Agnaou v. Canada (Attorney General), (2014) 463 F.T.R. 15 (FC)

• Judge: Gleason, J.
• Court: Federal Court (Canada)
• Case Date: March 10, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 463 F.T.R. 15 (FC);2014 FC 850

Agnaou v. Can. (A.G.) (2014), 463 F.T.R. 15 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] F.T.R. TBEd. JA.026

Yacine Agnaou (demandeur) v. Le Procureur général du Canada (défendeur)

(T-1391-12; 2014 CF 850; 2014 FC 850)

Indexed As: Agnaou v. Canada (Attorney General)

Federal Court

Gleason, J.

September 5, 2014.

Summary:

Agnaou was a lawyer with the Department of Justice (DOJ). He was also a member of a visible minority. In April 2008, Agnaou applied for two positions with the DOJ that were two levels above his current position. His candidacy was screened out at the initial stage because he lacked the requisite human resources management experience. Agnaou filed a complaint with the Public Service Staffing Tribunal (PSST), alleging that the experience requirement was discriminatory as it adversely affected members of visible minorities, and that the DOJ had abused its authority in the staffing process by ignoring its employment equity obligations. The Vice-Chairperson of the PSST dismissed the complaint. Agnaou applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 504

The hearing and decision - Procedure - Witnesses - [See second Administrative Law - Topic 2266 ].

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Vice-Chairperson (Mooney) of the Public Service Staffing Tribunal (PSST) dismissed a complaint filed by a lawyer (Agnaou) with the Department of Justice (DOJ) - Agnaou applied for judicial review, arguing that an apprehension of bias arose from the fact that Mooney was (a) previously employed by the DOJ and the Public Service Commission, and (b) a technical advisor respecting the 2003 amendments to the Public Service Employment Act (PSEA), and part of the government's delegation before a Parliamentary Committee to answer questions about the amendments - The Federal Court rejected these arguments - Mooney's former employment could not possibly give rise to an apprehension of bias - The PSEA required the Vice-Chairperson of the PSST to have "knowledge of or experience in employment matters in the public service" - This was precisely the sort of expertise that Mooney possessed from his work as an advisor - Mooney's involvement occurred more than five years before Agnaou filed his complaint, and he did not express an opinion on the issues at play in Agnaou's case when he answered questions before the Committee - Further, Agnaou did not ask Mooney to recuse himself even though he was aware of Mooney's background - Failure to do so disentitled Agnaou from alleging bias in the context of a judicial review application - See paragraphs 49 to 60.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - Agnaou, a lawyer with the Department of Justice and a member of a visible minority, filed a complaint with the Public Service Staffing Tribunal (PSST) after he failed to be appointed to two positions that he had applied for - The Vice-Chairperson (Mooney) of the PSST dismissed the complaint - Agnaou applied for judicial review, arguing that an apprehension of bias arose from a comment made by Mooney at the outset of the hearing to the effect that he was surprised by the tenor of the representations made by the Canadian Human Rights Commission (CHRC) - Agnaou alleged that this was evidence of prejudgment by Mooney as the CHRC's representations were favourable to Agnaou's position - The Federal Court rejected this argument - First, the CHRC's submissions merely recapped the legal principles to be applied to a systemic discrimination claim before the PSST, and Mooney did not stray from these principles in his decision - Second, Mooney's surprise at receiving submissions from the CHRC was likely related to the fact that the CHRC had previously indicated that it did not intend to participate in the hearing - Third, the comment fell well short of the types of remarks that had been found to give rise to a reasonable apprehension of bias in the case law - See paragraphs 61 to 63.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - Agnaou, a lawyer with the Department of Justice (DOJ), filed a complaint with the Public Service Staffing Tribunal (PSST) after he failed to be appointed to two positions that he had applied for - Agnaou made a request for witness scheduling in which he made inflammatory comments regarding reprisals he feared the DOJ would impose on witnesses he had subpoenaed - He also made a request to admit documents after the close of the hearing - The Vice-Chairperson (Mooney) of the PSST sought submissions from the employer in response to these requests - The complaint was subsequently dismissed - Agnaou applied for judicial review, arguing that an apprehension of bias arose from Mooney's request for submissions, contrary to the PSST's Procedural Guide - The Federal Court rejected this argument - First, the Procedural Guide did not have the force of law and did not prevent Mooney from seeking submissions if he felt it necessary to do so - Second, Mooney could not be faulted for seeking submissions given the nature of Agnaou's requests - See paragraphs 64 to 68.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Vice-Chairperson (Mooney) of the Public Service Staffing Tribunal dismissed a complaint filed by a lawyer (Agnaou) with the Department of Justice - Agnaou applied for judicial review, arguing that an apprehension of bias arose from the fact that Mooney refused to order a transcript - The Federal Court rejected this argument - The case law firmly recognized that administrative tribunals did not have to provide a transcript or even allow a party to make their own because tribunals were not courts of record - It was common that there be no transcript, especially before labour tribunals, as having one undercut the need for informality and expedition in these sorts of matters - See paragraph 69.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Vice-Chairperson (Mooney) of the Public Service Staffing Tribunal dismissed a complaint filed by a lawyer (Agnaou) with the Department of Justice - Agnaou applied for judicial review, arguing that an apprehension of bias arose from the fact that Mooney refused to reduce his interlocutory rulings to writing - The Federal Court rejected this argument - It was well within the scope of a tribunal's authority over its procedure to decide if it would make interlocutory rulings orally or in writing - The choice of rendering only oral interlocutory rulings did not give rise to a reviewable error - It was typical in labour relations matters for interlocutory rulings to be made orally in order to ensure the expedition of proceedings and to avoid undue formality - See paragraph 70.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - Agnaou, a lawyer with the Department of Justice (DOJ), filed a complaint with the Public Service Staffing Tribunal (PSST) after he failed to be appointed to two positions that he had applied for - A series of emails were exchanged respecting Agnaou's request that counsel for the employer be prohibited from speaking with upcoming witnesses - On one occasion, the Registry of the PSST sent an email to counsel for the DOJ and neglected to copy Agnaou on it - Counsel for the DOJ responded to the email - Agnaou did not learn of the emails until he made a request under the Access to Information Act - The PSST dismissed Agnaou's complaint - Agnaou applied for judicial review, arguing that an apprehension of bias arose from the fact that the PSST received submissions from the employer that were not disclosed to him - The Federal Court rejected this argument - While receipt of submissions from one party that were not shared with another would often give rise to a breach of procedural fairness, there was no such breach here as Agnaou was fully aware of the DOJ's position on the issue of communication with witnesses and had an opportunity to respond to that position before the PSST ruled on the issue - See paragraphs 71 to 76.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Vice-Chairperson (Mooney) of the Public Service Staffing Tribunal (PSST) dismissed a complaint filed by a lawyer (Agnaou) with the Department of Justice (DOJ) - Agnaou applied for judicial review, arguing that the way Mooney conducted the hearing raised a reasonable apprehension of bias because, inter alia, Mooney did not reduce the amount of time for submissions from the DOJ and the Public Service Commission, even though they were allied in interest and ought to have been collectively given no more time than Agnaou was given - The Federal Court rejected this argument - The PSST had a wide range of discretion over the way in which it conducted hearings, which were meant to be informal and expeditious - It was up to the PSST to decide how much time, or page space, to devote to submissions from each party - See paragraphs 77 to 80.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Vice-Chairperson (Mooney) of the Public Service Staffing Tribunal (PSST) dismissed a complaint filed by a lawyer (Agnaou) with the Department of Justice - Agnaou applied for judicial review, arguing that Mooney's hostility toward him during the proceedings raised a reasonable apprehension of bias - The Federal Court rejected this argument - The principal conduct that was alleged to be hostile arose from Aganou's repeated requests for written interlocutory rulings, which he had raised in a lengthy and impolite email to the PSST - Although Mooney had responded with strong language, it was warranted and reasonable - Having sent such an email, and having made repeated challenges to Mooney's rulings, Agnaou should have anticipated a strong response - See paragraphs 77 and 80.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - Agnaou, a lawyer with the Department of Justice (DOJ), filed a complaint with the Public Service Staffing Tribunal (PSST) after he failed to be appointed to two positions that he had applied for - Agnaou sought the production of documents regarding (1) the percentage of employees who were members of visible minorities at the DOJ who were tasked with managing subordinates, and (2) another job posting involving other individuals - The Vice-Chairperson (Mooney) of the PSST refused the requests and ultimately dismissed Agnaou's complaint - Agnaou applied for judicial review, arguing that an apprehension of bias arose from Mooney's refusal to order the production of documents - The Federal Court rejected this argument - Respecting Agnaou's first request, there was no proof that the documents existed, and a party was not required to create documents to respond to a production request - Respecting the second request, it was well within Mooney's authority to find such documents to be irrelevant - Labour boards and decision makers were granted wide freedom in determining the admissibility of evidence - See paragraphs 82 to 85.

Administrative Law - Topic 2088.1

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Prejudgment of matter - [See second Administrative Law - Topic 2088 ].

Administrative Law - Topic 2096

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Waiver - [See first Administrative Law - Topic 2088 ].

Administrative Law - Topic 2158

Natural justice - Administrative decisions or findings - Delay - [See fourth Administrative Law - Topic 2266 ].

Administrative Law - Topic 2208

Natural justice - Policies, rules or guidelines adopted by board or tribunal - Procedural guidelines - [See third Administrative Law - Topic 2088 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - The Vice-Chairperson of the Public Service Staffing Tribunal (PSST) dismissed a complaint filed by a lawyer (Agnaou) with the Department of Justice (DOJ) - Agnaou applied for judicial review, arguing that his procedural fairness rights were denied because the respondents were not ordered to provide written replies that were equally as detailed as the complaint that he filed - The Federal Court rejected this argument - Agnaou did not request more fulsome responses from the respondents, nor did he request an adjournment by reason of any surprise flowing from the unexpected evidence of a DOJ witness or unanticipated arguments from the respondents - In light of this, he could not now argue that the alleged paucity of the respondents' written responses constituted a denial of procedural fairness - Moreover, the replies were sufficiently detailed - The PSST Regulations only required that material facts be pleaded - Although Agnaou chose to set out evidence and legal arguments in his pleadings, there was no requirement for the respondents to do so - See paragraphs 93 and 94.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - The Vice-Chairperson (Mooney) of the Public Service Staffing Tribunal dismissed a complaint filed by a lawyer (Agnaou) with the Department of Justice (DOJ) - Agnaou applied for judicial review, arguing that his procedural fairness rights were denied when Mooney failed to issue an order preventing DOJ counsel from meeting with upcoming witnesses (who were DOJ employees) prior to their testimony - The Federal Court rejected this argument - It was not improper for DOJ counsel to meet with upcoming witnesses provided that he did not disclose the content of the testimony given during the hearing to that point - See paragraphs 95 to 100.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - The Vice-Chairperson (Mooney) of the Public Service Staffing Tribunal dismissed a complaint filed by a lawyer (Agnaou) with the Department of Justice - Agnaou applied for judicial review, arguing that his procedural fairness rights were denied when Mooney refused to accept additional evidence that he sought to tender after the close of the case - The evidence included, inter alia, information about what transpired respecting Agnaou's subsequent candidacy for another position, and positions subsequently held by the successful incumbents in the competition that was the object of Agnaou's complaint - The Federal Court rejected this argument - Labour tribunals were afforded considerable discretion in their assessment of the admissibility of evidence - The excluded evidence was not central to Agnaou's complaint - Accordingly, the rejection of it did not give rise to a violation of procedural fairness - See paragraphs 101 to 105.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - The Vice-Chairperson (Mooney) of the Public Service Staffing Tribunal dismissed a complaint filed by a lawyer (Agnaou) with the Department of Justice - Agnaou applied for judicial review, arguing that his procedural fairness rights were denied by Mooney's delay in issuing a decision - The Federal Court rejected this argument - The 25 months taken by Mooney was not excessive in light of the thousands of pages of material that Agnaou filed and the multiple arguments that he made - See paragraph 106.

Administrative Law - Topic 2486

Natural justice - Procedure - At hearing - Duty to prepare transcript of evidence - [See fourth Administrative Law - Topic 2088 ].

Administrative Law - Topic 2606

Natural justice - Evidence and proof - Receipt of evidence or information after close of hearing - [See third Administrative Law - Topic 2266 ].

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - [See sixth Administrative Law - Topic 2088 ].

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence - New evidence - Agnaou, a lawyer with the Department of Justice, filed a complaint with the Public Service Staffing Tribunal (PSST) after he failed to be appointed to two positions that he had applied for - The Vice-Chairperson of the PSST dismissed the complaint - Agnaou applied for judicial review - The Attorney General argued that an exhibit to Agnaou's affidavit should be struck from the record as it was not before the PSST - The exhibit was a 64 page written argument that Agnaou was not able to file with the PSST because the Vice-Chairperson set a 30 page limit for the parties' written submissions - Agnaou argued that the facts contained in the exhibit had to be admissible because, in the absence of a transcript, there was no other way for him to put before the court the details of the evidence or what transpired before the PSST - The Federal Court found that portions of the exhibit set out facts that were pertinent to Agnaou's claims of procedural defects or set out what he claimed was the testimony before the PSST - This type of evidence was admissible - See paragraphs 12 and 13.

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties - Agnaou, a lawyer with the Department of Justice (DOJ), filed a complaint with the Public Service Staffing Tribunal (PSST) after he failed to be appointed to two positions that he had applied for - The Vice-Chairperson of the PSST dismissed the complaint - Agnaou applied for judicial review - Counsel for the employer argued that Agnaou incorrectly named the Deputy Minister of Justice and the Public Service Commission (PSC) as respondents to the application, and ought to have joined only the Attorney General of Canada - The Federal Court agreed - While it was common practice to name those parties who were adverse in interest to the applicant in a proceeding before the tribunal, the PSC and the Deputy Minister were different from other respondents who were typically so named - The role of the PSC before the PSST was not necessarily one of adversity, and it would not necessarily be impacted by the order sought in the application - The individual who held the position of Deputy Minister was not analogous to the employer or the staffing authority at the DOJ - See paragraphs 9 to 11.

Administrative Law - Topic 8930

Boards and tribunals - Powers - Procedure - [See seventh Administrative Law - Topic 2088 ].

Administrative Law - Topic 8932

Boards and tribunals - Powers - Respecting evidence - [See third Administrative Law - Topic 2266 ].

Administrative Law - Topic 8930.1

Boards and tribunals - Powers - To impose time limits - [See seventh Administrative Law - Topic 2088 ].

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - [See Civil Rights - Topic 983 ].

Civil Rights - Topic 983

Discrimination - Employment - What constitutes discrimination - Agnaou, a lawyer with the Department of Justice (DOJ) and a member of a visible minority, applied for two positions with the DOJ at the LA-3A level - His candidacy was screened out at the initial stage because he lacked the requisite human resources management experience - Agnaou filed a complaint with the Public Service Staffing Tribunal (PSST), alleging that the experience requirement was discriminatory as it adversely affected members of visible minorities - The Vice-Chairperson of the PSST (Mooney) dismissed the complaint - Agnaou applied for judicial review, arguing that Mooney applied the wrong test for discrimination - The Federal Court rejected this argument - After correctly setting out the applicable legal principles, Mooney found that Agnaou had failed to establish (1) that members of visible minorities were under-represented at the LA-3A level; (2) that the impugned qualification negatively impacted members of visible minorities; and (3) the presence of direct discrimination - Agnaou failed to establish any error in Mooney's assessment of his discrimination claim - See paragraphs 117 to 139.

Labour Law - Topic 405

Labour relations boards and judicial review - Boards - General - Duty to act fairly - [See all Administrative Law - Topic 2266 ].

Labour Law - Topic 521

Labour relations boards and judicial review - Powers of board - General - [See seventh Administrative Law - Topic 2088 ].

Labour Law - Topic 527

Labour relations boards and judicial review - Powers of board - To compel production of witnesses and documents - [See ninth Administrative Law - Topic 2088 ].

Labour Law - Topic 579

Labour relations boards and judicial review - Judicial review - General - Preliminary or interlocutory decisions and orders - [See fifth Administrative Law - Topic 2088 ].

Labour Law - Topic 646

Labour relations boards and judicial review - Natural justice - Denial of - Bias - What constitutes - [See all Administrative Law - Topic 2088 ].

Labour Law - Topic 654

Labour relations boards and judicial review - Natural justice - Denial of - Preparation of transcript of evidence - [See fourth Administrative Law - Topic 2088 ].

Labour Law - Topic 656

Labour relations boards and judicial review - Natural justice - Denial of - Evidence - Denial of right to adduce - [See third Administrative Law - Topic 2266 ].

Labour Law - Topic 802

Labour relations boards and judicial review - Procedure - Effect of rules or practice adopted by board - [See third Administrative Law - Topic 2088 ].

Labour Law - Topic 809

Labour relations boards and judicial review - Procedure - Disclosure - [See sixth Administrative Law - Topic 2088 ].

Labour Law - Topic 9176

Public service labour relations - Job competitions - General - Duties of employer - Agnaou, a lawyer with the Department of Justice (DOJ) and a member of a visible minority, applied for two positions with the DOJ that were two levels above his current position - His candidacy was screened out at the initial stage because he lacked the requisite human resources management experience - Agnaou filed a complaint with the Public Service Staffing Tribunal (PSST), alleging that the DOJ had abused its authority in the staffing process by ignoring its employment equity obligations - The Vice-Chairperson of the PSST dismissed the complaint - Agnaou applied for judicial review, arguing that the Vice-Chairperson erred in his interpretation of the knowledge that staffing managers had to have respecting employment equity matters - The Federal Court rejected this argument - It was not necessary for DOJ managers to consult reports tabled before Parliament on employment equity issues or other similar documentation in order to properly discharge their roles in the staffing process - The evidence which was summarized by the Vice-Chairperson showed that the managers considered these issues and were generally aware of the requirements of the Employment Equity Act in staffing actions - See paragraph 116.

Labour Law - Topic 9182

Public service labour relations - Job competitions - General - Employment equity programs - [See Labour Law - Topic 9176 ].

Labour Law - Topic 9184

Public service labour relations - Job competitions - Qualifications of applicant - General - [See first Labour Law - Topic 9193.3 ].

Labour Law - Topic 9193.3

Public service labour relations - Job competitions - General - Appointments - Complaints and investigations - Agnaou, a lawyer with the Department of Justice (DOJ) and a member of a visible minority, applied for two positions with the DOJ at the LA-3A level (two levels above his current position) - His candidacy was screened out at the initial stage because he lacked the requisite human resources management experience (six months within the preceding two years) - Agnaou filed a complaint with the Public Service Staffing Tribunal (PSST) - The Vice-Chairperson of the PSST (Mooney) dismissed the complaint - The Federal Court dismissed Agnaou's application for judicial review - Mooney's decision was reasonable - The two positions that Agnaou applied for were required to manage a number of subordinate employees who were principally lawyers - There was no evidence that the requirement of human resources experience adversely impacted members of visible minorities - Those at Agnaou's level could obtain such experience in LA-2B positions, but Agnaou chose not to apply for several such positions - Rather, he preferred to argue that his academic studies in human resources put him on equal footing with those who had actual management experience, and that refusal of this assertion amounted to an abuse of authority or discrimination - Mooney's conclusion was the only common-sense outcome available on the facts of the case - See paragraphs 140 to 143.

Labour Law - Topic 9193.3

Public service labour relations - Job competitions - General - Appointments - Complaints and investigations - [See all Administrative Law - Topic 2088 , all Administrative Law - Topic 2266 , Civil Rights - Topic 983 , and Labour Law - Topic 9176 ].

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 9193.3 ].

Cases Noticed:

Kim v. Canada (Attorney General) (2014), 453 F.T.R. 91; 2014 FC 369, refd to. [para. 10].

Kraya v. Canada (Attorney General), [2013] F.T.R. Uned. 505; 2013 FC 1045, refd to. [para. 10].

Boshra v. Canada (Attorney General) (2012), 410 F.T.R. 240; 2012 FC 681, refd to. [para. 10].

Seck v. Canada (Attorney General) (2011), 401 F.T.R. 59; 2011 FC 1355, refd to. [para. 10].

Alexander et al. v. Canada (Attorney General) (2011), 399 F.T.R. 161; 2011 FC 1278, refd to. [para. 10].

Kane v. Canada (Attorney General) et al. (2009), 356 F.T.R. 127; 2009 FC 740, refd to. [para. 10].

Smith v. Canada (Attorney General) et al. (2011), 403 F.T.R. 104; 2011 FC 1401, refd to. [para. 10].

Abi-Mansour v. Public Service Commission (Can.), [2014] N.R. Uned. 90; 2014 FCA 60, refd to. [para. 10].

Rameau v. Canadian International Development Agency (2014), 453 F.T.R. 77; 2014 FC 361, refd to. [para. 10].

Abi-Mansour v. Canada (Minister of Foreign Affairs) (2013), 443 F.T.R. 22; 2013 FC 1170, refd to. [para. 10].

Jalal v. Canada (Minister of Human Resources and Skills Development Canada), [2013] F.T.R. Uned. 286; 2013 FC 611, refd to. [para. 10].

Lavigne v. Canada (Minister of Justice) et al. (2009), 352 F.T.R. 269; 2009 FC 684, refd to. [para. 10].

Association of Universities and Colleges of Canada et al. v. Canadian Copyright Licensing Agency (2012), 428 N.R. 297; 2012 FCA 22, refd to. [para. 12].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al. (2001), 274 N.R. 366; 150 O.A.C. 12; 2001 SCC 59, refd to. [para. 16].

Whyte v. Canadian National Railway, 2010 CHRT 6, refd to. [para. 16].

Ontario Human Rights Commission and O'Malley v. Simpson Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, refd to. [para. 18].

Canadian Association of Broadcasters v. Society of Composers, Authors and Music Publishers of Canada et al. (2006), 354 N.R. 310; 2006 FCA 337, refd to. [para. 33].

Via Rail Canada Inc. v. National Transportation Agency et al., [2001] 2 F.C. 25; 261 N.R. 184 (F.C.A.), refd to. [para. 33].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 34].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour) (2003), 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 34].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 34].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 35].

Turner v. Canada (Attorney General) (2012), 431 N.R. 327; 2012 FCA 159, refd to. [para. 35].

LeBon v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 433 N.R. 310; 2012 FCA 132, refd to. [para. 35].

Kane v. Canada (Attorney General) et al. (2011), 413 N.R. 351; 2011 FCA 19, revd on other grounds (2012), 437 N.R. 206; 2012 SCC 64, refd to. [paras. 37, 38].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 38].

Rodger v. Canada (Attorney General) (2013), 449 N.R. 295; 2013 FCA 222, refd to. [para. 38].

Bank of Montreal v. Payne (2013), 443 N.R. 253; 2013 FCA 33, refd to. [para. 38].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 38].

McLean v. British Columbia Securities Commission (2013), 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 38].

Canadian National Railway Co. v. Canada (Attorney General) et al. (2014), 458 N.R. 150; 2014 SCC 40, refd to. [para. 38].

Canada (Attorney General) v. Johnstone et al. (2014), 459 N.R. 82; 2014 FCA 110, refd to. [para. 39].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 44].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134, refd to. [para. 44].

Committee for Justice & Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 46].

Lippé v. Charest - see Lippé et autres v. Québec (Procureur général) et autres.

Lippé et autres v. Québec (Procureur général) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241, refd to. [para. 46].

Zündel v. Citron et al., [2000] 4 F.C. 225; 256 N.R. 201 (F.C.A.), refd to. [para. 47].

Arsenault-Cameron et al. v. Prince Edward Island, [1999] 3 S.C.R. 851; 267 N.R. 386; 201 Nfld. & P.E.I.R. 1; 605 A.P.R. 1, refd to. [para. 47].

Beno v. Létourneau et al., [1997] 2 F.C. 527; 212 N.R. 357 (F.C.A.), refd to. [para. 47].

Arthur v. Canada (Procureur général) (2001), 283 N.R. 346; 2001 FCA 223, refd to. [para. 47].

Es-Sayyid v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 432 N.R. 261; 2012 FCA 59, refd to. [para. 47].

Roberts v. The Queen - see Wewayakum Indian Band v. Canada and Wewayakai Indian Band.

Wewayakum Indian Band v. Canada and Wewayakai Indian Band (2003), 309 N.R. 201; 2003 SCC 45, refd to. [para. 54].

Canada (Attorney General) v. Khawaja (2007), 311 F.T.R. 117; 2007 FC 533, refd to. [para. 54].

Energy and Chemical Workers' Union and Atomic Energy of Canada Ltd., Re, [1986] 1 F.C. 103; 64 N.R. 126 (F.C.A.), refd to. [para. 55].

Haniff v. Canada (Minister of Citizenship and Immigration) (2012), 415 F.T.R. 303; 2012 FC 919, refd to. [para. 55].

Villalobos v. Canada (Minister of Citizenship and Immigration) (1999), 168 F.T.R. 201 (T.D.), refd to. [para. 62].

Milstein v. College of Pharmacy (Ontario) (1978), 87 D.L.R.(3d) 392 (Ont. C.A.), refd to. [para. 62].

Warren v. Labour Relations Board (Ont.) et al. (2011), 285 O.A.C. 185; 2011 ONSC 5848 (Div. Ct.), refd to. [para. 69].

Syndicat canadien de la fonction publique, section locale 301 v. Montréal (Ville), [1997] 1 S.C.R. 793; 210 N.R. 101, refd to. [para. 69].

Clarke Institute of Psychiatry v. ONA (1995), 45 L.A.C.(4th) 284, refd to. [para. 69].

Union of Bank Employees (Ontario), Local 2104 v. Bank of Montreal (1985), 61 di 83 (C.L.R.B.), refd to. [para. 69].

Canadian Air Line Employees' Assn. v. North Canada Air Ltd. (1981), 45 di 134 (C.L.R.B.), refd to. [para. 69].

Cedarvale Tree Services Ltd. v. LIUNA, Local 183, [1971] 3 O.R. 832 (C.A.), refd to. [para. 70].

Komo Construction Inc. v. Quebec (Commission des relations de travail), [1968] S.C.R. 172, refd to. [para. 70].

Canadian Arsenals Ltd. v. Canada (Labour Relations Board), [1979] 2 F.C. 393 (C.A.), refd to. [para. 70].

Gaskin v. Canada Revenue Agency et al. (2013), 444 N.R. 98; 2013 FCA 36, refd to. [para. 70].

Pfizer Canada Inc. et al. v. Mylan Pharmaceuticals ULC et al. (2012), 430 N.R. 326; 100 C.P.R.(4th) 203; 2012 FCA 103, refd to. [para. 76].

Egerton v. Appraisal Institute of Canada (2009), 249 O.A.C. 194; 2009 ONCA 390, refd to. [para. 76].

Prassad v. Minister of Employment and Immigration, [1989] 1 S.C.R. 560; 93 N.R. 81, refd to. [para. 80].

Flamboro Downs Holdings Ltd. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 879 (1979), 99 D.L.R.(3d) 165 (Ont. Div. Ct.), refd to. [para. 80].

R. v. Saskatchewan (Labour Relations Board), [1973] 6 W.W.R. 165, refd to. [para. 80].

British Columbia Public School Employers' Assn. v. BCTF (2012), 227 L.A.C.(4th) 104 (B.C. Arb. Bd.), refd to. [para. 80].

Carbone v. Whidden et al. (2013), 561 A.R. 158; 594 W.A.C. 158; 2013 ABCA 346, refd to. [para. 83].

Dow Chemical Canada Inc. et al. v. Nova Chemicals Corp. (2014), 581 A.R. 382; 2014 ABQB 38, refd to. [para. 83].

Briner v. Briner, [2012] B.C.T.C. Uned. 1545; 2012 BCSC 1545, refd to. [para. 83].

Insurance Council of British Columbia v. Michaels, [2011] B.C.T.C. Uned. 1679; 2011 BCSC 1679, refd to. [para. 83].

Scheuneman v. Canada (Attorney General) (1999), 176 F.T.R. 59 (T.D.), refd to. [para. 84].

Teeluck v. Canada (Treasury Board) (1999), 177 F.T.R. 39 (T.D.), refd to. [para. 84].

Construction Labour Relations Assn. (Alberta) v. Driver Iron Inc. - see Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al.

Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al. (2012), 437 N.R. 202; 539 A.R. 17; 561 W.A.C. 17; 2012 SCC 65, refd to. [para. 88].

Herrera Andrade v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 742; 2012 FC 1490, refd to. [para. 88].

Cojocaru v. British Columbia Women's Hospital and Health Center et al. (2013), 445 N.R. 138; 336 B.C.A.C. 1; 574 W.A.C. 1; 2013 SCC 30, refd to. [para. 88].

Chopra v. Department of National Health and Welfare, 2001 CanLII 8492 (C.H.R.T.), refd to. [para. 90].

O'Callaghan v. R. (1982), 35 O.R.(2d) 394 (H.C.J.), refd to. [para. 98].

United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; 153 N.R. 81; 106 Nfld. & P.E.I.R. 140; 334 A.P.R. 140, refd to. [para. 102].

Université du Québec à Trois-Rivières v. Syndicat des employés professionnels de l'Université du Québec à Trois-Rivières, [1993] 1 S.C.R. 471; 148 N.R. 209; 53 Q.A.C. 171, refd to. [para. 102].

Blencoe v. Human Rights Commission (B.C.) et al. (2000), 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 106].

Canadian Human Rights Commission et al. v. Canada (Minister of National Health and Welfare) (1998), 146 F.T.R. 106; 1998 CanLII 7740 (T.D.), refd to. [para. 119].

Grant v. Manitoba Telecom Services Inc., 2012 CHRT 10, refd to. [para. 119].

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 120].

Action Travail Des Femmes v. Canadian National Railway Co. (1985), 5 CHRR D/2327, affd. [1987] 1 S.C.R. 1114; 76 N.R. 161; 8 C.H.R.R. D/4210, refd to. [para. 123].

Dhaliwal v. B.C. Timber Ltd. (1983), 4 CHRR D/1520, refd to. [para. 123].

Griggs v. Duke Power Co. (1971), 401 U.S. 424, refd to. [para. 131].

Authors and Works Noticed:

Barnacle, Lynk and Wood, Employment Law in Canada (2005-2014) (Looseleaf), ch. 5, p. 50 [para. 122].

Brown, Donald J.M., and Beatty, David M., Canadian Labour Arbitration (2014) (Looseleaf), ch. 3, p. 55 [para. 103].

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2013, 2014) (Looseleaf), ch. 11, pp. 1, 4 [para. 45]; 79 to 82 [para. 55].

Tarnopolsky, Pentney and Gardner, Discrimination and the Law (2004-2014) (Looseleaf), ch. 4, pp. 22 to 26 [para. 119]; ch. 12, pp. 62.54, 62.55 [para. 126].

Counsel:

Yacine Agnaou, on his own behalf, for the applicant;

Michel Girard, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application for judicial review was heard at Montreal, Quebec, on March 10, 2014, before Gleason, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on September 5, 2014.