Federal Court of Appeal upholds Federal Employment Board’s dismissal of a complaint that alleged abuse of authority in an internal appointment process

Federal Court of Appeal upholds Federal Employment Board’s dismissal of a complaint that alleged abuse of authority in an internal appointment process

Administrative law – Decisions reviewed – Employment and labour boards – Abuse of authority – Standard of review – Reasonableness – Employment – Appointment

Ghafari v. Canada (Attorney General), [2023] F.C.J. No. 1452, 2023 FCA 206, Federal Court of Appeal, October 11, 2023, A.L. Mactavish, K.A.S. Monaghan and M. Biringer JJ.A.

The applicant sought judicial review of a decision of the Federal Public Service Labour Relations and Employment Board (the “Board”), wherein the Board dismissed the applicant’s complaint alleging abuse of authority in an internal appointment process.

The applicant was a candidate for a senior methodologist position at Statistics Canada. The appointment process involved several stages, including a screening based on their public service performance assessment (PSPA) which evaluated whether the applicant met the six essential competencies for the position. The applicant’s director assessed him as not meeting any of the six essential competencies, after speaking with two chiefs of sections where the applicant worked but not his immediate supervisor. The applicant sought feedback from a member of the selection panel, who asked an assistant director familiar with the applicant’s work to review his track record. The assistant director concluded that the applicant met two of the required competencies but not the remaining four.

The applicant made a complaint to the Board pursuant to section 77 of the Public Service Employment Act, S.C. 2003, c. 22 (the “Act”), alleging abuse of authority resulting in an incorrect assessment of his competencies. He complained that (1) the director was biased against him based on three prior interactions; (2) the PSPA was inaccurate and put him at a disadvantage (though this was previously grieved and revised); (3) the director should have consulted with the applicant’s immediate supervisors when completing the assessment; and (4) the assessment was inaccurate.

The Board dismissed the complaint having addressed each area of concern, noting its role was not to reassess the application but rather to determine whether an abuse of authority had occurred.

The applicant sought judicial review of the Board’s decision by the Federal Court of Appeal, alleging breaches of procedural fairness and alleging that there were errors in the Board’s decision.

With respect to procedural fairness, the applicant submitted that the Board’s decision to exclude some of the applicant’s proposed witnesses was not fair. The applicant had advised that he intended to call 8 witnesses including an expert witness. The Board determined that the applicant would not be permitted to call two human resources advisors because their evidence was not relevant, and limited the applicant to calling one witness on each of two other subjects to avoid repetitive testimony. The Board also confirmed that the expert witness could testify, but not as an expert. The applicant says that the Board’s email convening the teleconference where witness issues were discussed did not inform him that he would have to explain his reasons for calling a proposed witness or that an exclusion of a witness was possible.

The Court acknowledged that the email convening the teleconference might have been clearer and that the applicant may not have understood the exclusion of his proposed witnesses might result from the teleconference. Nonetheless, this did not amount to a breach of procedural fairness. The Court noted that the Board’s governing legislation grants it the power to order pre-hearing procedures, and to order that a pre-hearing conference or hearing be conducted by means of telecommunication, provided all participants can communicate with each other.

The applicant also argued that the Board refused to accept additional evidence following the conclusion of the hearing. He became aware of the additional evidence during his cross examination of one of the respondent’s witnesses on the last day of testimony. He wrote the Board two days after closing arguments to seek permission to introduce the additional evidence, and the Board refused to admit the evidence, explaining that the test for admission was not met. The Court held that that this was not procedurally unfair. They note that, though the information was not available until after the close of the hearing, he could have asked for time to obtain the evidence either immediately following the testimony of the witness, or during his final oral submissions four days later.

With respect to the reasonableness of the decision, the applicant submitted that the Board had not considered his arguments with respect to the errors and faults in the appointment process that he says amount to an abuse of authority. The Court held that, reading the Board’s reasons as a whole, the Board was responsive to the applicant’s submissions, even if it failed to specifically address particular elements of the applicant’s argument. The Court held there was no special circumstances that would permit it to interfere with the Board’s factual findings, and saw no error in the Board’s finding that there was no bias.

The application for judicial review was dismissed.

This case was digested by JoAnne G. Barnum, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact JoAnne G. Barnum at [email protected].

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