Docket: A-82-13
Citation:
2014 FCA 60
CORAM: PELLETIER J.A.
GAUTHIER J.A.
MAINVILLE J.A.
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BETWEEN:
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PAUL ABI-MANSOUR
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Appellant
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and
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PUBLIC SERVICE COMMISSION
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Respondent
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REASONS
FOR JUDGMENT
MAINVILLE J.A.
[1]
These reasons concern an appeal from an unreported decision of Gagné J.
of the Federal Court (the Judge) dated February 7, 2013 (the Order) by which
she dismissed an application for judicial review from a decision of the Public
Service Staffing Tribunal dated November 24, 2011 dismissing the appellant’s
request to add the Treasury Board as a party to the proceedings concerning his staffing
complaint.
Context of the proceedings
[2]
In December of 2010, the Public Service Commission advertised an
employment opportunity at the EC-04 group level. The appellant applied for the
position, but was eventually screened out of the selection process for failure
to meet the minimal requirements of the position.
[3]
The appellant thereafter filed a complaint with the Public Service
Staffing Tribunal under paragraph 77(1)(a) of the Public Service
Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA). Subsections
30 (1) and (2) and paragraph 77(1)(a) of the PSEA read as
follows:
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30. (1) Appointments by the
Commission to or from within the public service shall be made on the basis of
merit and must be free from political influence.
(2) An
appointment is made on the basis of merit when
(a) the
Commission is satisfied that the person to be appointed meets the essential
qualifications for the work to be performed, as established by the deputy
head, including official language proficiency; and
(b) the
Commission has regard to
(i) any
additional qualifications that the deputy head may consider to be an asset
for the work to be performed, or for the organization, currently or in the
future,
(ii) any current
or future operational requirements of the organization that may be identified
by the deputy head, and
(iii) any
current or future needs of the organization that may be identified by the
deputy head.
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30. (1) Les nominations — internes
ou externes — à la fonction publique faites par la Commission sont fondées
sur le mérite et sont indépendantes de toute influence politique.
(2) Une
nomination est fondée sur le mérite lorsque les conditions suivantes sont
réunies :
a) selon la Commission, la personne à
nommer possède les qualifications essentielles — notamment la compétence dans
les langues officielles — établies par l’administrateur général pour le
travail à accomplir;
b) la Commission prend en
compte :
(i) toute
qualification supplémentaire que l’administrateur général considère comme un
atout pour le travail à accomplir ou pour l’administration, pour le présent
ou l’avenir,
(ii) toute
exigence opérationnelle actuelle ou future de l’administration précisée par
l’administrateur général,
(iii) tout
besoin actuel ou futur de l’administration précisé par l’administrateur
général.
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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);
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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);
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[4]
The appellant alleges in his complaint that (a) the entrance tests
developed by the Public Service Commission are culturally and linguistically
biased, and the practices of the Commission have transformed members of
cultural and linguistic minorities into second class citizens; and (b) the
persons responsible for the specific competition he applied for conspired with
Treasury Board officials for improper purposes in order to alter the
requirements for the competition so as to screen out the appellant. The
appellant thus seeks that the appointment of the successful candidate be revoked
and that a new competition be held in which he would be allowed to participate.
[5]
Within the context of this complaint, and on the ground that Treasury
Board officials played an important role in ensuring that he was screened out
of the competition, the appellant requested that the Public Service Staffing
Tribunal add the Treasury Board as a party to the proceedings and also be
ordered to produce various documents.
The decisions below
[6]
The Public Service Staffing Tribunal dismissed the request to add the
Treasury Board as a party on the ground that it has no statutory authority to do
so. It based its decision on its reading of subsection 79(1) of the PSEA:
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79. (1) A
person making a complaint under section 77, the person appointed or proposed
for appointment, the deputy head and the Commission — or their
representatives — are entitled to be heard by the Tribunal.
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79. (1) Le
plaignant visé à l’article 77, la personne qui a fait l’objet de la
proposition de nomination ou qui a été nommée, la Commission et
l’administrateur général, ou leurs représentants, ont le droit de se faire
entendre par le Tribunal.
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[7]
Nevertheless, pursuant to its authority under paragraph 99(1)(e)
of the PSEA, the Public Service Staffing Tribunal compelled a Treasury
Board official to produce some of the documents requested by the appellant.
[8]
The appellant brought an application for judicial review of this
decision in the Federal Court. Relying on the decision of this Court in Canada
(Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, [2011] 2
F.C.R. 332 (C.B. Powell), the Judge opined (at page 2 of her Order)
“that interlocutory decisions of administrative organisms and tribunals can
only be judicially reviewed if exceptional circumstances exist”. She
consequently refused to review the decision of the Public Service Employment
Tribunal on the ground that the circumstances at issue were not exceptional.
The issues in appeal
[9]
Though the appellant raises many grounds of appeal, these may be
subsumed into the following two questions:
(a)
Did the Judge breach the principles of procedural fairness?
(b)
Did the Judge err in dismissing the judicial review application?
Analysis
[10]
At the hearing before the Judge, the respondent submitted that at this
stage of the proceedings, she should not disturb the interlocutory decision of
the Public Service Staffing Tribunal since none of the exceptional
circumstances discussed in C.B. Powell applied. In this appeal, the appellant
submits that by failing to raise that issue earlier and by failing to refer to C.B.
Powell in its memorandum of fact and law, the respondent took him by
surprise at the hearing. As a result, the appellant claims that his right to a
fair hearing was breached.
[11]
After carefully reviewing the record, I do not agree with the appellant.
The respondent clearly raised the issue at paragraphs 80 to 83 of its
memorandum of fact and law submitted prior to the hearing before the Judge (the
Memorandum). I reproduce here some extracts from that Memorandum:
-“In the recent decision of Halifax
(Regional Municipality) v. Nova Scotia, the Supreme Court of Canada has
clearly stated that reviewing courts should not intervene in administrative
decisions by Tribunals at an early stage of the process…” (Memorandum at paragraph
80);
-“As the Supreme Court has recently
restated in the Re Halifax decision, the Courts should not be
intervening at the early stages of an administrative process…” (Memorandum at
paragraph 82);
-The within case falls squarely in
that principle…The court as a matter of course should not be intervening at
this stage, rather it should let the administrative process be followed and
completed.” (Memorandum at paragraph 83).
[12]
The appellant nevertheless submits that it was only at the hearing
before the Judge that the respondent first referred to the decision of this
Court in C.B. Powell and to the decisions of the Federal Court which applied
it. However, the Supreme Court of Canada’s ruling in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1
S.C.R. 364, which was mentioned by the respondent in its Memorandum,
specifically refers to C.B. Powell.
[13]
Taking into account the overall circumstances of the proceedings, I
cannot conclude that the Judge failed to provide the appellant with a fair
hearing.
[14]
Moreover, the application for judicial review had no merit.
[15]
None of the remedies sought by the appellant in his complaint to the Public
Service Staffing Tribunal can be provided by the Treasury Board. Indeed, in his
complaint the appellant is essentially seeking the revocation of the
appointment which was made to the position he was seeking, his appointment to
that position or to a similar position, and monetary compensation. None of
these remedies directly involve the Treasury Board.
[16]
In these circumstances, the issue of whether or not the Public Service
Staffing Tribunal had the jurisdiction to add the Treasury Board as a party to
the proceedings is not determinative of the appeal. There is no legal or
factual reasons which would justify adding the Treasury Board as a party, even
if the Tribunal had the jurisdiction to do so, a matter which we need not
decide. Consequently, no fundamental issue of procedural fairness or of
jurisdiction was at issue in the proceedings.
[17]
I would consequently dismiss this appeal, with costs.
"Robert M. Mainville"
“I
agree.
J.D. Denis Pelletier”
“I
agree.
Johanne Gauthier”
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