Docket: A-426-13
Citation:
2015 FCA 135
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CORAM:
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DAWSON J.A.
TRUDEL J.A.
RENNIE 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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DEPUTY MINISTER
OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE CANADA
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Respondent
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REASONS
FOR JUDGMENT
RENNIE J.A.
[1]
This is an appeal from a decision of the Federal
Court, dismissing the appellant’s judicial review application of a decision of
the Public Service Staffing Tribunal (the Tribunal). Before the Tribunal, the
appellant alleged that the Department of Foreign Affairs and International
Trade (DFAIT) discriminated against him on the basis of his race and/or national
or ethnic origin in finding him not qualified for a job posting and abused its
authority by appointing two candidates who did not meet the education
requirement of the Job Opportunity Advertisement (JOA).
[2]
The underlying facts are straightforward. The
appellant applied for an information technology position. Both the JOA and the
Statement of Merit Criteria & Conditions of Employment specified that applicants
had to satisfy an education requirement of two years post-secondary education
in computer science, information technology, information management or another
speciality relevant to the position. The JOA instructed applicants to include a
cover letter that demonstrated how they met the education and experience
requirements. The JOA specified, in very clear terms, that the failure to
provide the information in the cover letter would result in the rejection of
the application.
[3]
The appellant did not mention his education in
his cover letter. In consequence, the appellant’s application, as well as 35
other of the 332 applications, was screened out of the competition.
[4]
The appellant subsequently filed nine complaints
of abuse of authority pursuant to section 77 of the Public Service
Employment Act (S.C. 2003, c. 22) before the Tribunal. For reasons reported
at 2012 PSST 0008, the Tribunal found that the appellant had established a prima facie case for discrimination but
held that DFAIT demonstrated a complete and reasonable explanation for the
appellant’s elimination from the process. The Tribunal also rejected the abuse
of authority claim advanced by the appellant, finding no evidence that would
dispute the testimony of DFAIT’s witnesses regarding the assessment of the successful
candidates’ educational credentials.
[5]
The Federal Court dismissed the appellant’s
application for judicial review of the Tribunal’s decision. In Reasons for
Judgment (2013 FC 1170) the Judge concluded there was no breach of procedural
fairness in the conduct of the hearing and that the Tribunal had rendered a
reasonable decision in dismissing the appellant’s complaints. The appellant now
appeals to this Court from the decision of the Federal Court. I would dismiss
the appeal, substantially for the reasons given by the Judge.
[6]
The role of this Court on appeal from a judicial
review is to determine whether the judge correctly identified and properly
applied the standards of review to a tribunal’s decision: Agraira v. Canada
(Public Safety and Emergency Preparedness), 2013 SCC 36 at para 47; [2013]
2 S.C.R. 559. The Judge, at paragraphs 53 and 54 of his decision, correctly
identified the applicable standards of review. Issues of procedural fairness
are reviewable on the standard of correctness: Mission Institution v. Khela,
2014 SCC 24; [2014] 1 S.C.R. 502. The remaining issues of abuse of authority
and discrimination were properly reviewed on a standard of reasonableness.
[7]
While the appellant advances many arguments in
support of his appeal, I will only address those that are strongest. They may
be categorized as breaches of procedural fairness and errors in respect of the
finding that there was no discrimination or abuse of authority. Insofar as the
breaches of procedural fairness are concerned, the appellant alleges that the
Tribunal breached procedural fairness by limiting his cross-examination of a DFAIT
witness, by refusing to allow him access to DFAIT’s premises to access
documents relating to other candidates for the appointment, and in basing its
decision on allegedly perjured testimony from one of DFAIT’s witnesses. I will
address this latter point in the context of the abuse of authority argument. In
his oral submissions, the appellant also contended that the Tribunal breached
procedural fairness in not maintaining a transcript of the proceedings.
[8]
None of these grounds disclose a reviewable error.
[9]
The Tribunal ruled that the appellant’s cross-examination
as to the educational qualifications and credentials of Ms. Fata, the officer
who screened out the appellant, were not relevant to either of the appellant’s
complaints concerning discrimination or abuse of authority. In eliminating the
appellant from the competition for failure to comply with the instructions with
respect to educational requirements, Ms. Fata was performing an administrative
function, to which her educational background had no demonstrable relevance. Determinations
as to relevancy are within the jurisdiction and discretion of the Tribunal. The
exercise of that discretion in this case did not breach any duty of fairness.
[10]
The Tribunal also appropriately rejected the
appellant’s request for access to DFAIT’s premises to obtain the full
application records of the nine successful candidates since the records of only
two of the candidates were relevant to his allegations of discrimination.
Further, the Tribunal, as an element of its ability to manage and conduct its
proceedings, is under no obligation to maintain a recording and produce a
transcript. In any event, the absence of a transcript had no material bearing
on any of the appellant’s arguments.
[11]
I turn to the issues of discrimination and abuse
of authority.
[12]
The Tribunal’s finding that DFAIT adduced a complete
explanation for the appellant’s elimination from the competition was entirely
reasonable. The appellant failed to show that he met the educational criteria
according to the prescribed and clearly-communicated application requirements. Ultimately,
it was the appellant’s responsibility to comply with the JOA instructions and
demonstrate in his cover letter how he met the education and experience
requirements. The appellant conceded, in this Court and the Federal Court, that
the instructions in the JOA were clear and the consequences of non-compliance expressly
set out. Further, the Tribunal found that the screening method was objective,
transparent and not discriminatory.
[13]
The appellant also contends that the Tribunal erred
in not finding that there was an abuse of authority arising from the appointment
of one particular candidate, who the appellant claimed did not have the
required educational qualifications. As the Judge noted, the Tribunal heard
evidence from those responsible for the assessment of the candidates on this
precise issue and did not find any reason to conclude that the successful
candidates did not meet the educational requirements. I see no reason to
interfere with the Tribunal’s assessment of this evidence.
[14]
Tangential to this ground, the appellant
contends that the Judge erred in refusing to accept new evidence produced on
judicial review by the appellant. The purpose of this evidence was to establish
that one of the successful candidates did not receive his education from a
recognized institution. The Judge found that this issue was specifically
addressed by the Tribunal and that its consideration included both documentary
exhibits and the testimony of officials responsible for the process. The Judge
concluded that the proposed new evidence could have been submitted at the time
of the hearing before the Tribunal. Further, the evidence would not be
sufficient to support the appellant’s allegations of perjury by the witness. A
mistaken belief or disagreement between witnesses does not mean one or the
other is necessarily a perjurer.
[15]
Finally, the appellant contends that DFAIT was
obligated to hire him in order to fulfill employment equity needs. This
argument was properly rejected by the Tribunal. Subsection 30(2) of the Public
Service Employment Act grants a discretion to consider broader
organizational needs, but only after a candidate has been found qualified. In
this case the discretion granted by subsection 30(2) was not engaged as the
appellant had not demonstrated the essential qualifications of the position. In
any event, as the Judge noted, the evidence before the Tribunal was that 50% of
the successful candidates were visible minorities, a point which significantly
undermined the contention that the requirement to expressly address the
educational requirements in the cover letter as a component of the screening
process was designed to exclude minorities.
[16]
To conclude on a procedural point, the style of
cause of this appeal should be amended to remove “Department of Foreign
Affairs” as the respondent and substitute the “Deputy Minister of Foreign
Affairs and International Trade Canada” as respondent. Government departments
are not legal entities and cannot be named as parties: Gravel v. Canada
(Attorney General), 2011 FC 832, 393 F.T.R. 219.
[17]
Several observations are in order in respect of
costs. The appellant submitted that portions of an affidavit he attempted to
file as part of the appeal book were redacted because it “fell into” the hands of a judge who was biased.
Allegations of bias against a judge are very serious. They were made without
any evidentiary foundation and were withdrawn at the hearing. The appellant
also made unsubstantiated allegations that counsel for the respondent was
acting without instructions, and that a witness had given perjured testimony.
In light of this, an award of costs at higher level is warranted.
[18]
Accordingly, I would dismiss the appeal, with
costs, inclusive of disbursements and taxes, fixed at $2,527.65.
"Donald J. Rennie"
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“I agree”
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Eleanor R. Dawson
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“I agree”
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Johanne
Trudel
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