Date:
20131016
Docket:
T-858-12
Citation:
2013 FC 1045
Ottawa, Ontario,
October 16, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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OMAR KRAYA
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is a judicial review of a decision by the Public Service Staffing Tribunal (the
tribunal) dismissing the applicant’s complaint that an assessment board had
abused its authority by relying on a retracted reference to reject his
application.
[2]
The
applicant seeks an order returning the matter to the tribunal for
redetermination.
Background
[3]
The
applicant is a material acquisition and support officer at the Procurement
Group of the Department of National Defence (DND). His position is at the PG-02
level. He applied for appointment into a pool of qualified candidates at the
PG-04 level.
[4]
The
final stage of the competition was consulting references. The applicant had
provided his supervising manager as one of three references (Mr. Burke). The
selection board contacted Mr. Burke, after which the applicant was informed
that he had failed the reference check. Mr. Burke subsequently contacted the board
to withdraw his reference and the applicant requested that the board do the
same. The board refused and the applicant was therefore unsuccessful in the
competition.
[5]
The
applicant complained to the tribunal that this refusal, among other actions,
constituted an abuse of authority. Only this refusal is at issue in the
judicial review.
The Decision
[6]
On
March 30, 2012, the tribunal released its decision with reasons cited as 2012
PSST 0009. The tribunal summarized the evidence it had considered, which
included testimony from the applicant, Mr. Burke and a DND employee involved in
the appointment process.
[7]
Notably,
Mr. Burke testified that he had withdrawn his reference because he understood
the applicant would be pursuing legal action.
[8]
The
tribunal concluded that relying on Mr. Burke’s reference in spite of the
request to retract it did not constitute an abuse of authority. It cited a
previous tribunal decision indicating the important criterion for a reference
given and whether the reference given is sufficiently familiar with the work of
the candidate to provide adequate information. The discretion to accept the
retraction rested with the assessment board, which is tasked with determining
whether it has sufficient information to make an informed assessment of the
candidate.
[9]
The
tribunal held that the evidence showed that Mr. Burke was the applicant’s
manager. Although he did not provide direct supervision, Mr. Burke talked with
the applicant about work on a daily basis and participated in managing his
performance. The evidence did not show that the reference itself was
unreliable, unrepresentative or misleading. If the applicant had reservations
about the reference given, he should not have provided his name to the
assessment board.
[10]
The
tribunal dismissed the complaint.
Issues
[11]
The
applicant’s memorandum raises the following issue:
1. If a person
acting as a job reference requests that their reference be retracted, must a
board honour this request?
[12]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the tribunal
err in dismissing the complaint?
Applicant’s Written Submissions
[13]
The
applicant argues the standard of review is reasonableness, although he also refers
to procedural fairness. The applicant’s submissions cite a dictionary
definition for the word “retract” and argue that the board acted improperly and
prejudicially by relying on the retracted reference, since it has no value and
should be considered null and void. The applicant argues the tribunal acted
unfairly by supporting the decision of the board.
Respondent’s Written Submissions
[14]
The
respondent agrees that the standard of review is reasonableness and argues that
the tribunal has committed no reviewable error. The respondent also argues that
the applicant’s record in this judicial review includes documents that were not
before the tribunal and are therefore not properly before the Court.
[15]
The
respondent argues that Mr. Burke, who attempted to withdraw his reference,
provided no reason to the board for wanting to do so and did not suggest his
reference was inaccurate or untrue.
[16]
The
respondent also argues that the threshold to find an abuse of authority is high
and the burden is on the applicant to establish that a decision was made in bad
faith, influenced by personal favouritism or otherwise affected by similar
consideration. The term “abuse of authority” is partially defined by subsection
2(4) of the Public Service Employment Act, SC 2003, c 22, ss 12, 13, which
provides that it includes bad faith and personal favouritism. Employees should
understand that a complaint of abuse of authority is a very serious matter and
more than merely a forum for stating a perceived injustice.
[17]
The
respondent further submits that the assessment board is in the best position to
determine whether they have sufficient information to make an assessment. Its
decision is only subject to review if the applicant can establish, on a balance
of probabilities with clear and cogent evidence, that there has been bad faith,
personal favouritism, discrimination, corruption, gross negligence or
misfeasance of a similar egregious nature. The evidence here was that Mr. Burke
was familiar with the work of the applicant. The Act gives broad discretion to
deputy heads in assessment methods.
[18]
The
respondent asks the Court to dismiss the application and grant $2,500 in costs.
The respondent also requests an order directing that the style of cause be
amended to make The Attorney General of Canada as the sole respondent in this
application.
Analysis and Decision
[19]
Issue
1
What is the appropriate
standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[20]
The
Supreme Court of Canada recently applied a reasonableness standard in reviewing
a decision of the tribunal (see Canada (Attorney General) v Kane,
2012 SCC 64, [2012] 3 S.C.R. 398).
[21]
In
reviewing the tribunal’s decision on the standard of reasonableness, the Court
should not intervene unless the tribunal came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir at paragraph 47).
As the Supreme Court held in Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, it is not up to
a reviewing court to substitute its own view of a preferable outcome, nor is it
the function of the reviewing court to reweigh the evidence (at paragraphs 59
and 61).
[22]
It
is trite law that no deference is warranted on matters of procedural fairness
(see Khosa at paragraph 43).
[23]
Issue
2
Did the tribunal err in
dismissing the complaint?
I have considered the applicant’s argument in this judicial review that the
board’s use of the reference constituted an abuse of authority. I see no reason
to disturb the tribunal’s finding on this point, given the deference owed to
its expertise in interpreting its home statue and in evaluating these
complaints. As the tribunal’s reasons indicate, the purpose of using a
reference is to hear from a person who is familiar with the applicant’s
previous work. The reference given was indeed familiar with the applicant’s
work.
[24]
Procedurally, I do not agree with the applicant’s contention that using
a reference he provided is unfair. Fairness does not require allowing a party
to unilaterally retract evidence that he himself submitted to the tribunal if
such evidence turns out to be unfavourable. The purpose of a reference is for
the board to hear the opinion of a third party on the applicant’s performance.
It is an extremely common method used in hiring and that is how it was used in
this case.
[25]
I would dismiss the application for judicial review.
[26]
I
have considered the respondent’s request for costs in the amount of $2,500. I
am not prepared to make an order for costs based on the facts of the case.
[27]
The
respondent, in its written submissions, requested that the style of cause be
amended by making The Attorney General of Canada the sole respondent. I am
prepared to grant this amendment.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The application for
judicial review is dismissed. There shall be no order for costs.
2. The style of cause is
amended by removing The Deputy Minister of National Defence and the Deputy
Minister of Public Works and Government Services Canada as respondents and
adding The Attorney General of Canada as the sole respondent.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Public
Service Employment Act, SC
2003, c 22, ss 12, 13
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2. (4)
For greater certainty, a reference in this Act to abuse of authority shall be
construed as including bad faith and personal favouritism.
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2.
(4) Il est entendu que, pour l’application de la présente loi, on entend
notamment par « abus de pouvoir » la mauvaise foi et le favoritisme
personnel.
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