Chopra v. Canada (Attorney General), 2005 FCA 374

Date: 20051108

Docket: A-123-05

Citation: 2005 FCA 374

CORAM:        ROTHSTEIN J.A.

                        EVANS J.A.

                        PELLETIER J.A.

BETWEEN:

DR. SHIV CHOPRA, DR. MARGARET HAYDON AND DR. GÉRARD LAMBERT

Appellants

and

ATTORNEY GENERAL OF CANADA

Respondent

Heard at Ottawa, Ontario, on November 8, 2005.

Judgment delivered from the Bench at Ottawa, Ontario, on November 8, 2005.

REASONS FOR JUDGMENT OF THE COURT BY:                                                   EVANS J.A.

Date: 20051108

Docket: A-123-05

Citation: 2005 FCA 374

CORAM:        ROTHSTEIN J.A.

                        EVANS J.A.

                        PELLETIER J.A.

BETWEEN:

DR. SHIV CHOPRA, DR. MARGARET HAYDON AND DR. GÉRARD LAMBERT

Appellants

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Ottawa, Ontario, on November 8, 2005)

EVANS J.A.

[1]                This is an appeal from a decision of Strayer D.J. of the Federal Court (reported as Chopra v. Canada (Attorney General), 2005 FC 252), dismissing an application for judicial review by the appellants to set aside a decision of the Appeal Board of the Public Service Commission. The Board had rejected an appeal by the appellants challenging the propriety of a competition for posts in Health Canada for which they had been unsuccessful candidates.

[2]                We are not persuaded that the Appeal Board made any error of law in reaching its decision. On reading the Appeal Board's reasons as a whole, we are of the view that the Board addressed the relevant question: namely, whether a screening test, as administered and marked, had an adverse impact upon visible minority candidates.

[3]                We agree with Strayer D.J.'s determination that the issue in this dispute concerns the application to the facts of the "merit principle", which governs the selection of candidates for appointment to positions in the federal public service, and is contained in subsection 10(1) of the Public Service Employment Act, R.S.C. 1985, c. P-33. We also agree that, since this is a question of mixed fact and law, unreasonableness simpliciter is the applicable standard of review.

[4]                In our opinion, there was ample material before the Appeal Board concerning, among other things, historical test data, the "80% rule" and the reliability of the test, to warrant its decision that there was no adverse impact on visible minority candidates when the pass mark for the test was lowered to the level selected by the employer, on the basis of expert advice.

[5]                For these reasons, the appeal will be dismissed with costs fixed at $5,000, including disbursements.

"John M. Evans"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                         A-123-05

APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED FEBRUARY 16, 2005 (T-776-04)

STYLE OF CAUSE:                                                            Dr. Shiv Chopra, Dr. Margaret Haydon and Dr. Gérard Lambert v. Attorney General of Canada

PLACE OF HEARING:                                                      Ottawa, Ontario

DATE OF HEARING:                                                        November 8, 2005

REASONS FOR JUDGMENT OF THE COURT:          Rothstein, Evans, Pelletier JJA.

RENDERED FROM THE BENCH BY:                           Evans, J.A.

APPEARANCES:

SOLICITORS OF RECORD: