Date: 20081121
Docket: T-2152-06
Citation: 2008 FC 1298
Ottawa, Ontario, November 21, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
CHRISTINE
NG
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to section 18.1 of the Federal Courts Act,
R.S.C. 1985, c. F-7, for judicial review of the decision of a decision review officer
under the Canada Revenue Agency’s (CRA) staffing recourse program denying
Christine Ng’s (the applicant) request for review of two knowledge examinations
taken during an employment competition with the CRA.
[2]
The
applicant seeks an order quashing the decision of the decision review officer
(the officer), and remitting the matter back for determination in accordance
with the reasons of this Court.
Background
[3]
The
applicant was a candidate for a number of auditor positions at the CRA and
wrote two examinations as a result of her candidacy. Her candidacy did not
advance to the final stage of the selection process on the basis of her
examination results. She has applied for judicial review of the decision review
officer’s decision pursuant to the CRA’s staffing recourse policy.
[4]
The
CRA’s staffing program and selection process operate as follows: Parliament has
conferred on the CRA via subsection 53(1) of the Canada Revenue Agency Act,
S.C. 1999, c. 17 (the Act) the exclusive right and authority to
appoint any employees that it considers necessary for the proper conduct of its
business. In accordance with this statutory direction, the CRA has developed a
staffing program. Under the staffing program, there are three stages in the
selection process: (1) a review of the candidates against the pre-requisites
for the position, (2) an assessment of those who meet the pre-requisites for
the position, and (3) a placement of one or more qualified persons. There are
also three stages of recourse against a selection process: (1) individual
feedback, (2) decision review, and (3) independent third party review. Candidates
who are screened out at the first stage may only apply for individual feedback.
Candidates who are screened out at the second stage may apply for individual
feedback and then decision review. Candidates who are screened out at the third
stage may apply for individual feedback and then independent third party
review.
[5]
The
applicant is a tax auditor with the CRA. She was a candidate in three selection
processes for the position of auditor at the AU-04 group and level at various
locations in the Southern Ontario Region. As a part of the assessment stage of
those selection processes, the applicant wrote two examinations: (1) a general
exam (analytical thinking and legislation, policy and procedures), and (2) an
international audit exam. The CRA requires candidates to achieve a score of
11/17 in the analytical thinking part of the general exam and 45/75 (or 60%) on
the combined score for the legislation, policy and procedures part of the
general exam and the international audit exam. On December 6, 2005, the
applicant was informed that she had not achieved the combined necessary passing
mark of 60% on the legislation, policy and procedures and international audit
exams. As such, she was screened out of the competition.
[6]
On
December 30, 2005, the applicant initiated recourse under the CRA’s staffing
program by requesting individual recourse. On January 10, 2006, the applicant
received individual feedback, but no corrective measures were recommended.
[7]
On
January
16, 2006,
the applicant applied for decision review. The applicant alleged that she
should have received part marks for certain questions and full marks for other
questions that she had received no marks for. Pursuant to the staffing program,
decision review is comprised of three steps: (1) a review of the documentation
presented by the employee and the hiring manager, (2) the gathering of
additional information, as required, and (3) the analysing of the facts. The
only ground for consideration by an officer conducting a decision review is
whether the employee was treated arbitrarily as defined in the CRA Staffing
Recourse Program. In reviewing the decision, the officer approached the
selection board for their response to the applicant’s submissions. A number of
documents entitled “Board Response to Candidate’s Request for Decision Review”
were created and provided to the officer, but not to the applicant. On June 16,
2006, the applicant was informed that in a decision dated May 25, 2006 the officer
decided that the applicant had not been treated in an arbitrary manner.
[8]
Upon
receipt of the decision, the applicant was concerned that the officer had not
addressed her submissions that she should have received full marks for certain
questions. The applicant then signed and returned her copy of the decision as
required, and informed the officer that she felt he had failed to address her
concerns about full marks. She specified again that she was seeking full marks
for five questions.
[9]
On
November 7, 2006, the applicant received a revised decision review decision
from the officer which stated that the officer had inadvertently referred to
question 9 when he meant question 3, and as such her concerns regarding
question 3 had been addressed in his original decision. His original decision
remained unchanged. This is the judicial review of the officer’s decision dated
November 7, 2006.
Officer’s Reasons for
Decision
[10]
The
relevant portions of the officer’s decision dated November 7,
2006
are reproduced below:
CANDIDATE’S DECISION REVIEW ISSUES:
The candidate has provided a submission
that identified the following issues:
Condensed Issues:
The candidate is requesting part marks
for recognizing that in eleven distinct questions, some parts of the multiple
choice answer is correct even though she chose an altogether different answer
i.e., Common Exam A – Q1, 4, 14, 13, 19 and 20; International Exam A – Q3, 4, 5
and 15; and Common Exam Version A – Q8.
DECISION AND RATIONALE:
As outlined in the Directives on
Recourse for Staffing, the grounds for recourse for Individual Feedback and
the Decision Review Process is whether the employee exercising recourse was
treated in an arbitrary way. The focus should be on the treatment of the
individual in the process and not on the evaluation of other candidates or
employees.
The word “arbitrary” is defined as
follows:
“In an unreasonable manner, done
capriciously; not done or acting according to reason or judgment; not based on
rationale, on established policy; not the result of a reasoning applied to
relevant considerations; discriminatory (i.e. difference of treatment or denial
of normal privileges to persons because of their race, age, sex, nationality,
religion or union affiliation.)”.
CORRECTION OF ADMINISTRATIVE ERROR
The candidate has indicated that her
concerns regarding Question 3 (Q3) of the International Exam (Version A) were
not addressed by the undersigned Decision Reviewer. In my original response
dated May 25, 2006, I indicated that the candidate had requested DR on Question
9 (Q9) of the International Exam (Version A). In fact, the candidate requested
part marks on Q3 of the International Exam (Version A) and I inadvertently
referred to it as “Q9”. The candidate’s concerns regarding Q3 of the
International Exam (Version A) have already been taken into consideration as
part of the my initial Review and my original finding remains unchanged; I do
not find that candidate Christine Ng was treated in an arbitrary manner by the
board not awarding part marks for answers that were not the best answer
expected.
In each question sighted by Christine, it
is recognized that the various answers to choose from may have some element of
correctness to them however, the candidate is expected to identify the best
answer from the choices. No part marks should be awarded and a mark registered
for the correct/best answer only is an appropriate approach to take.
Issues
[11]
The
applicant submitted the following issues for consideration:
1. Did the officer
violate the rules of procedural fairness and natural justice in the manner in
which he responded to the applicant’s requests for decision review?
2. Is the model answer
provided by the CRA to question 3 of the international audit exam correct?
[12]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
violate procedural fairness?
a. What are
the contents of procedural fairness in the present case?
b. Did the officer
fail to consider the applicant’s allegation that she deserved full marks for
five of the questions on the exam?
c. Did the officer
breach procedural fairness when he failed to provide the applicant with
documents submitted to the officer by the selection board?
d. Was
there a reasonable apprehension of bias that the applicant’s allegations were
not considered impartially?
3. Did the officer
commit a reviewable error in finding that the model answer to question 3 of the
international audit exam was (c)?
Applicant’s Written Submissions
[13]
The
applicant submitted that while Parliament granted CRA the authority to develop
a program governing staffing, (including the appointment of, and recourse for
employees), the methods developed must be consistent with the rules of
procedural fairness. In the absence of unambiguous legislative language to the
contrary, Parliament is presumed to intend that a federal tribunal must comply
with the rules of procedural fairness (Ocean Port Hotel Ltd. v. British
Columbia (General Manager, Liquor Control and licensing Branch), [2001] 2
S.C.R. 781 at paragraphs 19 to 22). The applicant submitted that as the
staffing program is only a policy, the rules of procedural fairness prevail
over any specific rules in the staffing program.
[14]
The
applicant submitted that the nature and extent of the rules of procedural
fairness are determined by analyzing the factors identified by the Supreme
Court of Canada in Baker v. Canada (Minister of Citizienship and
Immigration), [1999] 2 S.C.R. 817 at paragraphs 23 to 28). The
applicant submitted that applying the Baker factors to the case at bar,
reveals that the decision review process falls in the middle of the spectrum of
procedural fairness. The applicant submitted that the decision review process
is adversarial in nature, with the officer basing his or her decision on
submissions made by both the employee and the manager responsible for the
assessment. The applicant also noted that the decision should be based on
objective criteria and not open-ended discretion. The applicant submitted that
the Act and staffing program do not contain any appeal procedures from the
outcome of the decision review. The applicant submitted that decision review
decisions have a significant impact on a candidate’s career and that employees
legitimately expect the process to be fair, in light of the underlying
principles of the staffing program. And finally, the applicant submitted that
Parliament gave CRA the discretion to design the method of staffing recourse.
[15]
The
applicant submitted that the officer breached procedural fairness on three
grounds. Firstly, the applicant submitted that the officer’s decision violated
the rules of procedural fairness by failing to consider the applicant’s
allegation that she deserved full marks for five questions. The rules of
procedural fairness require a statutory decision-maker to consider all the
submissions made to it (Canadian Boradcasting Corporation v. Paul,
[2001] F.C.J. No. 542 at paragraphs 45 to 52 (C.A.)). The
applicant submitted that while the officer considered her submission for part
marks, he ignored her submission that for five questions she should have
received full marks. The applicant submitted that the staffing program also
compels the officer to consider all of the applicant’s submissions as it
requires the officer to review documentation presented by the employee and to
analyze the facts.
[16]
Secondly,
the applicant submitted that the failure of the officer to provide the
applicant with the opportunity to respond to information that he solicited from
the CRA was a breach of procedural fairness. The applicant submitted that the tribunal
record contained nine documents entitled “Board Response to Candidate’s Request
for Decision Review”. The applicant submitted that as these documents relate to
her allegations and were considered by the officer in making his decision, she
should have been given the opportunity to respond to them. It is a fundamental
rule of procedural fairness that an affected individual know the case to be met
against them (through disclosure of all relevant material) and have a
reasonable opportunity to respond. The applicant submitted that in Professional
Institute of the Public Service of Canada v. Canada (Customs and Revenue
Agency), [2004] F.C.J. No. 649 at paragraphs 103 and 111 to 113,
this Court held that the staffing program at CRA does not forbid employees from
accessing expert or other information and that the officer could provide
employees with all information gathered and invite comments. The applicant
submitted that as this Court has already concluded that the staffing program is
fair only because it permits employees to access this expert or other
information, it naturally flows that preventing access to this information is a
violation of the rules of procedural fairness.
[17]
Thirdly,
the applicant submitted that there existed a reasonable apprehension of bias of
the officer which breached procedural fairness. The applicant based this
argument on an email sent by Jean-Marc Guinard to Sunil Vijh, a member of the
Selection Board, and copied to the officer, requesting his expert opinion
concerning the international audit exam questions. The applicant submitted that
the request for an expert opinion was tainted by the fact that the person
requesting the information told the expert what the response should be.
Specifically, the email read “Could you review [the applicant’s] submission on
Question 3 for technical merit and contact [the officer] with your analysis. I
would think that issue would probably be resolved with the Board’s chosen reply
being correct ‘the best answer from the choices’”. The applicant noted that the
email was copied to the officer, and as such, raises a reasonable apprehension
that the applicant’s submissions were not considered impartially, and the
decision was pre-determined.
[18]
The
applicant submitted that the officer also erred in finding that the correct
answer to question 3 of the international audit exam was (c), and not (a). The
applicant submitted that the applicable standard of review for this question is
correctness. The applicant submitted that the Act does not contain a privative
clause, the nature of the issue is a pure question of international tax law,
the officer has no tax expertise, and the purpose of the Act and section 54 of
the Act leads to “an ambivalent result when considered with the appropriate
standard of review” (Anderson v. Canada (Customs and Revenue Agency),
[2003] F.C.J. No. 924 at paragraph 58).
[19]
The
applicant submitted that the issue raised in question 3, whether reduced rates
of Part XIII withholding tax on payments to non-residents are authorized under
Income Tax Conventions (Treaties), or subsection 10(6) of the Income Tax
Application Rules, R.S.C. 1985, c. 2 (5th Supplement) (ITAR), was
incorrectly decided by the officer. The applicant submitted that on its face,
answer (c) is correct; however, the answer does not consider the more
fundamental point that, in Canada, tax conventions take priority over the
Act. The applicant submitted that every time Canada enters into
a tax treaty with another country, Parliament enacts a statute to implement
that particular tax treaty. The applicant submitted that these treaties –
without exception – take priority over the Act. Therefore, the withholding tax
in Part XIII of the Act is either 25% or the amount set out in the relevant tax
treaty. The applicant submitted that the reduced rate of withholding tax is
permitted under the treaty, not ITAR 10(6) because the statutes giving the
treaties the force of law all state that the treaties prevail over the Act. The
applicant also noted that CRA’s “Information Circulars” addressing the Part
XIII withholding tax all refer to the treaties, and not to ITAR 10(6), as the
relevant authority for determining the rate of withholding tax. Lastly, the
applicant also submitted that the model answer contains a drafting error as it
reads “ITAR 10(6) of the Income Tax Act”. The applicant submitted that the ITAR
is not a part of the Act as it is its own statute.
Respondent’s Written Submissions
[20]
The
respondent raised a preliminary issue concerning the affidavit of the
applicant. The respondent submitted that paragraphs 17 and 18 of the
applicant’s affidavit should be struck as they do not conform to Rule 81 of the
Federal Courts Rules above SOR/98-106, which requires that affidavits
“be confined to the facts within the personal knowledge of the deponent”. The
respondent submitted that the applicant inappropriately included in her
affidavit hearsay statements about Mr. Watson’s (the officer’s) background, and
deposes that Mr. Walkingshaw (one of the applicant’s managers) recommended to
another decision reviewer in another selection process, to strike a question
from an examination because the proposed answer was incorrect. The respondent
submitted that these statements are inadmissible and irrelevant. The respondent
noted that judicial review is to be conducted on the basis of the evidence
before the decision-maker when rendering its decision.
[21]
With
regards to procedural fairness, the respondent submitted that based on the Baker
above factors, procedural protection in this case lies at the lower end of
the spectrum. The respondent submitted that the nature of the decision being
made and the process followed do not resemble adjudication. The respondent
submitted that the officer’s only ground for review is whether an employee was
treated arbitrarily, and this review should be conducted by way of “paper
review” whenever possible. With regards to the statutory scheme, the respondent
submitted that greater procedural protections are required when no appeal
procedure is provided within the statute, or when the decision is determinative
of the issue and further requests cannot be submitted (Anderson above). The
respondent submitted that the officer’s decision is not immune from challenge
and can be judicially reviewed. The respondent submitted that the applicant’s
job or livelihood is not at stake and as such, a lower level of procedural
fairness is warranted. The respondent also noted that the kind of recourse
available to employees under the staffing program is intended to be
commensurate with the nature and significance of the staffing decision at
issue. The respondent submitted that candidates’ legitimate expectations should
be confined to having the opportunity to fully present their views and to be
heard by an impartial person. Lastly, the respondent submitted that Parliament
has left CRA with the discretion to design the method of staffing recourse.
[22]
The
respondent submitted that the officer did not violate the rules of procedural
fairness by failing to consider the applicant’s submission that she deserved
“full marks” as opposed to “part marks” for some multiple choice questions. The
respondent submitted that the officer’s decision provided that “no part marks
should be awarded and a mark registered for the correct/best answer only is the
appropriate approach to take”. The respondent submitted that if an answer does
not merit part marks, it does not merit full marks either.
[23]
The
respondent submitted that as the decision review process lies at the lower
spectrum in terms of requirements of procedural fairness, the applicant was
only entitled to have a meaningful opportunity to put forward her views. The
respondent submitted that the applicant had such an opportunity in the case at
bar. The respondent submitted that the procedures as set out in the staffing
program do not require any kind of cross-disclosure of submissions. The
decision reviewer reviews the documentation presented by the employee and the
hiring manager gathers additional information (as required) and analyzes the
facts. The respondent submitted that in Professional Institute of Public
Service of Canada above, the Court found that the decision review process
met the requirements of procedural fairness because nothing in the program
prevented an employee from reviewing or commenting on “additional information”
gathered by the decision reviewer. The respondent noted that in that decision,
when the Court spoke of “additional information”, it was referring to
information that was in addition to the information provided by the parties.
The respondent submitted that the applicant provides no evidence that the officer
relied on anything other than the submissions of the parties.
[24]
The
respondent also submitted that there was no reasonable apprehension of bias.
The respondent submitted that the test for reasonable apprehension of bias is
whether a reasonably informed bystander could reasonably perceive bias on the
part of an adjudicator (Newfoundland Telephone Company v. Newfoundland
(Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 at paragraph
22). The respondent submitted that the email was not sent by the officer.
Furthermore, the respondent submitted that the allegation that an employee’s
opinion would affect the officer’s impartiality is without basis.
[25]
The
respondent submitted that the appropriate standard of review is one of
reasonableness simpliciter. The respondent submitted that in Canada v.
Pépin, [2006] A.C.F. No. 1209 at paragraph 27, the Court held
that the question before it was to decide if the Board had erred in concluding
that the merit principle had not been respected and that this was reviewable on
a standard of reasonableness simpliciter. The respondent also submitted
that in Beaulieu c. Canada, [2006] F.C.J. No. 1658, 2006
FC 1308 at paragraph 36, the Court applied the pragmatic and functional
approach and determined that decisions of decision reviewers under the CRA
staffing program were reviewable on the standard of reasonableness simpliciter.
[26]
The
respondent submitted that the officer was correct in concluding that the
applicant was not treated arbitrarily. The respondent submitted that CRA’s
answer to question 3 is correct as it is the best possible answer. The
respondent submitted that question 3 does not ask for the authority for reduced
rates of tax, but for reduced rates of withholding tax. That is, the
question asks to identify the authority of a payor to withhold less than the
25% that is required pursuant to section 212 of the Act when making a payment
to a non-resident. The respondent submitted that tax treaties do not address
the issue of the withholding of tax by the payor. Finally, the respondent
submitted that even if there were two possible answers to this question, the
fact that the selection board considered one of them to be the best answer does
not equate in a finding that the applicant was treated arbitrarily.
Analysis and Decision
[27]
Before
engaging in my analysis of the issues, the respondent raised a preliminary
issue as to the validity of paragraphs 17 and 18 of the applicant’s affidavit.
Section 81 of the Federal Courts Rules above, states that “affidavits
shall be confined to facts within the personal knowledge of the deponent,
except on motions in which statements as to the deponent’s belief, with the
grounds therefor, may be included.” This case involves a judicial review and
not a motion. Therefore, the applicant’s affidavit should be limited to “the
facts within her personal knowledge”. However, the remedy requested by the
respondent, that of striking out certain paragraphs of the affidavit, has been
ruled by this Court to be one that should be exercised sparingly and only where
it is in the interests of justice to do so (Armstrong v. Canada (A.G.),
[2005] F.C.J. No. 1270 at paragraph 40). As such, I believe it not appropriate
to strike the paragraphs from the applicant’s affidavit. However, I acknowledge
the respondent’s submission that as this is an application for judicial review,
only the documents and information before the decision-maker at the time of the
decision are to be considered. As the information provided in paragraphs 17 and
18 of the applicant’s affidavit was not before the decision-maker at the time
the decision was rendered, I would afford it negligible weight.
[28]
Issue
1
What is the appropriate
standard of review?
Questions of
procedural fairness are reviewable on a standard of correctness (see Chrétien
v. Canada (Commission
of Inquiry into the Sponsorship Program and Advertising Activities, Gomery
Commission), [2008] F.C.J. No. 973).
[29]
Issue
2a
Did the officer violate
procedural fairness?
- What
are the contents of procedural fairness in the present case?
The applicant submitted that
the decision review process falls in the middle of the spectrum of procedural
fairness. The respondent submitted that the scope of duty of fairness is
minimal. The Supreme Court of Canada in Baker, above at
paragraphs 23 to 28, held that the nature and extent of the rules of procedural
fairness must be determined by analysing the following factors:
·
The
nature of the decision being made and the process followed in making it;
·
The
nature of the statutory scheme, and the terms of the legislation pursuant to
which the decision-maker operates;
·
The
importance of the decision to the affected individual;
·
The
legitimate expectations of the person challenging the decision; and
·
The
choice of procedure made by the decision-maker, particularly where the
legislation leaves to the decision-maker the ability to choose its own
procedures.
[30]
Based
on these factors, I have come to the following findings:
- The
decision review process is somewhat adversarial in nature. The reviewing
officer must make a determination on whether an employee was treated
arbitrarily by a person responsible for staffing action based on
submissions from the employee and the hiring manager. The decision is to
be based on objective criteria and not discretion. However, according to
the staffing program, decision reviews are to be conducted by way of
“paper review” whenever possible.
- The
nature of the Act and the staffing program is such that there is no appeal
procedure; however, decisions can be judicially reviewed by this Court.
- The
decision at issue does have a significant impact on the candidate’s career
both presently and in the long term; however, her current job and
livelihood are not at stake. There was no guarantee that the applicant
would ever have received a position.
- The
underlying principles of the staffing program include fairness, and as
such the applicant had a legitimate expectation to be treated fairly.
However, the staffing program provides that the kind of recourse available
to employees corresponds with how far they make it in the selection
process. The applicant in this case was in the second of three stages and
thus, she could not have had a legitimate expectation to the ultimate
recourse mechanism as it is reserved for those who have made it to the
third step of the application process.
- The
choice of procedure has been entrusted to the CRA. Important weight must
be given to the procedure chosen as Parliament clearly intended CRA to
create its own staffing procedure and methods for staffing recourse.
[31]
Having
taken all these matters into consideration, I am of the opinion that the
decision review process of the CRA staffing program falls in the middle to
lower end of the spectrum of procedural fairness.
[32]
I
wish to first deal with Issue 2c.
[33]
Issue
2c
Did the officer breach
procedural fairness when he failed to provide the applicant with documents
submitted to the officer by the selection board?
The applicant submitted that the
officer violated the rules of procedural fairness by accepting the documents
entitled “Board Response to Candidate’s Request for Decision Review”, and
failing to disclose them to the applicant so that she could respond to them.
The respondent submitted that the applicant was given a meaningful opportunity
to put forward her views and that there is no cross-disclosure of submission
under the staffing program. Both the applicant and the respondent relied on Professional
Institute of the Public Service of Canada above, in making their
submissions.
[34]
In
Professional Institute of the Public Service of Canada above, this Court
considered the issue of cross-disclosure in the decision review procedure of
the CRA staffing procedure and stated at paragraphs 108 to 114:
108. As regards the Decision Review
aspect of the Program, similar conclusions can be drawn regarding the issues of
independence, reasonable apprehension of bias and representation as to those
already drawn in relation to Individual Feedback. But the Applicant raises two
further points that require consideration.
109. First of all, the Applicants
says that, at the Decision Review stage, the reviewing manager can call for
expert information on staffing and human resource matters that the employee has
no right to see. Hence, in such a situation the employee would not know the
case that she or he had to meet and this is procedurally unfair. Not only would
the employee not see the expert information, but the employee has no right to
call witnesses or present evidence.
110. In addition, the Applicant says
that, because the policy behind the Program does not allow an employer to
access the assessments of other candidates, a dissatisfied employee has no way
of challenging a Decision Review conclusion or of establishing
"arbitrary" treatment.
111. The Respondent takes the
position that, on this issue as on the Applicant's attack on the Program in
general, the Applicant is being speculative and premature. The Respondent
points out that the Program does not forbid the Applicant access to expert or
other information. Whenever relevant, the reviewing supervisor can provide the
employee with reports and other information and invite comments from the
employee. Also, there is no prohibition against the employee calling witnesses
or other evidence to assist his or her case. Any employee who wishes to adduce
such evidence merely has to ask permission to do so and this request will be
considered in the usual way and in accordance with the relevance, fairness and
other factors that arise in each case.
112. As regards input from an
employee representative at the Decision Review stage, the Respondent points out
that there is no prohibition in the Program that prevents a representative from
speaking on behalf of an employee at the Decision Review stage. Once again,
this should be left to the reviewing supervisor to deal with on a case by case
basis and, if an employee feels aggrieved by an individual decision, it can be
reviewed by this Court.
113. My review of the "Decision
Review Process" in the Staffing Program Directives on Recourse for
Staffing suggests that the Respondent is correct and that there are no specific
prohibitions that prevent access to information and representation in appropriate
cases. In fact, the supervisory reviewer is given considerable discretion to
meet the needs of each specific occasion. The reviewer has the "discretion
as to how to proceed with the review." The reviewer must ensure "that
the review is conducted in an impartial manner and that the Authorized Person
and the employee exercising recourse have the opportunity to present their
views." The reviewer is mandated to "conduct the review and gather
such information as is required in order to come to a decision."
114. There is, correspondingly, no
prohibition against sharing information, representation, and appropriate
procedural safeguards except in one specific respect. The Directive on Recourse
says that "Personal information regarding other candidates or employees may
not be disclosed." In my opinion, this prohibition does not impair the
Program in the ways suggested by the Applicant.
[35]
My
understanding of Justice Russell’s comments on the decision review process is
to the effect that the staffing program itself did not prima facie
violate procedural fairness as it provided the decision-maker with the
discretion to ensure that disclosure is provided where necessary to ensure that
procedural fairness is not violated. However, I note that the case did not
involve a set of facts as the Court was not being asked to review a specific
decision, but yet the entirety of the staffing policy on the basis that it prima
facie breached procedural fairness. The Court dismissed the application in
that case finding at paragraph 180 that it was “ill-found, speculative and
premature and did not present a decision, order or other matter intended for
review in accordance with s. 18.1 of the Federal Courts Act”.
[36]
In
my opinion, the requirements of procedural fairness were breached in the case
at bar. The officer had the necessary discretion to ensure the disclosure of
the documents and consequently, prevent a violation of procedural fairness.
Thus, while the staffing program itself does not prima facie
violate the rules of procedural fairness, in the circumstances of this case,
the applicant should have been given the opportunity to respond to the
documents from the selection board. I would allow the judicial review on this
ground.
[37]
Because
of my finding on this issue, I need not deal with the remaining issues.
[38]
The
application for judicial review is therefore allowed and the matter is referred
to a different officer for redetermination.
JUDGMENT
[39]
IT
IS ORDERED that the application for judicial review is allowed
and the matter is referred to a different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The
relevant statutory provisions are set out in this section
The Canada
Revenue Agency Act, S.C. 1999, c. 17:
|
53.(1)
The Agency has the exclusive right and authority to appoint any employees
that it considers necessary for the proper conduct of its business.
(2) The Commissioner must exercise the
appointment authority under subsection (1) on behalf of the Agency.
54.(1)
The Agency must develop a program governing staffing, including the
appointment of, and recourse for, employees.
(2) No
collective agreement may deal with matters governed by the staffing program.
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53.(1)
L’Agence a compétence exclusive pour nommer le personnel qu’elle estime
nécessaire à l’exercice de ses activités.
(2)
Les attributions prévues au paragraphe (1) sont exercées par le commissaire
pour le compte de l’Agence.
54.(1)
L’Agence élabore un programme de dotation en personnel régissant notamment
les nominations et les recours offerts aux employés.
(2)
Sont exclues du champ des conventions collectives toutes les matières régies
par le programme de dotation en personnel.
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