Date: 20111108
Docket: T-674-09
Citation: 2011
FC 1278
Ottawa, Ontario, November 8, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
PAUL ALEXANDER and
SUPRIYA RAVE
|
|
|
|
Applicants
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Paul Alexander and Supriya Rave (the applicants)
seek judicial review pursuant to section 18.1 of the Federal Courts Act,
RSC 1985, c F-7 of a decision of the Public Service Staffing Tribunal (the
tribunal) dated December 19, 2008. The tribunal dismissed the applicants’
complaint of abuse of authority in an internal appointment process.
[2]
The
applicants request:
1. an order quashing the
decision of the tribunal, dated December 19, 2008, and remitting the matter for
reconsideration by a different tribunal member and making the following
directions:
(a) that the tribunal
issue such orders as are required to secure and have produced to the applicants
all evidence located at the former workplace of the applicant, Paul Alexander, that
is relevant to the complaint;
(b) that the tribunal
must consider all evidence presented by the applicants;
(c) that the tribunal
must allow the applicants to examine all the witnesses they wish to examine.
2. an
order sanctioning the tribunal member who presided over the original hearing of
the applicants’ complaint and requiring her to formally apologize to the
applicants and to attend sensitivity training; and
3. costs
of this application.
[3]
The
respondent requests an order dismissing this application.
Background
[4]
On
August 4, 2006, a job opportunity advertisement was posted on Publiservice
to staff the position of manager, Ontario Operations Centre (SG SRE-07) at
Health Canada in Scarborough, Ontario. Mr. Jim Daskalopoulos
was eventually appointed for this position.
[5]
The
applicant, Paul Alexander and the applicant, Supriya Rave, both applied for
this position but were eliminated at the screening stage of the appointment
process because they did not meet the experience criteria.
[6]
On
November 15 and 22, 2006, Mr. Alexander and Ms. Rave, respectively, contacted
the tribunal to complain about the staffing process. The applicants alleged
that there was abuse of authority in the staffing process and that racism and
nepotism were factors in the appointment of Mr. Daskalopoulos.
[7]
Mr.
Alexander was on sick leave from his employer from December 22, 2006 to January
17, 2007. After that date, it appears that he was on an unpaid leave of absence
which he refers to as a “lockout”. At some point thereafter, his employment was
terminated.
[8]
In
March 2007, the applicants’ formal complaints under section 77 of the Public Service Employment
Act, SC 2003, c 22, ss 12, 13 (PSEA) were
submitted to the tribunal. Both applicants received the tribunal’s standard
form letter acknowledging receipt of their complaints. The letters referred the
applicants to the tribunal’s Procedural Guide, which was developed to assist
parties involved in proceedings before the tribunal.
[9]
Throughout the
complaint process, the applicants sent the tribunal numerous emails.
Specifically, in February
2007, Mr. Alexander sent several emails to the tribunal requesting that it
order the respondent to disclose information about Mr. Daskalopoulos and about
the staffing process. On February 23, 2007, both applicants brought motions to
compel this disclosure. Around the same time, Mr. Alexander asked the tribunal
to expand his complaint and to investigate all staffing action in the Ontario region of Health Canada from April 2004 through
to the time of the request.
[10]
On
March 12, 2007, the tribunal ordered the respondent to disclose information
about Mr. Daskalopoulos’ employment history. The information was disclosed on
March 15, 2007. Both applicants responded that the disclosure was incomplete.
[11]
In
May 2007, the tribunal instructed all parties to stop sending emails on the
merits of the complaints since an opportunity to cross-examine witnesses and to
submit their arguments and case law would be available at the hearing.
[12]
In
August 2007, the respondent requested the consolidation of Mr. Alexander’s and
Ms. Rave’s complaints, as well as that of a third complainant, on the basis
that they concerned the same appointment process. Both Mr. Alexander and Ms.
Rave responded that consolidation would prejudice their complaints. On January
18, 2008, the tribunal ordered consolidation of Mr. Alexander’s and Ms. Rave’s
complaints, but declined to consolidate the third complaint.
[13]
In
early 2008, Mr. Alexander repeatedly attempted to compel the respondent to
produce documents and emails left at his workplace when he was “locked out”.
[14]
A
pre-hearing conference took place on April 25, 2008. On April 29, 2008, the tribunal
issued a summary of the pre-hearing conference. It ordered the respondent to
provide Mr. Alexander with specific documents and, if the documents could not
be located, to attempt to retrieve them with the assistance of the IT team. The
respondent was also ordered to provide Mr. Alexander with emails between Mr.
Alexander and three other people dealing with staffing. The tribunal also
reproduced the two lists of witnesses to be introduced by the applicants and
the respondent.
[15]
The
applicants repeatedly emailed the tribunal to protest the fact that several witnesses
who they wished to call were moved from their witness list to that of the
respondent.
[16]
On
May 15, 2008, the tribunal issued a letter indicating that moving witnesses was
a common practice at the tribunal. It further refused to issue summonses to the
applicants because the respondent would be calling the witnesses that the
applicants sought to summon. The tribunal refused to order further disclosure,
noting that it could not order the respondent to produce what it did not have.
The tribunal also explained the procedure for introducing documents at the
hearing, as the applicants were by that time refusing to cooperate on the
pre-hearing exchange of evidence.
[17]
The
hearing commenced on May 27, 2008. The applicants filed six motions at the
beginning of the hearing. Some of these issues had already been addressed by
the tribunal through letter decisions. The motions dealt with the three
witnesses who had been moved to the respondent’s witness list, the summonses
that the applicants wanted to have issued and Mr. Alexander’s request for his
emails and documents left at his workplace.
[18]
The tribunal heard submissions by the parties
and ruled on the motions, maintaining all its previous decisions rendered in
various letter decisions except the issue of moving the witnesses. The tribunal
states that it moved several witnesses (Mr. Sangster, Mr. Charron, Mr. Neil and
Ms. Lui) from the respondent’s witness list back to the applicants’ witness
list.
[19]
The
applicants moved to stay the hearing. The tribunal heard submissions on this
motion and was not convinced that there was prejudice to the parties that
warranted a stay of proceedings. The tribunal denied the motion and explained
to the applicants that they would have the opportunity to apply for judicial
review once it reached a final decision. The applicants were not prepared to
present evidence and the hearing was adjourned for the day.
[20]
Before
the hearing recommenced the following day, the applicants informed the tribunal
that they would not be attending the hearing because they wished to seek
judicial review of what they saw as “procedural inconsistencies.” The tribunal
attempted to contact the applicants by telephone and email and Mr. Alexander
responded to the tribunal’s email.
[21]
The
hearing proceeded absent the applicants on May 28, 2008.
Tribunal’s Decision
[22]
At
no time during the hearing was a court reporter or an official electronic
recording device present to record the hearing or the evidence. As such, no
transcript of the hearing is available.
[23]
The tribunal
continued the hearing in the absence of the applicants pursuant to section 29
of Public Service
Staffing Tribunal Regulations, SOR/2006-6,
(the Regulations). The tribunal was satisfied that the applicants were notified
and aware that the hearing would continue in their absence.
[24]
As
the applicants were not present, they did not present any evidence or call any
witnesses. The respondent called two witnesses, Mr. Sangster and Ms. Lui, and
made submissions. The Public Service Commission also made submissions.
[25]
The
tribunal considered two issues: whether the respondent abused its authority by
demonstrating personal favouritism toward the successful candidate by
improperly screening the applicants out of the appointment process; and whether
the respondent abused its authority by discriminating against the applicants.
[26]
The
tribunal found that the party alleging abuse of authority bears the burden of
proof.
[27]
The tribunal
assessed the evidence presented by the respondent. It considered Mr. Sangster’s
evidence regarding the steps followed to appoint Mr. Daskalopoulos and Ms.
Lui’s evidence regarding the steps the assessment board took to assess merit
criteria in this advertised position.
[28]
The tribunal
held that candidates must ensure that they clearly demonstrate on their
application that they meet all the essential qualifications for the position. Based
on the evidence before it, the tribunal found that the applicants did not meet
the experience criteria, which resulted in them being eliminated at the
screening stage of the process. The tribunal found that the candidates were
assessed only on the information found in their applications. The screening
process was anonymous and the applicants had the opportunity to provide
clarifications to the screening board with respect to the experience noted in
their curriculum vitae. The tribunal also found that the applicants presented
no evidence to support their allegations that they were not appointed due to
discrimination as visible minorities.
[29]
For
these reasons, the tribunal found that there was no evidence that the
applicants were improperly screened and concluded that there was no abuse of
authority.
Issues
[30]
The
issues are as follows:
1. What is the appropriate
standard of review?
2. Did the tribunal breach
procedural fairness by consolidating the complaints?
3. Did the tribunal breach
procedural fairness by refusing to order further disclosure?
4. Did
the tribunal breach procedural fairness by moving witnesses from the
applicants’ witness list to the respondent’s witness list, or by refusing to
issue subpoenas?
4. Did
the tribunal exhibit a reasonable apprehension of bias?
5. Was
the tribunal’s decision not to expand the complaint correct?
6. Was the tribunal’s
decision reasonable?
Applicants’ Written Submissions
[31]
The applicants submit that the tribunal breached
procedural fairness by consolidating their complaints. The applicants argue
that their complaints were substantially different and that they were
prejudiced by having to collaborate before the tribunal.
[32]
The applicants allege that Mr. Alexander left
several files and emails at his workplace when he was “locked out”. The
applicants claim that the production from the respondent was incomplete and
that the tribunal breached procedural fairness when it refused to order further
disclosure.
[33]
The applicants further submit that the tribunal
breached procedural fairness when it removed several witnesses from the
applicants’ witness list and placed them on that of the respondent’s witness
list. The applicants argue that the tribunal colluded with Health Canada because it only moved the witnesses
after questioning the applicants as to what they intended to ask their
witnesses in examination. The applicants argue that the move restricted their
ability to examine the witnesses.
[34]
The applicants also argue that the tribunal
unjustly denied them summonses for the witnesses they sought to examine. The tribunal
did not explain its refusal to issue summonses on the renewed request following
Health Canada’s allegedly
incomplete disclosure.
[35]
The
applicants submit that the tribunal was biased and discriminated against them
because of their visible minority status. The applicants allege that the
tribunal chairperson acted in a racist manner and was verbally abusive toward
them.
[36]
The
applicants further submit that it was unreasonable for the tribunal to refuse
to expand the complaint to consider the issues of racism and discrimination in
the workplace.
[37]
Finally, the applicants submit that the decision
of the tribunal is unreasonable.They argue that before walking out after the
first day of the hearing, they had presented considerable evidence to the tribunal
and it was therefore unreasonable for the tribunal to find that they had
adduced no evidence.
Respondent’s Written Submissions
[38]
The respondent submits that the tribunal acted
reasonably when it continued the hearing in the absence of the applicants
pursuant to section 29 of the Regulations. The tribunal contacted the
applicants by email to inform them of the consequences of their refusal to
attend the second day of the hearing. The applicants acknowledged receipt of
this email.
[39]
The respondent submits that the threshold to
find abuse of authority in the establishment and assessment of essential
qualifications is high. The respondent argues that the burden was on the
applicants to establish that Mr. Daskalopoulos’ appointment was made in bad
faith and was influenced by personal favouritism or a similar consideration.
The respondent further submits that an allegation of abuse of authority is a
very serious matter and requires more than merely stating a perceived
injustice.
[40]
Under the PSEA, a deputy head is given
considerable discretion on staffing matters and in making an appointment.
Section 36 gives the Public Service Commission and its delegate a similar or
even wider degree to determine whether a person meets the qualifications of a
position.
[41]
The respondent submits that the tribunal
reasonably concluded that the applicants had failed to discharge their burden
of showing that Mr. Daskalopoulos did not meet the merit criteria or that the
appointment process was not fair. There was ample and sufficient evidence
before the tribunal as to the assessment of the appointee’s experience and how
that assessment accorded with the qualification standards for the position. The
witnesses were found to be credible and the applicants adduced no evidence to
contradict them.
Analysis and Decision
[42]
Issue 1
What is the appropriate standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue, the
reviewing court may adopt that standard (see Dunsmuir v New Brunswick 2008
SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[43]
The majority of the issues raised by the
applicants involve procedural fairness and are reviewable on a
correctness standard (see Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 43).
[44]
The final determination by the tribunal is a
question of mixed fact and law, as discussed at length by Mr. Justice Michel Shore
in Lavigne v Canada (Deputy Minister of Justice), 2009 FC
684, 352 FTR
269 (Eng). As such, the ultimate conclusions of the tribunal will
be reviewed on the reasonableness standard.
[45]
Issue 2
Did the tribunal breach
procedural fairness by consolidating the complaints?
Pursuant to section 109 of the PSEA and section 8 of the
Regulations, the tribunal was entitled to consolidate any proceedings to ensure
the expeditious resolution of complaints. The consolidation of the applicants’
complaints did not breach procedural fairness as they were based on the same
internal appointment and factual background and were substantially similar.
[46] Issue 3
Did the tribunal breach procedural fairness by refusing to order
further disclosure?
The tribunal is empowered,
pursuant to paragraph 99(1)(e) of the PSEA, to compel any person to produce
documents relevant to the proceeding.
[47]
Following the pre-hearing conference of April
25, 2008, the tribunal ordered the respondent to produce the following documents:
·
documents/emails exchanged between Ms. Lui and
Mr. Alexander;
·
documents/emails exchanged between Mr. Sangster
and Mr. Nouvet and Mr. Alexander; and
·
notes and documents/letters between Mr.
Rosenberg and Mr. Alexander.
[48]
The tribunal ordered that if the above documents
could not be located, the respondent was to attempt to retrieve them with the
assistance of the IT team and to provide copies to Mr. Alexander.
[49]
Further, the tribunal ordered that the
respondent was to attempt to retrieve and provide copies of the emails dealing
with staffing between Mr. Alexander and:
·
Ms. Harty in early 2006;
·
Mr. Charron from July 18, 2005 forward; and
·
Mr. Dawes from July 18, 2005 forward.
[50]
The respondent notified the tribunal and the
applicants through Angela Charlton that the three packages of documents that
Mr. Alexander stated were at his desk at work could not be located. The
respondent did provide, however, copies of all email correspondence related to
staffing between Mr. Alexander and:
·
Ms. Harty;
·
Mr. Dawes;
·
Mr. Charron;
·
Ms. Lui;
·
Mr. Sangster;
·
Mr. Nouvet; and
·
Mr. Rosenberg.
[51]
The applicants requested further disclosure but the tribunal
indicated through a letter decision that it could not order a party to produce
documents that no longer exist or that are not in its possession.
[52]
The respondent appears to have complied with the order of the tribunal
to the best of its ability and there was no breach of procedural fairness in
the tribunal’s refusal to order further production of documents which it had
already ordered produced.
[53]
Issue 4
Did the tribunal
breach procedural fairness by moving witnesses from the applicants’ witness
list to the respondent’s witness list or by refusing to issue subpoenas?
Parliament granted
the tribunal extensive authority to govern its own process. This authority is
explicitly found in section 27 of the Regulations, which states that “[t]he Tribunal is
master of the proceedings and may determine the manner and order of the
presentation of evidence and arguments at the hearing.” Further, the tribunal
has all the powers of a superior court associated with compelling attendance,
examining witnesses and ordering
the production of documents. These powers are found in section 99 of the PSEA
and in the Regulations.
[54]
Given
the control the tribunal has over its procedures, including that of calling and
summoning witnesses, this Court owes deference to the tribunal’s procedural
decisions. The Supreme Court held in Council of Canadians with Disabilities
v VIA Rail Canada Inc, 2007 SCC 15, [2007] 1 S.C.R. 650
at paragraph 231, that:
Considerable deference is owed to procedural
rulings made by a tribunal with the authority to control its own process. The
determination of the scope and content of a duty to act fairly is
circumstance-specific, and may well depend on factors within the expertise and
knowledge of the tribunal, including the nature of the statutory scheme and the
expectations and practices of the Agency's constituencies. Any assessment of
what procedures the duty of fairness requires in a given proceeding should
"take into account and respect the choices of procedure made by the agency
itself, particularly when the statute leaves to the decision-maker the ability
to choose its own procedures, or when the agency has an expertise in
determining what procedures are appropriate in the circumstances": Baker
v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817
(S.C.C.), at para. 27, citing
D. J. M. Brown and J. M. Evans, Judicial Review of
Administrative Action in Canada (loose-leaf), at pp. 7-66 to 7-70. …
[55]
The applicants’ submissions contradict the tribunal
decision with respect to what occurred with the witness lists at the hearing.
The applicants state in their notice of application and in their affidavit that
the tribunal removed witnesses from their witness list and placed those
witnesses on the witness list of the respondent on the day of the hearing.
[56]
However, the removal of the witnesses from the applicants’
witness list actually occurred in April 2008 at the pre-hearing conference. The
April 29, 2008 letter from the tribunal indicates that the witness lists were
set following the pre-hearing conference of April 25, 2008. The letter states
that the witnesses, Mr. Charron, Ms. Lui, Mr. Neil and Mr. Sangster would be
called by the respondent. The applicants were aware of this move and wrote
numerous emails to the tribunal expressing their concern regarding the fact
that the witnesses they wished to call would now be called by the respondent.
[57]
The tribunal decision noted that the applicants raised this
issue again in a preliminary motion on the day of the hearing. The decision
states that, given that the applicants were adamant that the witnesses testify
on their behalf, the tribunal would consider Mr. Charron, Ms. Lui, Mr. Neil and
Mr. Sangster to be the applicants’ witnesses. The tribunal notes that it
explained to the applicants the difference between examination-in-chief and
cross-examination and what types of questions the applicants would be able to
ask the witnesses.
[58]
I prefer the version of the events set out in the tribunal
decision, as the applicants’ statements of events in the notice of application
and affidavit contradict the April 29, 2008 letter that the applicants received
and their subsequent emails opposing that letter.
[59]
If any procedural unfairness resulted from the initial
removal of the witnesses from the applicants’ witness list, it was largely
cured by the re-instatement of the witnesses to the applicants’ witness list on
the day of the hearing. In addition, any determination from this Court about
how this moving of witnesses affected the applicants’ ability to present their
case or be heard would be speculative given that the applicants chose not to
participate in the hearing. Further, the applicants have not made any
submissions about how the moving of witnesses actually rendered the proceeding
unfair.
[60]
The tribunal did not address the issue raised by the
applicants concerning summonses at the hearing. However, this issue was clearly
addressed in the letter decision dated May 15, 2008 where the tribunal
indicated that the summons for Mr. Charron or Mr. Sangster were not necessary
because these witnesses were to be called by the respondent.
[61]
In summary, the applicants have failed to demonstrate a
breach of procedural fairness in the tribunal’s handling of the witnesses or
requests for summonses.
[62]
Issue 5
Did
the tribunal exhibit a reasonable apprehension of bias?
It is an established
principle that administrative tribunals must be and appear to be unbiased in
conducting hearings and rendering their decisions (see for example Newfoundland Telephone Co v
Newfoundland (Board of
Commissioners of Public Utilities), [1992] 1 S.C.R. 623 at
page 636).
[63]
The applicants submit on numerous occasions that
the tribunal member was “racist”, “humiliating”, “aggressive”, “prejudicial”
and “discriminatory”, among other similarly serious allegations.
[64]
The Supreme Court held in Committee
for Justice & Liberty v Canada (National Energy Board) (1976),
[1978] 1 S.C.R. 369 at page 394, that the test for whether there is a reasonable
apprehension of bias is “what would an informed person, viewing the matter
realistically and practically — and having thought the matter through —
conclude”. The Supreme Court continued to note in
that case that “[t]he grounds for this apprehension must, however, be
substantial…” (see Committee for Justice above, at pages 394 and 395).
[65]
The onus of showing a reasonable apprehension of bias lies
with the person alleging it and depends entirely on the facts (see R v S (RDS),
[1997] 3 S.C.R. 484, [1997] SCJ No. 84 (QL) at paragraph 114).
[66]
There is no evidence before this Court of any
behaviour of the tribunal member that would meet the established threshold for
demonstrating bias.
[67]
Issue 6
Was the tribunal’s
decision not to expand the complaint correct?
The applicants submit that
the tribunal unreasonably ignored the issues of systemic racism and
discrimination within the Ontario region at Health Canada.
[68]
The applicants submitted a complaint pursuant to
section 77 of the PSEA. Section 77 deals with internal appointments and any
review pursuant to this section is confined to issues about the fairness of the
specific appointment process. The tribunal is empowered to interpret and apply
the Canadian Human Rights Act, RS 1985, c H-6, in complaints brought
under section 77. This includes issues of discrimination based on race or
ethnic origin. However, such consideration is confined to the tribunal’s
authority to consider specific appointment processes pursuant to section 77 and
does not include the broad examination sought by the applicants. As such, the tribunal
considered the issue of whether the respondent discriminated against the applicants
in the specific appointment of Mr. Daskalopoulos.
[69]
In the course of preparing for the tribunal
hearing, the applicants sought to enlarge their complaint and have the tribunal
examine all staffing appointments in the Ontario region of Health Canada from April 2004 to the date of the hearing. The tribunal did not
allow the applicants to expand their complaint to include these issues of
systemic racism and discrimination. This decision was correct as these issues
are beyond the tribunal’s mandate.
[70]
The applicants also submitted that the
respondent improperly gave acting positions to the successful candidate on
previous occasions. The applicants particularly referred to paragraph 43 of the
decision. I would note that the propriety of these acting positions are not properly
the subject matter of this application for judicial review.
[71]
There was no error is confining the complaint to
an examination of the individual appointment process for the position of manager,
Ontario Operations Centre at Health Canada in Scarborough, Ontario.
[72]
Issue 7
Was the tribunal’s decision reasonable?
The applicants made no submissions,
presented no evidence and called no witnesses before the tribunal, despite
bearing the burden of proving their complaint. Although the applicants sent the
tribunal over one hundred emails prior to the date of the hearing, these emails
were never formally entered into the record and can therefore not be considered
evidence.
[73]
The
tribunal based its decision on the evidence before it, which was entirely presented
by the respondent. The tribunal decision assessed the procedure in creating the
essential qualifications for the position as well as the decision to eliminate
the applicants’ candidacy at the screening stage.
[74]
Given
that the respondent’s evidence was not contradicted, the tribunal’s decision
was reasonable.
[75]
I
would therefore dismiss the application for judicial review and there shall be
no order for costs.
JUDGMENT
IT IS ORDERED that the application for judicial
review is dismissed and there shall be no order as to costs.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Legislation
Federal Courts Act (RSC 1985, c F-7)
|
18.1 (1) An application for
judicial review may be made by the Attorney General of Canada or by anyone
directly affected by the matter in respect of which relief is sought.
|
18.1 (1) Une
demande de contrôle judiciaire peut être présentée par le procureur général
du Canada ou par quiconque est directement touché par l’objet de la demande.
|
Public Service Employment Act (SC 2003, c 22, ss 12, 13)
|
77. (1) When the Commission has
made or proposed an appointment in an internal appointment process, a person
in the area of recourse referred to in subsection (2) may — in the manner and
within the period provided by the Tribunal’s regulations — make a complaint
to the Tribunal that he or she was not appointed or proposed for appointment
by reason of
(a) an
abuse of authority by the Commission or the deputy head in the exercise of
its or his or her authority under subsection 30(2);
(b) an
abuse of authority by the Commission in choosing between an advertised and a
non-advertised internal appointment process; or
(c) the
failure of the Commission to assess the complainant in the official language
of his or her choice as required by subsection 37(1).
(2) For
the purposes of subsection (1), a person is in the area of recourse if the
person is
(a) an
unsuccessful candidate in the area of selection determined under section 34,
in the case of an advertised internal appointment process; and
(b) any
person in the area of selection determined under section 34, in the case of a
non-advertised internal appointment process.
(3) The
Tribunal may not consider an allegation that fraud occurred in an appointment
process or that an appointment or proposed appointment was not free from
political influence.
78. Where
a complaint raises an issue involving the interpretation or application of
the Canadian Human Rights Act, the complainant shall, in accordance
with the regulations of the Tribunal, notify the Canadian Human Rights
Commission of the issue.
80. In
considering whether a complaint under section 77 is substantiated, the Tribunal
may interpret and apply the Canadian Human Rights Act, other than its
provisions relating to the right to equal pay for work of equal value.
99. (1) The Tribunal has, in
relation to a complaint, the power to
(a) summon
and enforce the attendance of witnesses and compel them to give oral or
written evidence on oath in the same manner and to the same extent as a
superior court of record;
(b) order
that a hearing be conducted using any means of telecommunication that permits
all persons participating to communicate adequately with each other;
(c) administer
oaths and solemn affirmations;
(d) accept
any evidence, whether admissible in a court of law or not;
(e) compel,
at any stage of a proceeding, any person to produce any documents and things
that may be relevant; and
(f) subject
to any limitations that the Governor in Council may establish in the interests
of defence or security, enter any premises of an employer where work is being
or has been done by employees, inspect and view any work, material,
machinery, appliances or articles in the premises and require any person in
the premises to answer all proper questions relating to the complaint.
109. The
Tribunal may make regulations respecting
(a) the
manner in which and the time within which a complaint may be made under
subsection 65(1) or section 74, 77 or 83;
(b) the
procedure for the hearing of complaints by the Tribunal;
(c) the
time within which, and the persons to whom, notices and other documents must
be given in relation to complaints and when the notices are deemed to have
been sent, given or received;
(d) the
manner of giving notice of an issue to the Canadian Human Rights Commission
under subsection 65(5) or section 78; and
(e) the
disclosure of information obtained in the course of an appointment process or
a complaint proceeding under this Act.
|
77. (1) Lorsque
la Commission a fait une proposition de nomination ou une nomination dans le
cadre d’un processus de nomination interne, la personne qui est dans la zone
de recours visée au paragraphe (2) peut, selon les modalités et dans le délai
fixés par règlement du Tribunal, présenter à celui-ci une plainte selon
laquelle elle n’a pas été nommée ou fait l’objet d’une proposition de
nomination pour l’une ou l’autre des raisons suivantes :
a) abus
de pouvoir de la part de la Commission ou de l’administrateur général dans
l’exercice de leurs attributions respectives au titre du paragraphe 30(2);
b) abus
de pouvoir de la part de la Commission du fait qu’elle a choisi un processus
de nomination interne annoncé ou non annoncé, selon le cas;
c) omission
de la part de la Commission d’évaluer le plaignant dans la langue officielle
de son choix, en contravention du paragraphe 37(1).
(2) Pour
l’application du paragraphe (1), une personne est dans la zone de recours
si :
a) dans
le cas d’un processus de nomination interne annoncé, elle est un candidat non
reçu et est dans la zone de sélection définie en vertu de l’article 34;
b) dans
le cas d’un processus de nomination interne non annoncé, elle est dans la
zone de sélection définie en vertu de l’article 34.
(3) Le
Tribunal ne peut entendre les allégations portant qu’il y a eu fraude dans le
processus de nomination ou que la nomination ou la proposition de nomination
a résulté de l’exercice d’une influence politique.
78. Le plaignant qui
soulève une question liée à l’interprétation ou à l’application de la Loi
canadienne sur les droits de la personne en donne avis à la Commission
canadienne des droits de la personne conformément aux règlements du Tribunal.
80. Lorsqu’il décide si la
plainte est fondée, le Tribunal peut interpréter et appliquer la Loi
canadienne sur les droits de la personne, sauf les dispositions.
99. (1) Le
Tribunal peut, pour l’instruction d’une plainte :
a) de
la même façon et dans la même mesure qu’une cour supérieure d’archives,
convoquer des témoins et les contraindre à comparaître et à faire sous
serment des dépositions orales ou écrites;
b) ordonner
l’utilisation de tout moyen de communication permettant à tous les
participants à une audience de communiquer adéquatement entre eux;
c) faire
prêter serment et recevoir les affirmations solennelles;
d) accepter
des éléments de preuve, qu’ils soient admissibles ou non en justice;
e) obliger,
en tout état de cause, toute personne à produire les documents ou pièces qui
peuvent être liés à toute question dont il est saisi;
f) sous
réserve des restrictions que le gouverneur en conseil peut imposer en matière
de défense ou de sécurité, pénétrer dans des locaux ou sur des terrains de
l’employeur où des fonctionnaires exécutent ou ont exécuté un travail,
procéder à l’examen de tout ouvrage, matériau, outillage, appareil ou objet
s’y trouvant, ainsi qu’à celui du travail effectué dans ces lieux, et obliger
quiconque à répondre aux questions qu’il estime utile de lui poser
relativement à la plainte.
109. Le Tribunal peut, par
règlement, régir :
a) les
modalités et le délai de présentation des plaintes présentées en vertu du
paragraphe 65(1) ou des articles 74, 77 ou 83;
b) la
procédure à suivre pour l’audition des plaintes;
c) le
délai d’envoi des avis et autres documents au titre des plaintes, ainsi que
leurs destinataires et la date où ces avis sont réputés avoir été donnés et
reçus;
d) les
modalités applicables aux avis donnés à la Commission canadienne des droits
de la personne en application du paragraphe 65(5) ou de l’article 78;
e) la
communication de renseignements obtenus dans le cadre de la présente loi au
cours d’un processus de nomination ou de l’instruction de plaintes.
|
Public
Service Staffing Tribunal Regulations (SOR/2006-6)
|
8. To ensure the expeditious resolution
of complaints, the Tribunal may direct that proceedings be consolidated and
may issue directions in respect of the conduct of the consolidated
proceedings.
20. (1) If
the complainant raises an issue involving the interpretation or application
of the Canadian Human Rights
Act in a complaint made under subsection 65(1) or 77(1) of the Act, the
notice that the complainant is required by subsection 65(5) or section 78 of
the Act to give to the Canadian Human Rights Commission must be in writing
and must include
(a) a
copy of the complaint;
(b) the
complainant’s name and the mailing address or electronic mail address that is
to be used for sending documents to the complainant;
(c) the
name, address, telephone number, fax number and electronic mail address of
the complainant’s authorized representative, if any;
(d) a
description of the issue involving the interpretation or the application of the
Canadian Human Rights Act and of the alleged discriminatory practice
or policy;
(e) the
prohibited ground of discrimination involved;
(f) the
corrective action sought;
(g) the
signature of the complainant or the complainant’s authorized representative;
and
(h) the
date of the notice.
23. (1) The Tribunal may, on
request, permit the complainant to amend an allegation or provide a new
allegation if the amendment or new allegation results from information
obtained that could not reasonably have been obtained before the complainant
submitted his or her original allegations.
(2) The
request must be in writing and must include
(a) the
name, address, telephone number, fax number and electronic mail address of
the complainant;
(b) the
name, address, telephone number, fax number and electronic mail address of the
complainant’s authorized representative, if any;
(c) the
Tribunal’s file number for the complaint;
(d) a
detailed explanation as to why the complainant did not include the allegation
with his or her original allegations or as to why the complainant needs to
amend his or her allegations, as the case may be;
(e) the
new or amended allegation;
(f) the
signature of the complainant or the complainant’s authorized representative;
and
(g) the
date of the request.
27. The
Tribunal is master of the proceedings and may determine the manner and order
of the presentation of evidence and arguments at the hearing.
29. If a
party, an intervenor or the Canadian Human Rights Commission, if it is a
participant, does not appear at the hearing of a complaint or at any
continuance of the hearing and the Tribunal is satisfied that notice of the
hearing was sent to that party, intervenor or participant, the Tribunal may
proceed with the hearing and dispose of the complaint without further notice.
|
8. Pour
assurer la résolution rapide des plaintes, le Tribunal peut ordonner la
jonction d’instances présentées devant lui et donner des directives quant au
déroulement de la nouvelle instance.
20. (1) Si le
plaignant soulève une question liée à l’interprétation ou à l’application de
la Loi canadienne
sur les droits de la personne dans une plainte présentée en vertu
des paragraphes 65(1) ou 77(1) de la Loi, l’avis prévu au paragraphe 65(5) ou
à l’article 78, selon le cas, est transmis par écrit à la Commission
canadienne des droits de la personne et comporte les éléments suivants :
a) une
copie de la plainte;
b) le nom
du plaignant et l’adresse postale ou électronique à laquelle les documents
doivent être transmis;
c) le
cas échéant, les nom, adresse, numéros de téléphone et de télécopieur et
adresse électronique du représentant du plaignant;
d) une
description de la question liée à l’interprétation ou à l’application de la Loi
canadienne sur les droits de la personne et de la pratique ou politique
discriminatoire alléguée;
e) le
motif de distinction illicite visé;
f) les
mesures correctives à prendre;
g) la
signature du plaignant ou de son représentant;
h) la
date de l’avis.
23. (1) Le
Tribunal peut, sur demande, autoriser le plaignant à modifier une allégation
ou à en présenter une nouvelle allégation, si la modification ou la nouvelle
allégation résulte d’une information qui n’aurait pas pu être raisonnablement
obtenue avant que le plaignant ne présente ses allégations.
(2) La
demande est présentée par écrit et comporte les éléments suivants :
a) les
nom, adresse, numéros de téléphone et de télécopieur et adresse électronique
du plaignant;
b) le cas
échéant, les nom, adresse, numéros de téléphone et de télécopieur et adresse
électronique du représentant du plaignant;
c) le
numéro de dossier que le Tribunal a attribué à la plainte faisant l’objet de
la demande;
d) un
énoncé détaillé des raisons pour lesquelles le plaignant n’a pas, au départ,
inclus l’allégation ou pour lesquelles il a besoin de modifier ses
allégations, selon le cas;
e) l’allégation
nouvelle ou modifiée;
f) la
signature du plaignant ou de son représentant;
g) la
date de la demande.
27. Le Tribunal est maître
de la procédure. Il peut
décider de l’ordre et de la manière dont la preuve et les plaidoiries seront
présentées.
29. Si une partie, un
intervenant ou la Commission canadienne des droits de la personne, si
celle-ci a le statut de participant, omet de comparaître à l’audience ou à
toute continuation de celle-ci, le Tribunal peut, s’il est convaincu que
l’avis d’audition a bien été donné, tenir l’audience et statuer sur la
plainte sans autre avis.
|
Email this Content