Date: 20090505
Docket: T-528-08
Citation: 2009 FC 453
Ottawa, Ontario, May 5, 2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ELLIOTT
MOGLICA
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
While
Mr. Moglica asks for a broad range of remedies, his plea is essentially for
judicial review of the March 13, 2008 decision of the Director of the
Investigations Branch of the Public Service Commission (Director) not to
investigate his complaint. His complaint relates to his efforts to join the
Public Service of Canada (PSC) and, in particular, to an exam that he had to
pass.
II. BACKGROUND
[2]
Mr.
Moglica is of Albanian ethnic background, a fact only made relevant because he
claims that everything done to him was motivated in whole or in part by this
ethnicity.
[3]
The
Applicant was invited by the Canada Border Services Agency (CBSA) to write a
“knowledge” exam and to attend an interview.
[4]
On
December 18, 2007, the Applicant wrote the exam, which was graded before he was
scheduled to be interviewed. Upon being called in for his interview, he was
informed that he had not attained the pass rate for a key segment of the exam.
Therefore, he had not met an essential criterion for the position and was
eliminated from the pool.
[5]
The
complaint was filed with the Investigations Branch on January 28, 2008, and the
Director’s decision was dated March 13, 2008.
[6]
The
decision was based on the absence of a breach of any of the Public Service
Employment Act, the Public Service Employment Regulations, PSC
policies, or the terms and conditions of delegation.
[7]
The
Director informed the Applicant that the exam and a rating guide are developed
by the manager based on the requirements of the job. The Court takes this to
mean that it was within the authority of the manager to set the exam and
determine how it would be marked based on what the job required.
[8]
The
Director also found that, as regards any claim of discrimination, the proper
relief was a complaint to the Canadian Human Rights Commission. It was noted
that a complaint had been submitted.
[9]
The
issues raised in this judicial review are:
a.
Was
the decision not to investigate reasonable?
b.
Did
the decision adequately represent and consider the relevant issues?
III. ANALYSIS
[10]
The
standard of review for a PSC decision not to investigate has been held to be
reasonableness (Baragar v. Canada (A.G.), 2008 FC 841). For the same
reasons as those outlined by Justice Barnes in that decision, I conclude that the
reasonableness standard is applicable in this case.
[11]
On
the issue of the reasonableness of the decision not to investigate, it can be
considered in two parts: the appropriateness of the complaint and the merits of
the complaint.
[12]
Firstly,
when the Applicant articulated his real concern, the complaint is about
discrimination against him because he is of Albanian background. Whatever the
merits of this claim, it is a matter for the Canadian Human Rights Commission and
not for the PSC. This judicial review could be resolved on that point alone.
[13]
Secondly,
the merits of the complaint on its face are dubious and it is not unreasonable
to refuse to investigate. There are four key components of the complaint which
I will address:
(1) The
fact that the exam was not proctored or that some candidates did not dress as
the Applicant thought suitable is not an issue of procedural fairness. Every
candidate was treated in the same manner and the Applicant was not singled out.
(2) The
fact that the exam was divided into two parts did not make it discriminatory or
unfair. The Applicant failed one essential part of the exam; there was nothing
unreasonable or unfair in not marking the rest of the exam.
(3) The
Applicant’s complaint about the absence of a stated pass mark likewise did not
disadvantage him. He knew he had to get above 50% which he failed to do.
(4) It
is inaccurate to allege that the exam criteria were a verbatim reproduction of
a CBSA document. A review of the Applicant’s exam (a sealed copy of which was
available to the Court) shows that this was not the case.
[14]
While
the Director’s decision letter was not overly extensive and only obliquely
addressed the subject of the exam, given the overall validity of the complaint,
this is understandable and reasonable. There is sufficient evidence in the
record to satisfy me that the Director turned her mind to the relevant
considerations and reached a reasonable conclusion.
[15]
On
the issue of the adequacy of the representation and consideration of the issues,
the Applicant tended to focus on submitting that the Director was selective
with the facts on the basis of some type of conspiracy.
[16]
While
the decision letter was cursory on some subjects, it set out the Applicant’s allegations.
The reasonableness of the conclusions on those allegations has already been
addressed in this decision.
[17]
There
is no basis for attacking the Director’s decision. The Court doubts that this
conclusion can or will ever be accepted by the Applicant given his unique
perspective on his many troubles in securing not only this job but any other
job in the federal public service.
IV. CONCLUSION
[18]
For
these reasons, this judicial review is dismissed with costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed with costs.
“Michael
L. Phelan”
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