Date:
20041005
Docket:
T‑1191‑03
Citation:
2004 FC 1363
Ottawa, Ontario, the 5th day of October
2004
Present: THE
HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
FRANCINE
PELLETIER
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
and
THÉRÈSE COUTURE
Respondents
REASONS
FOR ORDER AND ORDER
[1]
This is an application for judicial review of a decision on
June 4, 2003, by which the chairperson of the Public Service
Commission appeal board, Janine Kean (the chairperson of the appeal board)
dismissed the appeal filed by Francine Pelletier (the applicant) pursuant
to section 21 of the Public Service Employment Act,
R.S.C. 1985, c. P‑33 (the Act), to challenge the appointment
made following a competition organized by the Immigration and Refugee Board
(I.R.B.) to fill the position of manager, Members Services (the position).
[2]
The instant application for judicial review raises five questions
concerning primarily a failure to observe the rules of natural justice, a
reasonable apprehension of bias and the merit principle with respect to
questions of fact and law. For the reasons contained herein, the Court
concludes that the application for judicial review should be dismissed.
BACKGROUND TO CASE
[3]
On June 21, 2002, a competition notice containing a statement of
qualifications required for the position was sent to I.R.B. personnel in
Montréal. On the same day a panel of two persons was formed:
Francine Decelles (the panel chairperson) and John Pisciuneri (panel
member).
[4]
On October 10, 2002, five persons took the written examination and two
of them obtained a passing grade, allowing them to proceed to the stage of an
interview by the panel. The latter then met with the managers of the
two candidates to assess the following qualities: discretion, judgment and
interpersonal relations.
[5]
On December 13, 2002, an eligibility list was created on which the name
of T. Couture (the co‑respondent) was first and the applicant’s name
second. The co‑respondent was selected.
[6]
On January 2, 2003, the applicant filed an appeal against the
appointment of the co‑respondent, pursuant to section 21 of the Act,
an appeal board was formed and the chairperson of the appeal board constituted
the board. A hearing was held on April 25, 2003, and a decision
signed on June 4, 2003, in which the chairperson concluded that the
appeal should be dismissed.
GROUNDS OF APPEAL BROUGHT
BEFORE THE APPEAL BOARD
[7]
The applicant submitted the following allegations in support of the
appeal:
-
the panel erroneously evaluated the applicant’s replies by not giving
them the correct rating (questions 10(a) and (b));
-
on the verification of competence (question 8(b)), the panel did
not take into account that there were two parts to the reply and
consequently the applicant was unfairly evaluated, since the verification
procedure did not allow a precise determination of candidates’ merit;
-
on questions 12, 14, 15 and 16, the applicant argued that there were
no expected replies and consequently the panel’s evaluation was first
subjective, and second difficult to understand, which did not allow an adequate
assessment of the candidates’ merit;
-
at the interview and the panel’s meeting with the applicant’s
supervisor, the evaluation of her personal qualities was improperly done and in
general there was a lack of fairness towards her;
-
finally, the applicant complained of the fact that the panel
consisted only of two members and there was a history of conflict between
the panel’s chairperson and the applicant, and consequently there should have
been a third person on the panel to ensure impartiality and fairness in the
procedure to be followed, and so avoid a biased result or an appearance of bias
or conflict of interest.
HEARING BEFORE APPEAL BOARD
AND ANALYSIS OF HEARING
[8]
According to the evidence in the record, the chairperson of the appeal
board, with over six months’ experience as member of an appeal board,
presided over a one‑day hearing on April 25, 2003. The
applicant was represented by Karina Krespo (Ms. Krespo), who began
the presentation of the appeal, though she had never acted in this capacity
before. In the course of the morning, she was replaced by T. Bilodeau
(Ms. Bilodeau), an employee of the Employment and Immigration Union, a
component part of the Public Service Alliance, since 1978. She had previously
appeared before an appeal board on several occasions. The I.R.B. was
represented by one of the panel members, Mr. Pisciuneri, a human resources
advisor for the said Commission, who had experience before an appeal board on
one previous occasion. The chairperson of the selection panel was present.
Ms. Couture, the co‑respondent, told the appeal board that she could
not attend for family reasons.
[9]
Although no provision in legislation or regulations requires that the
hearing of an appeal board be taped, the chairperson of the appeal board
ensured that it was. Having in mind the strong possibility that the decision to
be rendered by the appeal board would be the subject of judicial review,
Ms. Bilodeau asked the appeal board chairperson several times during the
hearing to check the recording, which was done. However, the three cassettes
recording the hearing proved to be blank and a representative of the federal
Public Service Commission Recourse Branch (the Recourse Branch),
R. Maisonneuve (Mr. Maisonneuve), informed Ms. Bilodeau in
writing that [TRANSLATION] “the recording was not working during the hearing”.
Additionally, the parties informed the Court that the evidence as it stood in
the case at bar was sufficient for a ruling to be made on each of the arguments
raised.
[10]
At the start of the hearing the chairperson of the appeal board, relying
in part on section 5.9 of the Appeal Board Practice and Procedures
Guide (the Guide) prepared by the Recourse Branch, explained the procedure
to be followed:
-
the I.R.B. gives an outline of the selection process, including an
explanation of the results and the reasons for the applicant’s lack of success;
the applicant may request clarification of the explanations and reasons;
-
the applicant is asked to submit her allegations (the grounds for
appeal) and to present her evidence by way of documents and witnesses, who in
turn may be cross‑examined by the I.R.B. or questioned by the successful
candidate or the appeal board;
-
the I.R.B. is then asked to respond to the allegations and present
its evidence, which it does through documents and witnesses; the latter are
subject to cross‑examination by the applicant and questions from the
appeal board or the successful candidate;
-
if the successful candidate is present, she is invited to submit her
evidence or make representations;
-
the applicant has an opportunity to make a reply, so that she may
again rebut the I.R.B.’s response and evidence;
-
before making its decision, the appeal board may seek information
from the parties and the successful candidate, and ask them to make the
necessary clarifications, and the parties are asked to submit their arguments.
As formulated, this procedure
allowed the parties to make their case at the hearing.
[11]
Mr. Pisciuneri, speaking for the I.R.B., spent over twenty minutes
explaining the staffing process, its background, the statement of
qualifications, the written examination, the interview and consultation with
the candidates’ managers, and filed the documents in support of the said
process. At the end of his submission, he tried to comment on disclosure and
criticism by the applicant in this regard, but the appeal board chairperson
intervened, telling him he should observe the procedure and was not entitled to
discuss this issue at that time.
[12]
Through Ms. Krespo, the applicant filed an objection to the non‑disclosure
of certain (unspecified) documents, since they had still not been given to the
applicant. Despite the fact that the Public Service Employment Regulations
(2000), SOR/2000‑80 (the Regulations), provide in subsections 25(2)
and 25(3) that disclosure must be made within a specified time (45 days
after the notice of appeal) and that the hearing cannot take place until
disclosure is complete, and the applicant did not ask the appeal board to make
a ruling on this point before the hearing, the appeal board chairperson took
[TRANSLATION] “the objection under reserve, indicating that if the undisclosed
information was supplied by the Department the appellant would be entitled to
add to her allegations, if necessary” (see paragraph 3 of the reasons for
decision). At paragraph 27 of the reasons, the appeal board dismissed the
objection: [TRANSLATION] “as none of the missing information or documents was
identified, the appeal board cannot allow the objection”.
[13]
In submitting this objection, Ms. Krespo consulted with
Ms. Bilodeau on the spot.
[14]
Then, after her submission, as the applicant considered she was
[TRANSLATION] “in cross‑examination” (see respondent’s record, examination
of Ms. Bilodeau on affidavit, at pages 80, 87, 91 and 92), she tried
to obtain replies from Mr. Pisciuneri and the panel chairperson. The
appeal board chairperson intervened several times to determine the relevance of
questions or a reference to the allegation justifying a particular question.
The result of the exercise was that certain questions had to be answered and
others not, for reasons of relevance or a lack of connection with any of the
allegations (see reasons for decision, at paragraphs 13 and 14).
[15]
The appeal board chairperson, with an explanation, asked the applicant
to file the written allegations. The applicant only filed them after the appeal
board chairperson insisted, and did so with some reluctance.
[16]
There was a break for about 15 minutes in the morning. Ms. Bilodeau
requested another about half an hour before the noon break, and this was
denied, the reason being that the next break was imminent. This last break
lasted for over an hour.
[17]
When she returned the applicant, through Ms. Bilodeau, told the
appeal board that she could not continue because of the appeal board
chairperson’s lack of objectivity and that her decision was to withdraw from
the process and leave the room, but not to withdraw the appeal.
[18]
The appeal board chairperson suggested that the applicant should
carefully assess the consequences of such a decision, and a fifteen‑minute
break was taken for this purpose. After the break, the chairperson asked the
applicant if her decision was the same, and received an affirmative answer. At
the time of departure, Mr. Pisciuneri indicated that he intended to
proceed with his evidence (see respondent’s record, examination of
Ms. Bilodeau, page 126), and in this regard he filed a working paper
prepared for the hearing titled [TRANSLATION] “Meeting with P.S.C. in
connection with Appeal by Francine Pelletier” (Exhibit M‑15).
The hearing continued with only the I.R.B. present.
APPEAL BOARD’S DECISION
[19]
As mentioned earlier, the decision on June 4, 2003, was to
dismiss the appeal. The reasons in support of this decision were the following:
-
as indicated earlier, the preliminary objection to the incomplete
disclosure of certain unidentified documents and/or information taken under
reserve was dismissed;
-
Ms. Bilodeau, the applicant’s representative, challenged the
procedure to be followed as set out by the appeal board chairperson;
-
the appeal board chairperson had to insist that the written
allegations be filed;
-
the chairperson indicated that she had to intervene [TRANSLATION]
“several times” in order to understand the relevance of the questions, and she
had to remind the applicant’s representative to present her evidence before
proceeding with argument, and that breaks were allowed so the evidence to be
presented could be identified in relation to the allegations;
-
after reviewing the allegations as presented by the applicant, and
the I.R.B.’s position in reply, and after noting the applicant’s decision to
withdraw without discontinuing the appeal, the chairperson ruled that the
evidence submitted did not support any allegation, and on the contrary the
expected responses were justified and the marking was reasonable and unbiased;
consequently, the followed procedure showed that the merit principle had been
observed.
APPLICANT’S ARGUMENT
[20]
The applicant argued that as the appeal board chairperson did not have
much experience, she imposed on the parties a procedure that was contrary to
what Ms. Bilodeau had seen in her many appearances before appeal boards,
and that by acting in this way she created a reasonable apprehension of bias.
Her actions prevented the applicant from making her case and so created a
denial of justice. Amongst others, the way the preliminary objection was
handled, the continual interruption of representatives, the fact that witnesses
were not sworn, the refusal to allow a second break in the morning and the
filing of a new document (Exhibit M‑15) after the applicant had
withdrawn from the hearing were examples of unacceptable behaviour by an appeal
board chairperson.
[21]
Because of that behaviour the applicant, her witnesses and her
representatives had to leave the hearing, as they were not receiving fair and
equitable treatment and their right to be heard at the hearing was not being
respected.
[22]
Further, the applicant found it difficult to understand why the three
hearing cassettes were blank, especially as the appeal board chairperson
checked the recording during the hearing at Ms. Bilodeau’s request.
[23]
The applicant submitted that a right‑minded and reasonable person
with knowledge of the situation would conclude that the chairperson could not
have given a fair and equitable decision.
[24]
The applicant added that the appeal board chairperson should not have
concluded that the selection process was in accordance with the merit
principle, as she did not have all the evidence which the applicant could
supply, having prevented her from supplying it by her conduct and attitude and
consequently forcing the applicant, her witnesses and representatives to
withdraw from the hearing.
ARGUMENT OF ATTORNEY GENERAL
OF CANADA (co‑respondent)
[25]
In rebuttal, the co‑respondent argued that the applicant wanted to
impose her own procedure through her representatives, thereby departing from
the procedure set out at the start of the hearing. According to the rules, the
preliminary objection as to disclosure should have been made long before and
such an objection could not be made at the hearing.
[26]
The conduct of the applicant’s representatives (such as not following
the procedure explained at the start of the hearing) led the appeal board
chairperson to intervene several times when they were putting questions to
I.R.B. representatives. The decision to take the preliminary objection under
reserve did not show that the appeal board chairperson was preventing the
applicant from making her case.
[27]
The second request by Ms. Bilodeau for a break in the morning was
made close to the noon break and the chairperson was justified in denying it
for that reason. In any case, the decision was discretionary and was part of
the appeal board’s function at the hearing.
[28]
As to the taping of the hearing and the question of whether the swearing
in of witnesses was necessary, the co‑respondent explained that there was
no legislative or regulatory requirement to that effect. The appeal board is
master of its own procedure and the absence of a recording does not infringe
the rules of natural justice.
[29]
The applicant had to bear the consequences of withdrawing from the
hearing. She could not argue she was prevented from making her case when she
was herself responsible for creating the situation.
[30]
Based on the evidence submitted, and taking the applicant’s allegations
into account, the appeal board chairperson had information on which she could
conclude that the merit principle had been observed, and it was her duty to do
so.
[31]
The co‑respondent Ms. Couture did not submit a memorandum.
POINTS IN ISSUE
[32]
Could the actions and attitude of the appeal board chairperson at the
hearing create a reasonable apprehension of bias in a right‑minded,
reasonable and informed person?
[33]
In the circumstances, did the absence of a recording of the hearing
infringe the rules of natural justice?
[34]
Was the appeal board chairperson justified in refusing the request for a
second break in the morning close to the noon break?
[35]
Could the chairperson allow the filing as Exhibit M‑15 of the
document [TRANSLATION] “Meeting with P.S.C. in connection with Appeal by
Francine Pelletier” after the applicant had withdrawn from the hearing?
[36]
Did the appeal board make errors of fact and law in concluding that the
evaluation process followed by the panel was consistent with the merit
principle?
STANDARD APPLICABLE TO THIS
JUDICIAL REVIEW
[37]
On the argument that the appeal board did not observe the rules of natural
justice and the chairperson’s actions created a reasonable apprehension of
bias, the Court has a duty to intervene if it finds facts that justify such
conclusions (see Siu M. Lai v. Canada (Attorney General of Canada),
[2001] F.C.J. No. 1088 (F.C.T.D.) at paragraph 13).
[38]
As to errors of fact, the Court has a duty to intervene if it is
satisfied that the appeal board has based its decision on an erroneous finding
of fact that it made in a perverse or capricious manner or without regard for
the material before it (see paragraph 18.1(4)(d) of the Federal
Court Act, R.S.C. 1985, c. F‑7, as amended).
[39]
On points of law decided by a body similar to an appeal board (an
administrative tribunal responsible for labour relations between the federal
Public Service and its employees), it is well established that some restraint
must be shown towards its interpretation of the law (see Pezim v. British
Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557 (QL)).
ANALYSIS AND ANSWERS TO
POINTS IN ISSUE
[40]
While taking into account the fact that the transcript of the recording
of the hearing was not available for the reasons mentioned above, the Court
considers it has what is needed to make the appropriate rulings arising out of
the case at bar. After reviewing the records of the parties, the decision and
reasons of the appeal board, the applicable legislation and regulations and the
precedents cited by the parties and others, the Court has come to the
conclusion that the application for judicial review should be dismissed for the
reasons set out below.
Could the actions and
attitude of the appeal board chairperson at the hearing create a reasonable
apprehension of bias in a right‑minded, reasonable and informed person?
[41]
In answering this question, the Court recalls the comments of
De Grandpré J. in Committee for Justice and Liberty v. Canada
(National Energy Board), [1978] 1 S.C.R. 369, when he wrote:
. . . 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. Would he think that it is more likely than not that Mr. Crowe,
whether consciously or unconsciously, would not decide fairly.”
[42]
The person to answer this question is not the applicant but someone who
is not involved and who, as a right‑minded and informed person, observes
a situation of fact resulting from the interaction between the parties and the
appeal board. That person is familiar with the legislation, regulations and
guide applicable to such a situation. The person’s response takes this body of
knowledge into account and in particular he or she assesses the relationship
between the parties and the appeal board.
[43]
An appeal board is an administrative tribunal which has the powers (see
sections 21, 7.2 and 7.4 of the “Act” and sections 19 to 28 of the
“Regulations”) of the Public Service Employment Act (cited above) and
Part II of the Inquiries Act, R.S.C. 1985, c. I‑II:
In carrying out its functions it is “master of its own procedure”, subject to
legislative and regulatory requirements and the rules of natural justice (see Wiebe
v. Canada, [1992] 2 F.C. 592, [1992] 5 Admin. L.R. (2d) 108
(F.C.A.) at paragraph 6).
[44]
The conclusion arrived at by the Court is that at the start of the
hearing the appeal board chairperson explained the procedure by which the parties
could make their case, but the applicant’s representatives did not wish to
follow it (see paragraph 12 of the reasons for decision). Based on her
experience, Ms. Bilodeau wanted to follow the procedure with which she was
familiar and not that set out by the chairperson. Ms. Bilodeau wished to
cross‑examine the I.R.B.’s representatives and witnesses in the
presentation of the applicant’s evidence, not in the presentation of the
I.R.B.’s reply. Ms. Bilodeau wished to postpone the written allegations to
a time other than that suggested by the chairperson, namely the start of the
presentation of the applicant’s evidence. Ms. Bilodeau and Ms. Krespo
asked questions the relevance of which was not apparent or which were
apparently not related to any of the allegations (see paragraphs 13 and 14
of the reasons for decision). Ms. Krespo and Ms. Bilodeau raised an
objection regarding disclosure at the hearing, when subsections 25(2),
25(3) and 26(4) of the Regulations provide that this should be done prior to
the hearing.
[45]
The appeal board chairperson was [TRANSLATION] “master of her own
procedure” and the parties had to comply with it. The applicant, through her
representatives, did not follow the procedure and this led the chairperson to
intervene several times.
[46]
It is clear that the atmosphere was tense between the applicant’s
representatives and the appeal board chairperson. However, such a hearing is by
its nature an adversary proceeding and the appeal board must ensure that the
procedure is followed and the appropriate decisions made. The latter will not
necessarily please the parties but must be made to ensure that the hearing
proceeds in the interests of the parties and of justice.
[47]
The objection regarding disclosure was taken under reserve and was later
dismissed by the appeal board. The Regulations are clear. Disclosure must be
finalized before the hearing, not during it. However, the Court notes that the
evidence showed that the objection was vague and it was difficult to determine
the information or documents sought (see paragraphs 3 and 27 of the
reasons for decision).
[48]
The applicant proceeded in such a way, through her representatives, that
she prevented herself from making her case by seeking to impose her procedure
at the expense of that set out by the chairperson. The appeal board cannot be
blamed for a situation which the applicant created herself, by not following
the proper procedure to present her evidence.
[49]
Having said that, the Court notes that the appeal board chairperson
asked the applicant to present her evidence:
[TRANSLATION]
She explained to them that from the outset, there is evidence
to be presented, and they had to present that evidence. There is a procedure to
be followed, they had to follow that procedure. (Respondent’s record, examination
on affidavit of John Pisciuneri, page 47).
[50]
Before withdrawing from the hearing, the chairperson explained the
consequences of such a decision to the applicant and that the forum was at her
disposal for the making of her case. Despite this, the applicant left the
hearing room. An appeal board cannot be blamed for preventing her from making
her case when the applicant herself gives up the opportunity of doing so.
[51]
A right‑minded, reasonable and informed person, having such a
situation of fact described, could not conclude that there was a reasonable
apprehension of bias by the appeal board. Such a person’s conclusion would be
that by seeking to impose her procedure contrary to that of the appeal board
chairperson, the applicant herself undermined her own evidence and eliminated
any possibility of eventually establishing the alleged bias by the appeal
board. In the circumstances, such a withdrawal is unjustifiable. The Ontario
Court of Appeal’s remarks regarding the withdrawal of a party from an arbitration,
at paragraph 7 of Corporacion Transnacional de Inversiones, S.A. de
C.V. v. STET International, S.P.A., seem highly appropriate:
It hardly offends our notions of fundamental justice if a
party that had the opportunity to present its case and meet the opposing case
forfeits that opportunity by withdrawing from the arbitration.
It appears that in order to justify
such a withdrawal a party will have to submit exceptional and unusual facts
relating to a fundamental breach of the rule of natural justice. The facts in
the case at bar do not justify such an exception.
In the
circumstances, did the absence of a recording of the hearing infringe the rules
of natural justice?
[52]
The legislative and regulatory provisions setting out the parameters
within which the appeal board must operate create no obligation to record
hearings. It is up to the appeal board to decide whether it will record a
hearing.
[53]
As mentioned earlier, the appeal board chairperson had recording
equipment at her disposal. At Ms. Bilodeau’s request, the appeal board
chairperson checked the recording during the hearing.
[54]
An employee of the Recourse Branch, Mr. Maisonneuve, stated in a
letter dated June 16, 2003, that [TRANSLATION] “in checking the
cassettes, we found it had no sound and the recorder was not working during the
hearing. We apologize. For further information, you can contact me” (see
applicant’s record, vol. 1, page 330).
[55]
That is the explanation given in the record. The evidence did not
indicate whether anyone obtained further information from Mr. Maisonneuve,
as the latter suggested. Additionally, the Court again notes that the
two parties indicated that the evidence as presented in the application
for judicial review is sufficient for a final ruling to be made.
[56]
The legal situation on the taping of hearings and the rules of natural
justice was summarized by the Supreme Court in Canadian Union of Public
Employees, Local 301 v. Montréal (City), [1997] 1 S.C.R. 793, per
L’Heureux‑Dubé J. when she wrote at paragraph 81:
In the absence of a statutory right to a recording, courts
must determine whether the record before it allows it to properly dispose of
the application for appeal or review. If so, the absence of a transcript will
not violate the rules of natural justice. Where the statute does mandate a
recording, however, natural justice may require a transcript.
[57]
In the case at bar there was no legal obligation to record the appeal
board’s hearings, and in addition the parties considered the present record to
be sufficiently complete for a final ruling to be made. The Court agrees. The
fact that the appeal board chairperson intended to record the hearing, but did
not succeed in doing so, does not create a right for the parties to have a
transcript. There was thus no breach of the rules of natural justice.
[58]
As the applicant raised the fact that the I.R.B.’s witnesses were not
sworn in, without making this a substantive argument, the Court notes for
clarification purposes that there was no statutory requirement for witnesses to
be sworn in. The appeal board is “master of its own procedure” and decides
whether witnesses will be sworn.
Was
the appeal board chairperson justified in refusing the request for a second
break in the morning close to the noon break?
[59]
It will be recalled that the appeal board chairperson allowed a fifteen‑minute
break at around 10:30 a.m. At about 11:30 a.m. Ms. Bilodeau
requested a second break, which was denied as it was near the noon break.
Ms. Bilodeau complained of the sharp and authoritarian tone used in
rejecting the request. Several consultations were held on the spot during the
morning between Ms. Krespo and Ms. Bilodeau.
[60]
The Court has already mentioned the fact that the appeal board is the
“master of its own procedure”, subject to the parameters laid down by
legislation and the rules of natural justice. As part of its procedure, the
appeal board has complete discretion to decide when it is appropriate to take a
break, taking into account the progress of the hearing and the time at the
disposal of the parties and the appeal board. The parties’ requirements should
be taken into account as well as those of the interests of justice.
[61]
In the case at bar, the chairperson exercised her discretion by
rejecting the request, while noting that the noon break was imminent. Unless it
can show unfair and unjustified treatment of the parties by the appeal board
and a refusal to allow a break that affects the rules of natural justice, the
Court should not intervene. That was the situation in the case at bar; the Court
has no reason to intervene. The manner and tone of refusal by themselves cannot
justify such intervention. The appeal board chairperson should be able to
impose her procedure, in order to ensure a properly organized hearing which
allows each of the parties to make its case.
Could the chairperson allow
the filing as Exhibit M‑15 of the document [TRANSLATION] “Meeting
with P.S.C. in connection with Appeal by Francine Pelletier” after the
applicant had withdrawn from the hearing?
[62]
This document was prepared by the I.R.B. for the appeal board hearing.
It is a document which sets out the panel’s position in response to the
applicant’s allegations. It is not a document which should have been part of
the disclosure in February 2003, as it simply did not exist at that time.
The document was prepared in April 2003. Reading the document indicates
that it is comparable to a pleading, a memorandum, explaining a party’s
position. The applicant considers that the document should not have been filed
(see paragraph 54 of applicant’s memorandum).
[63]
This document was submitted by Mr. Pisciuneri after the applicant
withdrew from the hearing. If she had been present when it was filed she would
have been entitled to a copy of a document, subject to a ruling on an objection
to the filing if the applicant had wished to make one. The Court considers this
document a summary of the I.R.B.’s position in response to the applicant’s
allegations. Moreover, the chairperson of the appeal board refers to it at
paragraph 37 of the reasons for decision. As she was [TRANSLATION] “master
of her own procedure”, the appeal board chairperson could agree to the filing
of such a document, which on reading appears to be a useful document for a
decision‑maker involved in such a proceeding.
Did the appeal board make
errors of fact and law in concluding that the evaluation process followed by
the panel was consistent with the merit principle?
[64]
The applicant’s argument is as follows: as the appeal board chairperson
did not allow the applicant to present her case and she was led to withdraw
from the hearing as a result, the board did not have all the evidence on which
it could make a ruling justifying the evaluation procedure followed by the
panel as consistent with the merit principle.
[65]
On the evidence, the appeal board adopted the following position in its
analysis:
[TRANSLATION]
Only the allegations relating to questions 12, 14, 15
and 16 and that relating to the evaluation of interpersonal relations were the
subject of a submission by the appellant or her representative at the hearing.
On the remainder, the appeal board only had the text of the allegations
(Exhibit A‑1), as the appellant’s representatives and the appellant
herself, dissatisfied at the way the hearing was proceeding, decided to leave
before the end of the hearing, though without withdrawing the appeal. (See
reasons for decision, paragraph 28)
[66]
The Court has already noted that the applicant herself prevented the
presentation of her case by having her representatives insist on following
their own procedure, not that set out by the appeal board chairperson. Despite
this, the Court notes that the appeal board chairperson had already received
evidence regarding the allegations in questions 12, 14, 15 and 16 (the
expected replies) and the evaluation of interpersonal relations before the
applicant withdrew from the hearing. Further, the Court has already indicated
that the applicant’s decision to withdraw from the hearing created
consequences. Although the appeal board chairperson asked the applicant to
present her case and not withdraw from the hearing, the latter decided to
leave. Such a decision has consequences. The applicant was giving up the
opportunity to present evidence, thus limiting the evidence to be presented to
the appeal board for analysis and the ruling to be made. Additionally, she thus
prevented the tribunal from having a complete perspective of the situation as
presented. The applicant was the author of her own misfortune. She had an
opportunity to be heard. The incomplete presentation of the evidence was caused
by the applicant. The appeal board made the appropriate findings in the
circumstances based on the evidence that was before it at the hearing.
[67]
There are significant risks in withdrawing from a hearing and the applicant
must bear their consequences.
[68]
Recalling the comments by Pratte J.A. of the Court of Appeal in Ratelle
v. Canada (Public Service Commission Appeals Branch), [1975]
F.C.J. No. 910, at paragraph 3, on the limited role of an appeal
board in assessing the merits of a panel, the Court weighed the reasons for
decision in light of the evidence placed before the appeal board.
[69]
The appeal board chairperson examined the allegations, the evidence and
the documents as well as the I.R.B.’s reply, heard the panel chairperson’s
[TRANSLATION] “detailed explanations” and concluded that the evidence did not
support any of the allegations. Consequently, the board came to the conclusion
that the I.R.B. had established that the merit principle was observed. In the
particular circumstances of the case at bar, the reasons and the decision
regarding the merit principle contain no errors of fact or law.
CONCLUSION
[70]
The Court has painstakingly examined the position of each party and
analysed the evidence as presented, including the affidavits, examinations on
affidavit, the appeal board’s record and the latter’s reasons and decision. On
reflection, the applicant’s arguments are not admissible for the reasons
mentioned above and the application for judicial review is dismissed.
[71]
In closing, it is worth noting that the Court understands the importance
of an appeal board and the part it must play in labour relations in the federal
Public Service. Such an appeal board can only carry out its duties if the
parties submit to its authority and its procedure. It is in the interests of
justice for the parties to act accordingly, even in circumstances in which the
decisions are not favourable. It is important that the parties accept the rules
of the game until the end of the process, thus ensuring their position is
irreproachable if a review of the decision occurs.
ORDER
THE COURT:
- dismisses
the application for judicial review pursuant to section 18.l of the Federal
Court Act, R.S.C. 1985, c. F‑7, as amended, from the
decision by the chairperson of the Public Service Commission appeal board,
Janine Kean, on June 4, 2003;
- awards
costs to the co‑respondent, the Attorney General of Canada.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T‑1191‑03
STYLE OF
CAUSE: Francine Pelletier v. The Attorney General of Canada and
Thérèse Couture
PLACE OF
HEARING: Ottawa, Ontario
DATE OF HEARING: September 21, 2004
REASONS FOR ORDER AND ORDER BY: MR. JUSTICE SIMON NOËL
DATED: October 5, 2004
APPEARANCES:
James G.
Cameron APPLICANT
Alexander M.
Gay RESPONDENT - The Attorney General of
Canada
SOLICITORS OF RECORD:
James G.
Cameron APPLICANT
Raven, Allen, Cameron, Ballantyne
& Yazbeck LLP/s.r.l.
Morris
Rosenberg RESPONDENT - The Attorney
General
Deputy
Attorney General of Canada of Canada
Thérèse
Couture RESPONDENT - for herself
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