Ali v. Canada (Attorney General) et al., (2004) 255 F.T.R. 214 (FC)

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: April 19, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 255 F.T.R. 214 (FC);2004 FC 592

Ali v. Can. (A.G.) (2004), 255 F.T.R. 214 (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: [2004] F.T.R. TBEd. MY.001

Hannat Ali (demandeur) v. Procureur général du Canada, Dee Green et Sandi Wright (défendeurs)

(T-1027-03; 2004 FC 592; 2004 CF 592)

Indexed As: Ali v. Canada (Attorney General) et al.

Federal Court

Shore, J.

April 22, 2004.

Summary:

Ali and three others were interviewed by a three member selection panel for a position. The other three were successful, Ali was not. Ali was the only one interviewed in French. One panel member was insufficiently fluent in French to properly assess Ali, so she sat only as an observer, without participating in the assessment. Ali was not advised. Ali appealed, submitting that the observer member was not sufficiently fluent in French to properly assess his candidacy. The Public Service Commission Appeal Board dismissed the appeal on the ground that since the observer member did not assess Ali, Ali was not prejudiced. Ali sought judicial review.

The Federal Court allowed the application and remitted the matter to the selection board to hold the competition in compliance with the merit principle. The selection panel was required to assess and rank all candidates in a similar manner. Assessment was subjective. Accordingly, the merit principle was violated where all candidates were not interviewed and assessed by the same selection panel.

Labour Law - Topic 9203

Public service labour relations - Job selection - General - Merit principle - Ali and three others were interviewed by a three member selection panel for a position - The other three were successful - Ali was not - Ali was the only one interviewed in French - One panel member was insufficiently fluent in French to properly assess Ali, so she sat as an observer, without participating in the assessment - Ali was not advised - Ali appealed, submitting that the observer member was not sufficiently fluent in French to properly assess his candidacy - The Public Service Commission Appeal Board dismissed the appeal on the ground that since the observer member did not assess Ali, Ali was not prejudiced by her lack of fluency - Ali sought judicial review - The Federal Court allowed the application and remitted the matter to the selection board to hold the competition in compliance with the merit principle - The selection panel was required to assess and rank all candidates in a similar manner - Assessment was subjective - Accordingly, the merit principle was violated where all candidates were not interviewed and assessed by the same three selection panel members - See paragraphs 1 to 24.

Labour Law - Topic 9207

Public service labour relations - Job selection - General - Selection Board members (incl. qualifications or competence) - [See Labour Law - Topic 9203 ].

Cases Noticed:

Boucher et al. v. Canada (Attorney General) (2000), 252 N.R. 186 (F.C.A.), refd to. [para. 14, footnote 5].

Fournier v. Canada (Procureur général) (2000), 188 F.T.R. 258 (T.D.), refd to. [para. 14, footnote 6].

Buttar v. Canada (Attorney General) et al. (2000), 254 N.R. 368 (F.C.A.), refd to. [para. 14, footnote 7].

Upadhyaya v. Canada (Attorney General) (2000), 198 F.T.R. 149 (T.D.), refd to. [para. 15, footnote 8].

Gayef v. Canada (Attorney General) (2003), 242 F.T.R. 89 (F.C.), refd to. [para. 15, footnote 8].

McKinnon v. Public Service Commission Appeal Board (Can.) (1990), 111 N.R. 359 (F.C.A.), refd to. [para. 18, footnote 11].

Brothers v. Canada (Attorney General), [1999] F.T.R. Uned. 786 (T.D.), dist. [para. 19, footnote 12].

Blagdon v. Public Service Commission Appeal Board (Can.), [1976] 1 F.C. 61 (F.C.A.), refd to. [para. 21, footnote 14].

Counsel:

Michelle Flaherty, for the applicant;

Richard Casanova, for the respondent.

Solicitors of Record:

Engelman Gottheil, Ottawa, Ontario, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on April 19, 2004, at Ottawa, Ontario, before Shore, J., of the Federal Court, who delivered the following judgment on April 22, 2004.