Date: 20100202
Docket: A-226-09
Citation: 2010 FCA 34
CORAM: NOËL J.A.
PELLETIER J.A.
LAYDEN-STEVENSON J.A.
BETWEEN:
ELLIOTT
MOGLICA
Appellant
and
ATTORNEY
GENERAL OF CANADA
Respondent
Heard at Toronto, Ontario, on January
27, 2010.
Judgment delivered at Ottawa,
Ontario, on February
2, 2010.
REASONS FOR JUDGMENT BY: PELLETIER
J.A.
CONCURRED
IN BY:
NOËL J.A.
LAYDEN-STEVENSON J.A.
Date: 20100202
Docket: A-226-09
Citation: 2010 FCA 34
CORAM: NOËL
J.A.
PELLETIER J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
ELLIOTT MOGLICA
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
PELLETIER J.A.
[1]
Mr.
Moglica appeals from Mr. Justice Michael Phelan’s decision dismissing his
application for judicial review of the decision of the Director of the
Investigations Branch of the Public Service Commission (the Director). The
Director dismissed Mr. Moglica’s request for an investigation into the
circumstances of the Canada Border Service Agency’s (the Agency) rejection of
his candidacy for a position as an Inland Enforcement Officer.
[2]
In order
to obtain the position which he desired, Mr. Moglica was required to pass a “knowledge”
exam and to undergo an interview. The knowledge exam was divided into two
parts, and a candidate was required to obtain a passing mark in each part. Mr.
Moglica obtained a mark of 7/18 on the first part of the exam, when he required
a mark of 9/18 in order to pass. Since he did not pass the first part of the
exam, the Agency’s officials did not bother to mark the second part of the
exam, and no interview was held. His application was simply rejected.
[3]
Mr.
Moglica asked the Director to undertake an investigation, alleging procedural
irregularities as well as discrimination on the basis of his Albanian national
origin. The Director advised him that the complaint with respect to
discrimination would have to be made to the Canadian Human Rights Commission. As
for the alleged procedural irregularities, the Director found that none of them
were justified or gave rise to any remedy.
[4]
Mr.
Moglica brought an application for judicial review to the Federal Court. Justice
Phelan identified the standard of review as reasonableness and dismissed the
application in brief reasons reported as Moglica v. A.G. Canada, 2009 FC
452, [2009] F.C.J. No. 578. The learned judge agreed that to the extent that
Mr. Moglica was complaining about discrimination, the proper forum for that
complaint was the Canadian Human Rights Commission. He then went on to examine
four specific concerns raised by Mr. Moglica and concluded in each case that it
was not unreasonable for the Director to decline to intervene.
[5]
Mr.
Moglica now appeals to this Court, alleging numerous violations of his rights. This
Court’s task is to determine if the application judge properly identified and
applied the applicable standard of review: Dr. Q v. British Columbia College
of Physicians and Surgeons, 2003 SCC 19, [2003] 1 S.C.R. 226 at paragraph
43. I am satisfied that the learned applications judge correctly identified the
standard of review and applied it appropriately. As a result, I can see no
basis on which this Court could intervene.
[6]
I would
dismiss the appeal with costs.
"J.D.
Denis Pelletier"
“I
agree.
Marc Noël J.A.”
“I
agree.
Carolyn Layden-Stevenson J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-226-09
(AN APPEAL
FROM THE ORDER OF THE HONOURABLE MR. JUSTICE PHELAN OF THE FEDERAL COURT DATED MAY
5, 2009, DOCKET NO.
T-528-08.)
STYLE OF CAUSE: ELLIOTT MOGLICA v. THE ATTORNEY
GENERAL OF CANADA
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 27, 2010
REASONS FOR JUDGMENT BY: PELLETIER J.A.
CONCURRED IN BY: NOËL J.A.
LAYDEN-STEVENSON J.A.
DATED: FEBRUARY 2, 2010
APPEARANCES:
|
ELLIOTT MOGLICA
|
FOR THE
APPELLANT, on his own behalf
|
|
GILIAN A.
PATTERSON
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Elliott Moglica
Toronto, Ontario
|
FOR THE
APPELLANT, on his own behalf
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
Email this Content