Canada (Attorney General) v. Hasan, docket A-340-96

CORAM:      PRATTE, J.A.

     STONE, J.A.

     GRAY, D.J.

     A-340-96

BETWEEN:

     THE ATTORNEY GENERAL OF CANADA

     Appellant

     - and -

     KHALIL HASAN

     Respondent

    

     A-341-96

BETWEEN:

     THE ATTORNEY GENERAL OF CANADA

     Appellant

     - and -

     JOSEPH BRACCIALE

     Respondent

    

     A-342-96

BETWEEN:

     THE ATTORNEY GENERAL OF CANADA

     Appellant

     - and -

     PETER GIGNAC

     Respondent

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Toronto, Ontario,

     on Tuesday, December 3, 1996)

PRATTE, J.A.

     We are all of opinion that these appeals must fail.

     As we indicated during argument, we see no merit in the appellant's contention that subsection 24(1) of the Public Service Employment Regulations¹ is merely directory and that, as a consequence, in spite of the generality of its terms, it does not really impose the obligation to disclose in all cases all the evidence to which it refers. In our opinion, the traditional distinction between directory and mandatory provisions may be used to determine the consequences of the failure to perform a statutory duty; it cannot be invoked to deny the existence of the duty.

     The only other argument advanced by counsel for the Attorney General is that subsection 24(1), assuming its mandatory character, creates an alternative obligation to disclose the evidence either to the appellant or to his representative at the option of the appropriate deputy head. This argument cannot, in our view, be reconciled with the text of the regulation which, by requiring that the disclosure be made "on request", clearly indicates that the option, assuming one to exist, belongs to the appellant or his representative.

     Another possible interpretation of subsection 24(1) is that the right to disclosure is given to the appellant, if he is not represented, and, if he is represented, to his representative. Counsel for the Attorney General did not seek to support that interpretation which, clearly, would favour the respondents in these appeals.

     In our view, the judge of first instance was right when he said that under the regulation there was no justification for distinguishing between the disclosure to be made to an appellant and to his representative. An unrepresented appellant and the representative of an appellant both have the same rights under subsection 24(1).

     The appeals will be dismissed with costs.

     "Louis Pratte"

     J.A.

CORAM:      PRATTE, J.A.

     STONE, J.A.

     GRAY, D.J.

     A-340-96

BETWEEN:

     THE ATTORNEY GENERAL OF CANADA

     Appellant

     - and -

     KHALIL HASAN

     Respondent

    

     A-341-96

BETWEEN:

     THE ATTORNEY GENERAL OF CANADA

     Appellant

     - and -

     JOSEPH BRACCIALE

     Respondent

    

     A-342-96

BETWEEN:

     THE ATTORNEY GENERAL OF CANADA

     Appellant

     - and -

     PETER GIGNAC

     Respondent

Heard at Toronto, Ontario, on Tuesday, December 3, 1996.

Judgment rendered from the Bench on Tuesday, December 3, 1996.

REASONS FOR JUDGMENT OF THE COURT BY:      PRATTE, J.A.

     IN THE FEDERAL COURT OF APPEAL

     A-340-96

BETWEEN:

     THE ATTORNEY GENERAL OF CANADA

     Appellant

     - and -

     KHALIL HASAN

     Respondent

    

     A-341-96

BETWEEN:

     THE ATTORNEY GENERAL OF CANADA

     Appellant

     - and -

     JOSEPH BRACCIALE

     Respondent

    

     A-342-96

BETWEEN:

     THE ATTORNEY GENERAL OF CANADA

     Appellant

     - and -

     PETER GIGNAC

     Respondent

     REASONS FOR JUDGMENT

     OF THE COURT

__________________

¹      Which reads as follows:
             24.      (1)      An appellant or the appellant's representative shall be provided access, on request, to any document that contains information that pertains to the appellant or to the successful candidate and that may be disclosed before the appeal board.