Abi-Mansour v. Canada (Attorney General), 2015 FC 882

JudgeLeBlanc, J.
CourtFederal Court (Canada)
Case DateNovember 25, 2014
JurisdictionCanada (Federal)
Citations2015 FC 882;[2015] F.T.R. TBEd. AU.005

Abi-Mansour v. Can. (A.G.), [2015] F.T.R. TBEd. AU.005

MLB being edited

Currently being edited for F.T.R. - judgment temporarily in rough form.

Temp. Cite: [2015] F.T.R. TBEd. AU.005

Paul Abi-Mansour (applicant) v. The Attorney General of Canada (respondent)

(T-550-13; 2015 FC 882)

Indexed As: Abi-Mansour v. Canada (Attorney General)

Federal Court

LeBlanc, J.

July 17, 2015.

Summary:

Abi-Mansour was unsuccessful in a Department of Aboriginal Affairs and Northern Development internal appointment process. Abi-Mansour complained that the Department had discriminated against him on the basis of race or national or ethnic origin, abusing its authority within the meaning of s. 77(1)(a) of the Public Service Employment Act. The Public Service Staffing Tribunal dismissed the complaint. Abi-Mansour sought judicial review and appealed from an order for costs made against him by a Prothonotary on an earlier motion.

The Federal Court dismissed the application for judicial review and the appeal.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decision - Sufficiency of - [See second Labour Law - Topic 9093 ].

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - Abi-Mansour was unsuccessful in a Department of Aboriginal Affairs and Northern Development internal appointment process - Abi-Mansour complained that the Department had discriminated against him on the basis of race or national or ethnic origin, abusing its authority within the meaning of s. 77(1)(a) of the Public Service Employment Act - The Public Service Staffing Tribunal dismissed the complaint - Abi-Mansour sought judicial review, asserting, inter alia, that the Tribunal "just wanted to rule in favour of the Crown" and that this raised a reasonable apprehension of bias - The Federal Court dismissed the application - Allegations of bias were very serious allegations as they constituted attacks on the integrity of the entire administration of justice - They had to be made expressly and unequivocally and not on the basis of "elusive innuendoes" - Here, Abi-Mansour's allegations of bias were unsubstantiated and amounted to an abuse of process - See paragraphs 100 to 102.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - Abi-Mansour was unsuccessful in a Department of Aboriginal Affairs and Northern Development internal appointment process - Abi-Mansour complained that the Department had discriminated against him on the basis of race or national or ethnic origin, abusing its authority within the meaning of s. 77(1)(a) of the Public Service Employment Act - The Public Service Staffing Tribunal dismissed the complaint - Abi-Mansour sought judicial review - The Department objected to parts of two affidavits filed by Abi-Mansour in support of the application, asserting that they contained argument and opinion - The Federal Court agreed that the paragraphs identified were in fact opinionated and argumentative and gave them no weight or probative value - See paragraphs 29 to 31.

Administrative Law - Topic 3345.2

Judicial review - General - Practice - Issues not raised before tribunal - [See Civil Rights - Topic 8584 ].

Administrative Law - Topic 3349

Judicial review - General - Practice - Costs - Abi-Mansour was unsuccessful in a Department of Aboriginal Affairs and Northern Development internal appointment process - Abi-Mansour complained that the Department had discriminated against him on the basis of race or national or ethnic origin, abusing its authority within the meaning of s. 77(1)(a) of the Public Service Employment Act - The Public Service Staffing Tribunal dismissed the complaint - Abi-Mansour sought judicial review - Regarding costs, Abi-Mansour claimed costs regardless of the outcome, asserting that, as a person of limited means, he should not be expected to pay costs, particularly where the proceeding raised questions of public importance - The Federal Court dismissed the application for judicial review with costs for the Attorney General assessed in accordance with Column III of the table to Tariff B - There was no reason to depart from the general rule that costs followed the event - Column III concerned cases of average or usual complexity and represented a compromise between awarding full compensation to the successful party and imposing a crushing burden on the unsuccessful party - See paragraphs 103 to 106.

Civil Rights - Topic 989.1

Discrimination - Employment - On basis of nationality, race or ethnic origin - [See first Labour Law - Topic 9093 ].

Civil Rights - Topic 7069

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - General - Abi-Mansour was unsuccessful in a Department of Aboriginal Affairs and Northern Development internal appointment process - Abi-Mansour complained that the Department had discriminated against him on the basis of race or national or ethnic origin, abusing its authority within the meaning of s. 77(1)(a) of the Public Service Employment Act (PSEA) - The Public Service Staffing Tribunal dismissed the complaint - Abi-Mansour sought judicial review, asserting, inter alia, that the Tribunal had declined to exercise its jurisdiction by failing to consider his employment equity concerns as a separate issue from the discrimination issue, thereby committing a fatal jurisdictional error - The Federal Court dismissed the application - The Canadian Human Rights Commission was responsible for enforcing the Employment Equity Act (EEA) - The Tribunal had no authority to consider whether a government department was fulfilling its obligations under the EEA - Equity concerns only engaged the Tribunal's jurisdiction when employment equity was identified as an organizational need under s. 32(2) of the PSEA in relation to an appointment process that was the subject of a complaint under s. 77 of the PSEA - There was no basis for interfering with the Tribunal's approach to Abi-Mansour's equity concerns - See paragraphs 53 to 58.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - Abi-Mansour was unsuccessful in a Department of Aboriginal Affairs and Northern Development internal appointment process - Abi-Mansour complained that the Department had discriminated against him on the basis of race or national or ethnic origin, abusing its authority within the meaning of s. 77(1)(a) of the Public Service Employment Act - The Public Service Staffing Tribunal dismissed the complaint - Abi-Mansour sought judicial review - Less than a week prior to the hearing, Abi-Mansour served a notice of constitutional questions, raising Charter arguments - The Federal Court held that the notice was not acceptable for filing - As there was no constitutional argument before the Tribunal, it could not be addressed on judicial review - Further, the notice was not served and filed within the prescribed timeline and it provided no details as to the basis of the constitutional challenge - The lack of specificity was fatal - See paragraphs 24 to 28.

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - [See Civil Rights - Topic 8584 ].

Courts - Topic 2583

Registrars and prothonotaries - Appeals from - Scope of review - Abi-Mansour, who was self-represented, brought a series of successive motions to perfect his judicial review application record - Prothonotary Tabib extended the deadline for doing so - Abi-Mansour met that deadline, but several weeks later, moved for leave to file an amended affidavit, asserting that the motion was "forced" by the Prothonotary and "could have been avoided if there was a reasonable Prothonotary in place of Tabib" - Prothonotary Aronovitch granted the motion with costs of $250 in favour of the Attorney General due to "inappropriate language" and "the baseless allegation of abuse" against the court - Abi-Mansour appealed from the costs order - The Federal Court dismissed the appeal - Prothonotaries' orders were not disturbed unless the questions raised were vital to the final issue or the order was "clearly wrong" - Abi-Mansour's behaviour was abusive - Prothonotary Aronovitch was entitled to award costs against him, as the successful party, to deter abusive behaviour and unacceptable conduct - Abi-Mansour had been warned on several occasions - His behaviour "ought not to be tolerated" - See paragraphs 107 to 118.

Crown - Topic 4156

Actions by and against Crown in Right of Canada - Practice - Name of Crown in style of cause - The Federal Court ordered that the style of cause in the action was to be amended to remove "Department of Aboriginal Affairs" and replaced with "Attorney General of Canada" - Government departments were not legal entities and were not to be made parties in proceedings before the court - See paragraphs 22 and 23.

Labour Law - Topic 9015

Public service labour relations - General principles - Public Service Staff Relations Board - Jurisdiction (incl. chairperson) - [See Civil Rights - Topic 7069 ].

Labour Law - Topic 9093

Public service labour relations - Public service integrity - Abuse of authority (incl. harassment) - Abi-Mansour was unsuccessful in a Department of Aboriginal Affairs and Northern Development internal appointment process - Abi-Mansour complained that the Department had discriminated against him on the basis of race or national or ethnic origin, abusing its authority within the meaning of s. 77(1)(a) of the Public Service Employment Act - The Public Service Staffing Tribunal dismissed the complaint - Abi-Mansour sought judicial review, asserting, inter alia, that the Tribunal had committed a series of reviewable errors in its assessment of the explanations provided by the Department to demonstrate that Abi-Mansour's race or national or ethnic origin were not factors in its decision to appoint persons other than him - The Federal Court dismissed the application - The Tribunal found that the Department had established that, although Abi-Mansour might have met the essential qualifications for the position, he did not have the required experience in PeopleSoft and had not demonstrated on his application that he possessed the other asset qualifications that were legitimately considered - Abi-Mansour vehemently disagreed with the Tribunal, but this did not establish unreasonableness - The Tribunal's determination that Abi-Mansour had failed to establish that the Department had abused its authority in the appointment process was reasonable - See paragraphs 59 to 90.

Labour Law - Topic 9093

Public service labour relations - Public service integrity - Abuse of authority (incl. harassment) - Abi-Mansour was unsuccessful in a Department of Aboriginal Affairs and Northern Development internal appointment process - Abi-Mansour complained that the Department had discriminated against him on the basis of race or national or ethnic origin, abusing its authority within the meaning of s. 77(1)(a) of the Public Service Employment Act - The Public Service Staffing Tribunal dismissed the complaint - Abi-Mansour sought judicial review - The Federal Court dismissed the application - The Tribunal's determination that Abi-Mansour had failed to establish that the Department had retaliated against him for having filed complaints in relation to that process was reasonable - The Tribunal found that any claim that Abi-Mansour was screened out of the appointment process for extraneous reasons was entirely speculative and, if he thought that he had been unfairly eliminated, he had recourse under the Act - The Tribunal had not failed to deal in its reasons with all of the elements raised in Abi-Mansour's retaliation allegations - The Tribunal was not obliged to make an explicit finding on each element that led to its conclusion - The Tribunal's ultimate conclusion was that the Department had provided reasonable explanations for why others were appointed to the positions at issue, rather than Abi-Mansour - See paragraphs 91 to 99.

Labour Law - Topic 9182

Public service labour relations - Job competitions - General - Employment equity programs - [See Civil Rights - Topic 7069 ].

Labour Law - Topic 9184

Public service labour relations - Job competitions - Qualifications of applicant - General - [See first Labour Law - Topic 9093 ].

Labour Law - Topic 9193.3

Public service labour relations - Job competitions - General - Appointments - Complaints and investigations - [See second Labour Law - Topic 9093 ].

Labour Law - Topic 9257

Public service labour relations - Job selection with competition - Selection process - Relevant considerations in determining merit of candidates - [See first Labour Law - Topic 9093 ].

Labour Law - Topic 9318

Public service labour relations - Judicial review - General - Evidence and proof - [See Administrative Law - Topic 3345 and second Practice - Topic 3603 ].

Labour Law - Topic 9323

Public service labour relations - Judicial review - Decisions of board or commission - Standard of review - Abi-Mansour was unsuccessful in a Department of Aboriginal Affairs and Northern Development internal appointment process - Abi-Mansour complained that the Department had discriminated against him on the basis of race or national or ethnic origin, abusing its authority within the meaning of s. 77(1)(a) of the Public Service Employment Act - The Public Service Staffing Tribunal dismissed the complaint - Abi-Mansour sought judicial review - The Federal Court held that the issues of abuse of authority and discrimination were reviewed on a standard of reasonableness - To the extent that Abi-Mansour raised procedural fairness concerns, those were reviewed on a standard of correctness - See paragraphs 45 to 48.

Practice - Topic 44

Actions - Commencement of - Style of cause - Parties - [See Crown - Topic 4156 ].

Practice - Topic 306

Parties - General - Naming of in style of cause - [See Crown - Topic 4156 ].

Practice - Topic 3077

Applications and motions - Applications - Affidavit evidence - Content of - [See Administrative Law - Topic 3345 ].

Practice - Topic 3603

Evidence - Affidavits - General - Contents of (incl. attachments) - [See Administrative Law - Topic 3345 ].

Practice - Topic 3603

Evidence - Affidavits - General - Contents of (incl. attachments) - Abi-Mansour was unsuccessful in a Department of Aboriginal Affairs and Northern Development internal appointment process - Abi-Mansour complained that the Department had discriminated against him on the basis of race or national or ethnic origin, abusing its authority within the meaning of s. 77(1)(a) of the Public Service Employment Act - The Public Service Staffing Tribunal dismissed the complaint - Abi-Mansour sought judicial review - The Department filed an affidavit from one of its senior staffing advisors - Abi-Mansour asserted that the attachments to this affidavit should be struck as they were duplicative of his own exhibits - The Federal Court held that this claim had no merit - Duplication of court materials was not a ground for striking exhibits - See paragraphs 32 and 33.

Practice - Topic 7021

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Conduct (incl. counsel) - [See Courts - Topic 2583 ].

Practice - Topic 7034

Costs - Party and party costs - Entitlement to party and party costs - The attorney general - [See Courts - Topic 2583 ].

Practice - Topic 7050.1

Costs - Party and party costs - Entitlement to party and party costs - Against self- represented party - [See Courts - Topic 2583 ].

Cases Noticed:

Gravel v. Canada (Attorney General) (2011), 393 F.T.R. 219; 2011 FC 832, refd to. [para. 23].

Mahmood v. Canada et al. (1998), 154 F.T.R. 102; 82 A.C.W.S.(3d) 898 (T.D.), refd to. [para. 23].

Boshra v. Canada (Attorney General) (2012), 410 F.T.R. 240 (F.C.), refd to. [para. 25].

Worthington v. Canada (Minister of Citizenship and Immigration) (2004), 258 F.T.R. 102; 2004 FC 1546, affd. (2006), 346 N.R. 312; 2006 FCA 30, refd to. [para. 25].

Ardoch Algonquin First Nation et al. v. Canada (Attorney General), [2004] 2 F.C.R. 108; 315 N.R. 76 (F.C.A.), refd to. [para. 27].

Canada (Attorney General) v. Misquadis - see Ardoch Algonquin First Nation et al. v. Canada (Attorney General).

Gitxsan Treaty Society v. Hospital Employees' Union et al., [2000] 1 F.C. 135; 249 N.R. 37 (F.C.A.), refd to. [para. 27].

McEwing et al. v. Canada (Attorney General) et al. (2013), 433 F.T.R. 59; 2013 FC 525, refd to. [para. 30].

Samatar v. Canada (Attorney General), [2014] 2 F.C.R. 43; 420 F.T.R. 182; 2012 FC 1263, refd to. [para. 35].

Kilbray et al. v. Canada (Attorney General) et al. (2009), 344 F.T.R. 203; 2009 FC 390, refd to. [para. 38].

Canada (Attorney General) v. Lahlali (2012), 411 F.T.R. 245; 2012 FC 601, refd to. [para. 39].

Kane v. Canada (Attorney General) et al. (2011), 413 N.R. 351; 2011 FCA 19, refd to. [para. 41].

Lavigne v. Canada (Minister of Justice) et al. (2009), 352 F.T.R. 269; 2009 FC 684, refd to. [para. 41].

Abi-Mansour v. Canada (Minister of Foreign Affairs) (2013), 443 F.T.R. 22; 2013 FC 1170, affd. [2015] N.R. TBEd. JN.008; 2015 FCA 135, refd to. [para. 45].

Lincoln v. Bay Ferries Ltd. (2004), 322 N.R. 50; 2004 FCA 204, refd to. [para. 54].

Brown v. Commissioner of Correctional Services of Canada, 2011 PSST 0015, refd to. [para. 56].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 92].

McEvoy et al. v. Canada (Attorney General) (2013), 435 F.T.R. 69; 2013 FC 685, refd to. [para. 92].

Abi-Mansour v. Canada (Minister of Aboriginal Affairs), [2014] N.R. Uned. 161; 2014 FCA 272, refd to. [para. 101].

Coombs et al. v. Canada (Attorney General) (2014), 466 N.R. 116; 2014 FCA 222, refd to. [para. 102].

Thibodeau v. Air Canada et al. (2007), 375 N.R. 195; 2007 FCA 115, refd to. [para. 106].

Merck & Co. et al. v. Apotex Inc., [2004] 2 F.C.R. 459; 315 N.R. 175; 2003 FCA 488, refd to. [para. 111].

Indalex Ltd. et al., Re (2013), 439 N.R. 235; 301 O.A.C. 1; 2013 SCC 6, refd to. [para. 112].

Sun Indalex Finance, LLC v. United Steelworkers - see Indalex Ltd. et al., Re.

Jean-Pierre v. Agence des Services Frontaliers du Canada, 2014 FC 637, refd to. [para. 114].

McMeekin v. Canada (Minister of Human Resources and Skills Development), [2011] N.R. Uned. 71; 2011 FCA 165, refd to. [para. 114].

Counsel:

Paul Abi-Mansour, on his own behalf, for the applicant;

Christine Langill, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application and appeal were heard at Ottawa, Ontario, on November 25, 2014, by LeBlanc, J., of the Federal Court, who delivered the following reasons for judgment on July 17, 2015.

To continue reading

Request your trial
15 practice notes
  • Zabihiseasan v. Canada (Attorney General), 2023 FC 1119
    • Canada
    • Federal Court (Canada)
    • August 18, 2023
    ...2017 FCA 65 at para 17; Cadostin v Canada (Attorney General), 2020 FC 183 at para 36; Abi‑Mansour v Canada (Attorney General), 2015 FC 882 at paras 30‑31). Because it is impossible in the circumstances to require the Applicant to file a new affidavit, the Court will not strike......
  • Choudhry v. Canada (Attorney General), 2023 FC 1085
    • Canada
    • Federal Court (Canada)
    • August 9, 2023
    ...or probative value (CBS Canada Holdings Co v Canada, 2017 FCA 65 at para 17; Cadostin at para 36; Abi-Mansour v Canada (Attorney General), 2015 FC 882 at paras [44] It should be noted that Mr. Choudhry is not represented by counsel. Further, it is not possible, at this time in the proceedin......
  • Cadostin v. Canada (Attorney General), 2020 FC 183
    • Canada
    • Federal Court (Canada)
    • January 31, 2020
    ...that the Court should exercise its discretion to give them no weight or probative value (Abi-Mansour v Canada (Attorney General), 2015 FC 882 at paras 30-31). [36] It is well established that the Court may strike all or parts of affidavits where they are abusive or clearly irrelevant, or wh......
  • GCT Canada Limited Partnership v. Vancouver Fraser Port Authority, 2020 FC 348
    • Canada
    • Federal Court (Canada)
    • March 9, 2020
    ...portions or the Court may exercise its discretion to give the evidence only limited weight: Abi-Mansour v. Canada (Attorney General), 2015 FC 882 at para 30. [82] Evidence should only be struck sparingly and in exceptional circumstances, where a party would be materially prejudiced or where......
  • Request a trial to view additional results
14 cases
  • Zabihiseasan v. Canada (Attorney General), 2023 FC 1119
    • Canada
    • Federal Court (Canada)
    • August 18, 2023
    ...2017 FCA 65 at para 17; Cadostin v Canada (Attorney General), 2020 FC 183 at para 36; Abi‑Mansour v Canada (Attorney General), 2015 FC 882 at paras 30‑31). Because it is impossible in the circumstances to require the Applicant to file a new affidavit, the Court will not strike......
  • Choudhry v. Canada (Attorney General), 2023 FC 1085
    • Canada
    • Federal Court (Canada)
    • August 9, 2023
    ...or probative value (CBS Canada Holdings Co v Canada, 2017 FCA 65 at para 17; Cadostin at para 36; Abi-Mansour v Canada (Attorney General), 2015 FC 882 at paras [44] It should be noted that Mr. Choudhry is not represented by counsel. Further, it is not possible, at this time in the proceedin......
  • Cadostin v. Canada (Attorney General), 2020 FC 183
    • Canada
    • Federal Court (Canada)
    • January 31, 2020
    ...that the Court should exercise its discretion to give them no weight or probative value (Abi-Mansour v Canada (Attorney General), 2015 FC 882 at paras 30-31). [36] It is well established that the Court may strike all or parts of affidavits where they are abusive or clearly irrelevant, or wh......
  • GCT Canada Limited Partnership v. Vancouver Fraser Port Authority, 2020 FC 348
    • Canada
    • Federal Court (Canada)
    • March 9, 2020
    ...portions or the Court may exercise its discretion to give the evidence only limited weight: Abi-Mansour v. Canada (Attorney General), 2015 FC 882 at para 30. [82] Evidence should only be struck sparingly and in exceptional circumstances, where a party would be materially prejudiced or where......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT