394:
[…] the apprehension of bias must be a reasonable
one, held by reasonable and right minded persons, applying themselves to the
question and obtaining thereon the required information. In the words of the
Court of Appeal, that test is “what would an informed person, viewing the
matter realistically and practically—and having thought the matter
through—conclude.
[30]
In
my opinion, there is nothing in the record to support Mr. Jalal’s speculation
that the selection panel was biased and selected another out of favouritism, or
that Mr. Mooney, the vice-chair of the Tribunal, was likewise so infected.
THE TRIBUNAL’S
FINDINGS - ERRORS IN FACT AND LAW
[31]
Mr.
Jalal submits that alleged errors of law, and I have found none, should be
assessed on a correctness standard. He submits that Mr. Mooney was not dealing
with his home statute because others also deal with it and in considering the Canadian
Human Rights Act was not dealing with a closely related statute. This
cannot be so as the Tribunal is specifically directed to consider adverse
discrimination within the meaning of the Canadian Human Rights Act. In
any event, the standard of review is not in issue. There were no pure questions
of law. At most, there were mixed questions of fact and law and findings of
fact. Since Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008]
SCJ No 9 (QL), both matters have been assessed on a reasonableness standard.
[32]
As
a matter of fact and law, Mr. Jalal was required to give the Canadian Human
Rights Commission notice so as to allow it to participate in the hearing if it
so chose. He gave that notice but the Commission declined to participate.
[33]
As
stated by the Supreme Court in Dunsmuir, above, at paragraph 47:
Reasonableness is a deferential standard animated by
the principle that underlies the development of the two previous standards of
reasonableness: certain questions that come before administrative tribunals do
not lend themselves to one specific, particular result. Instead, they may give
rise to a number of possible, reasonable conclusions. Tribunals have a margin
of appreciation within the range of acceptable and rational solutions. A court
conducting a review for reasonableness inquires into the qualities that make a
decision reasonable, referring both to the process of articulating the reasons
and to outcomes. In judicial review, reasonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[34]
As
Mr. Justice Iacobucci warned us in Canada (Director of Investigation
and Research) v Southam Inc, [1997] 1 S.C.R. 748, [1996] SCJ No 116 (QL), at
paragraph 80:
I wish to observe, by way of concluding my discussion
of this issue, that a reviewer, and even one who has embarked upon review on a
standard of reasonableness simpliciter, will often be tempted to find
some way to intervene when the reviewer him- or herself would have come to a
conclusion opposite to the tribunal’s. Appellate courts must resist such
temptations. My statement that I might not have come to the same conclusion as
the Tribunal should not be taken as an invitation to appellate courts to
intervene in cases such as this one but rather as a caution against such
intervention and a call for restraint. Judicial restraint is needed if a
cohesive, rational, and, I believe, sensible system of judicial review is to be
fashioned.
[35]
I
accept, without need for further comment, that the Tribunal made a proper
assessment in determining that the employer had not contradicted its own
regulations.
[36]
Mr.
Jalal has seized upon every possible imperfection in the process. As Mr.
Justice Joyal noted in Miranda v Canada (Minister of Employment and
Immigration), 63 FTR 81, [1993] FCJ No 437 (QL):
It is true that artful pleaders can find any number
of errors when dealing with decisions of administrative tribunals. Yet we must
always remind ourselves of what the Supreme Court of Canada said on a criminal
appeal where the grounds for appeal were some 12 errors in the judge's charge
to the jury. In rendering judgment, the Court stated that it had found 18
errors in the judge's charge, but that in the absence of any miscarriage of
justice, the appeal could not succeed.
[…] There can always be conflict on the evidence.
There is always the possibility of an opposite decision from a differently
constituted Board. Anyone might have reached a different conclusion. Different
conclusions may often be reached if one perhaps subscribes to different value
systems. But in spite of counsel for the applicant's thorough exposition, I
have failed to grasp forcefully the kind of error in the Board's decision which
would justify my intervention. The Board's decision, in my view, is fully consistent
with the evidence.
COSTS
[37]
There
is no reason why costs should not follow the event. The employer was put to
considerable effort in defending this application. The Minister suggests lump
sum costs, all inclusive, of $3,500. In its discretion, this Court is entitled
to grant costs on a lump sum basis. Indeed, this approach is preferred as it
saves both parties detailed calculations and attendance before a taxing
officer. However, a rough and ready calculation should not exceed Tariff B.
Based on Column III of Tariff B, I calculate taxable fees of 17 units at $140
per unit, or $2,380. As well, there are necessary disbursements. I fix taxable
costs and disbursements at $2,750, inclusive of all taxes, being confident that
if taxed, the assessment would be greater than that.
ORDER
FOR
REASONS GIVEN;
THIS
COURT ORDERS that
1.
The
application for judicial review is dismissed, with costs in the amount of $2,750,
all inclusive.
“Sean Harrington”
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