Docket: A-362-13
Citation: 2014 FCA 162
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CORAM:
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WEBB J.A.
NEAR J.A.
SCOTT J.A.
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BETWEEN:
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OMAR KRAYA
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Appellant
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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
SCOTT J.A.
[1]
This is an appeal from a judgment of O’Keefe J.
of the Federal Court (the Judge) dated October 16, 2013 dismissing Mr. Omar
Kraya’s (the Appellant) application for judicial review of a decision of the
Public Service Staffing Tribunal (the Tribunal) dated March 30, 2012.
[2]
The Appellant was a level PG-O2 material
acquisition and support officer in the Procurement Group at the Department of
National Defence in 2009 when he applied for a position, in the same
Department, that had been internally advertised at the PG-04 level. As part of
the assessment process, he supplied the names of three individuals who could be
contacted for a reference, one of whom was his manager, Mr. Burke. Two of these
individuals (including Mr. Burke) supplied a reference and as result of the
reference provided by Mr. Burke, the Appellant was eliminated from the
competition for the position.
[3]
The Appellant, on being apprised of the
decision, contacted Mr. Burke and told him that he felt unfairly treated and
that he would be pursuing legal action. Mr. Burke then communicated with the
Community Management Office (CMO) to ask whether he could retract his reference.
This request was refused by the assessment board (the Board) as Mr. Burke
failed to provide a reason for wanting to withdraw his reference and he did not
indicate that his reference was inaccurate or untrue.
[4]
The Appellant filed 27 complaints of abuse of
authority under section 77 of the Public Service Employment Act, S.C.
2003, c. 22 asserting that the Board erred by: 1) failing to diligently pursue
his third reference from Mr. Qureshi; 2) using a reference of a person who had
no personal knowledge of the complainant; and 3) refusing to remove the
reference provided by Mr. Burke.
[5]
The Tribunal found that the Board had diligently
pursued a reference from Mr. Qureshi and that Mr. Burke had personal knowledge
of the complainant. It also concluded that in spite of Mr. Burke’s request to
retract his reference, refusal to grant the request and reliance on said
reference did not constitute an abuse of authority. The Tribunal determined
that the Board had discretion to refuse the retraction and noted that Mr. Burke
was a referee chosen by the Appellant himself.
[6]
The Judge, on judicial review, applied
reasonableness as the standard of review to the substantive issues and
correctness to issues relating to procedural fairness. He concluded that it was
reasonable for the Tribunal to find that the Board could refuse to grant the
request to withdraw the reference provided by Mr. Burke and to rely on said
reference as it did not constitute an abuse of authority.
[7]
The Appellant argued before this Court that the
Judge misstated the facts and did not properly answer the question that was
raised in the application for judicial review. He submitted that the Judge made
errors of fact by stating that “[f]airness 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”
(see 2013 FC 1045 at para. 24). The Appellant claimed that he did not submit a
reference to the Board, it was submitted by Mr. Burke and also that he did not
unilaterally retract Mr. Burke’s reference, since it was Mr. Burke who
personally contacted the Board to withdraw his reference. The Appellant’s
argument does not relate to the correctness of the procedural principle
contained in the Judge’s statement, but rather to its factual content.
[8]
The Appellant also submitted that the Judge
failed to properly address the issue that was before him, which was whether the
Board could rely on a reference once it had been retracted by the person who
submitted it.
[9]
The Judge identified the appropriate standard of
review and determined that the Tribunal’s decision fell within a range of
possible, acceptable outcomes. I conclude that the Judge applied the
reasonableness standard correctly for the reasons that follow (see Dr.
Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19,
[2003] 1 S.C.R. 226, at para. 43).
[10]
Contrary to the Appellant’s submission, I find
that the Judge examined whether the Board could rely on a reference once a
request to retract it had been made by the person who submitted it. The Judge
looked into the reference provided by Mr. Burke and determined that the
Tribunal did not err in dismissing the Appellant’s complaint and accordingly
analyzed whether it was reasonable for the Board to refuse the request to
retract a reference and to rely on it, even though it was unfavourable to the
Appellant.
[11]
The Appellant’s argument that the Judge erred
when he stated that fairness did not require allowing a “party” to unilaterally
retract evidence that is unfavourable, must also be rejected. As I read the Judge’s
statement, it can be interpreted in two ways. The Judge could have meant that
fairness does not require allowing the Appellant to unilaterally retract
evidence that he submitted (retract Mr. Burke as a reference) if such evidence
turns out to be unfavourable, or that it does not require allowing Mr. Burke to
retract his reference. In either case, the statement is correct in that it is
the Board’s duty to evaluate candidates and to determine their qualifications
based on the evidence they chose to provide, including references, whether they
turn out to be favourable or not.
[12]
I agree with the Judge that the decision of the
Tribunal that the Board did not abuse its authority when it relied on the
reference provided by Mr. Burke (which he attempted to retract without
providing any reasons for doing so) was reasonable.
[13]
Accordingly, I would dismiss the appeal, with
costs.
"A.F. Scott"
“I agree.
Wyman W. Webb J.A.”
“I agree.
D.G. Near J.A.”
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