Backx v. Canadian Food Inspection Agency et al., (2013) 427 F.T.R. 148 (FC)

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Gagné, J.
• Citation: (2013), 427 F.T.R. 148 (FC),2013 FC 139
• Court: Federal Court (Canada)
• Date: 18 December 2012

Backx v. CFIA (2013), 427 F.T.R. 148 (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: [2013] F.T.R. TBEd. FE.041

Michael Backx (applicant) v. Canadian Food Inspection Agency and Nancy Griffith (respondents)

(T-1793-11; 2013 FC 139; 2013 CF 139)

Indexed As: Backx v. Canadian Food Inspection Agency et al.

Federal Court

Gagné, J.

February 8, 2013.

Summary:

The applicant applied for judicial review of a final level decision by the Canadian Food Inspection Agency (CFIA) dismissing his grievance, which alleged that the list of qualified candidates generated respecting a competition for one internal position should not have been used to staff a different internal position.

The Federal Court, in a decision reported at 368 F.T.R. 247, allowed the application, set aside the decision, and referred the matter back for re-determination by a different final level decision-maker. The CFIA appealed.

The Federal Court of Appeal, in a decision reported at 415 N.R. 37, dismissed the appeal. A new final level decision-maker was appointed to hear the grievance. The grievance was allowed, but the CFIA refused to revoke the appointment of the successful candidate. The applicant applied for judicial review.

The Federal Court allowed the application, set aside the decision, and referred the matter back for re-determination by a different final level decision-maker

Damages - Topic 1064

Mitigation - In particular matters - Labour relations - [See Labour Law - Topic 9261.1].

Labour Law - Topic 9213

Public service labour relations - Job selection - General - Appointment - General - Backx, a veterinarian employed with the Canadian Food Inspection Agency (CFIA), filed a grievance alleging that CFIA should not have used a list of qualified candidates generated respecting a competition for one internal position to staff a different internal position - Backx's grievance was ultimately allowed, but CFIA refused to revoke the appointment of the successful candidate - Backx applied for judicial review - The Federal Court allowed the application - CFIA's right to revoke an impugned appointment following a successful grievance existed as an implied term of the appointment - CFIA was vested with large powers respecting appointments of its employees by virtue of the Canadian Food Inspection Agency Act - There was no compelling justification for CFIA's choice to read down its authority to cancel an appointment so as to include only practices and breaches on the part of appointed candidates - Had the legislature intended to create such an exception, it would have done so in express and unequivocal terms - See paragraphs 31 to 38.

Labour Law - Topic 9261.1

Public service labour relations - Job selection with job competition - Selection process - Remedies - Backx was employed as a veterinarian in the Animal Health division of the Canadian Food Inspection Agency (CFIA) - CFIA also had a Meat Hygiene division - In 2006, CFIA held a competition for a position within the Meat Hygiene division - Backx did not apply - In 2007, CFIA used the list of qualified candidates from the 2006 competition to staff a position in the Animal Health Division - Backx challenged CFIA's decision to use the 2006 list - His grievance was ultimately allowed, but CFIA refused to revoke the appointment of the successful candidate - CFIA offered to allow Backx to be considered in another selection process for positions that might become available - Backx applied for judicial review - The Federal Court allowed the application - CFIA's decision was unreasonable because it was not responsive to Backx's claim and did not provide him with any meaningful remedy - CFIA was obligated to remedy the losses suffered by a more qualified candidate who had successfully grieved against an impugned appointment - Backx's obligation to mitigate his damages did not require him to apply for positions that were not yet available and/or not located in the city that he had worked and lived in for the past 29 years - See paragraphs 21 to 30.

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators, grievance appeal boards or officers - Scope of review (incl. standard) - Backx, a veterinarian employed with the Canadian Food Inspection Agency (CFIA), filed a grievance alleging that CFIA should not have used a list of qualified candidates generated respecting a competition for one internal position to staff a different internal position - Backx's grievance was ultimately allowed, but CFIA refused to revoke the appointment of the successful candidate - CFIA offered to allow Backx to be considered in another selection process for positions that might become available - The Federal Court held that both the revocation of the appointment and the appropriateness of CFIA's corrective action were reviewable against the standard of reasonableness - Revocation of the impugned appointment could not be regarded as an issue of pure law, because CFIA had based its decision on its view of the validity of the appointment and not on its lack of authority in law - The question at issue before the final decision-maker was one of mixed fact and law - The validity and revocability of an appointment involved a fact-based inquiry and hinged on the application of administrative procedures similar to those applicable in other non-adjudicable classification grievances - See paragraphs 14 to 19.

Labour Law - Topic 9354

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators, grievance appeal boards or officers - Unreasonable decisions - [See Labour Law - Topic 9213 and Labour Law - Topic 9261.1].

Cases Noticed:

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. 14].

Canada (Attorney General) v. Mowat (2011), 422 N.R. 248; 2011 SCC 53, refd to. [para. 14].

Macklai v. Canada Revenue Agency (2011), 415 N.R. 44; 2011 FCA 49, refd to. [para. 15].

Assh v. Canada (Attorney General) (2007), 356 N.R. 263; 2006 FCA 358, refd to. [para. 17].

Appleby-Ostroff v. Canada (Attorney General) (2011), 417 N.R. 250; 2011 FCA 84, refd to. [para. 17].

Endicott v. Canada (Treasury Board) (2005), 270 F.T.R. 220; 2005 FC 253, refd to. [para. 17].

Blais v. Canada (Attorney General) (2004), 263 F.T.R. 151; 2004 FC 1638, refd to. [para. 17].

Hagel et al. v. Canada (Attorney General) (2009), 352 F.T.R. 22; 2009 FC 329, affd. (2009), 402 N.R. 104; 2009 FCA 364, refd to. [para. 18].

Peck v. Parks Canada (2010), 359 F.T.R. 136; 2009 FC 686, refd to. [para. 18].

Spencer v. Canada (Attorney General) (2010) 360 F.T.R. 251; 2010 FC 33, refd to. [para. 18].

Messier v. Canada (Solicitor General), [1985] F.C.J. No. 227 (C.A.), refd to. [para. 37].

Forsch v. Canadian Food Inspection Agency et al. (2004), 251 F.T.R. 95; 2004 FC 513, refd to. [para. 38].

Counsel:

Steven Welchner, for the applicant;

Martin Desmeules, for the respondent, Canadian Food Inspection Agency.

Solicitors of Record:

Welchner Law Office, Ottawa, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, Canadian Food Inspection Agency.

This application for judicial review was heard in Ottawa, Ontario, on December 18, 2012, before Gagné, J., of the Federal Court, who delivered the following reasons for judgment on February 8, 2013.