Date: 19991105
Docket: T-938-98
BETWEEN:
SHIRAZ ISMAIL
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LEMIEUX J.:
[1] Shiraz Ismail, a case officer at the Immigration and Refugee Board (IRB) in Toronto, launched this section 18.1 Federal Court Act judicial review application in respect of a March 25, 1998 decision made by C.J. Brown, constituted as a Public Service Commission Appeal Board (the Appeal Board) pursuant to section 21 of the Public Service Employment Act.
[2] The Appeal Board dismissed Mr. Ismail's appeal from selections made by a Selection Board to a PM-5 position with the IRB as a result of a closed competition.
[3] Mr. Ismail challenges the Appeal Board's decision on three grounds:
| (a) He alleges the chairperson of the Appeal Board was biased against him. In particular, Mr. Ismail said the chairperson was predisposed against him and other appellants exercising their section 21 of the Public Service Employment Act rights because she herself had been vacated from a similar position at the IRB some time ago as a result of an appeal by persons not connected with this case and she was bitter about the process. He further claimed the chairperson maintained her links with the IRB's management. Moreover, Mr. Ismail claimed her conduct at the hearing was proof of bias. She denied his motion for reconsideration not to accept new allegations. She intimidated his representative; she had a hostile attitude towards him and displayed a different attitude towards those persons representing IRB management; |
| (b) He alleges he was denied natural justice because the chairperson did not allow him to add new allegations at the hearing which would establish that the Selection Board of the IRB had not paid due regard to the merit principle; |
| (c) The decision was made without considering all of the evidence and, as a result, in this regard, was capricious. |
ANALYSIS
[4] Mr. Ismail represented himself in these judicial review proceedings; this self-representation caused him problems. Judicial review applications proceed, from an evidentiary point of view, with the certified tribunal record (including transcripts of hearing), applicant's and respondent's affidavits and cross-examination on such affidavits. Relevant material is to be included in the applicant's record pursuant to Rule 309 of the Federal Court Rules, 1998.
[5] In this application, Mr. Ismail was provided with four audio tapes of the Appeal Board hearing on January 29, 1998. Those tapes were not transcribed. He had no evidence of what transpired at the hearing because he did not, in his affidavit, depose to any events at the hearing except in very broad and general terms.
[6] A response affidavit was filed on behalf of the Attorney General for Canada. That affidavit dealt with pre-hearing events including a summary of the disclosure process leading up to the hearing; events at the hearing and post-hearing events including an IRB response to a letter dated January 29, 1998, from the applicant's representative requesting the Appeal Board Chairperson to remove herself from the appeal. That response affidavit, dated June 26, 1998, was not cross-examined by the applicant. Indeed, in August 1998, the applicant sought permission to cross-examine which was refused on August 20, 1998 by Blais J.
[7] The applicant had the onus of establishing the intervention of this Court was justified. In my view, the applicant has failed to discharge that onus.
[8] The applicant bases his case, in large measure, on what he says was inadequate and incomplete disclosure which caused him to file new allegations a month or so before the scheduled hearing and after the time established for filing original allegations; this was the basis for Mr. Ismail's motion for reconsideration at the Appeal Board's hearing. In my view, Mr. Ismail's argument has no merit. A review of the record indicates that the basis for much of the proposed new allegations arose out of material which was disclosed to the applicant well in advance of the deadline for the filing of his original allegations. He and his representative failed to review the disclosed documentation on a timely basis and frame appropriate allegations within the prescribed time. Mr. Ismail conceded as much at the hearing of this application. The record reveals there was one instance of inadequate disclosure related to sick leave records; the chairperson recognized such was the case and permitted, before the hearing, an amended allegation.
[9] On the issue of bias, the applicant simply did not advance any proof. In terms of the hearing, as noted, Mr. Ismail provided no evidence of what happened; the respondent however did and that evidence is uncontradicted and rebuts what Mr. Ismail alleges. Furthermore, I cannot infer bias from the mere fact that the chairperson may have been the subject of an Appeal Board decision in 1992, unfavourable to her.
[10] As to the third ground, Mr. Ismail alleges the Appeal Board chairperson failed to give due weight to the evidence presented and, as a result, the decision was capricious. Again, Mr. Ismail did not provide any analysis of the evidence which was presented to the Appeal Board. As noted, he did not provide any transcript of the proceedings. Moreover, he and his representative walked out of the hearing after the chairperson ruled that it would not be appropriate to consider the applicant's new allegations.
DISPOSITION
[11] For all of these reasons, this judicial review application is dismissed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
NOVEMBER 5, 1999
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