Canada (Attorney General) v. East, 2008 FC 1295

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: November 04, 2008
• Jurisdiction: Canada (Federal)
• Citations: 2008 FC 1295;(2008), 338 F.T.R. 268 (FC)

Can. (A.G.) v. East (2008), 338 F.T.R. 268 (FC)

MLB headnote and full text

[French language version follows English language version]

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

.........................

Temp. Cite: [2009] F.T.R. TBEd. JA.018

Procureur général du Canada (demandeur) v. Michel East (défendeur)

(T-641-07; 2008 CF 1295; 2008 FC 1295)

Indexed As: Canada (Attorney General) v. East

Federal Court

Shore, J.

November 28, 2008.

Summary:

The Correctional Service of Canada (CSC) issued a competition for correctional supervisor positions. East submitted his application. The candidates were invited to complete a Knowledge test on March 14, 2005. East made a written request to defer the competition. The Selection Board denied his request but invited East to write the test on March 21, 2005. East made a second request to defer the competition. He did not attend the second Knowledge test. His request for deferral was denied. East appealed to the Appeal Board of the Investigations Branch of the Public Service Commission on the basis that the Selection Board had violated the merit principle in excluding him from the competitions he had entered. The Appeal Board allowed the appeal. The Attorney General applied for judicial review.

The Federal Court allowed the application and remitted the matter to a differently constituted panel of the Appeal Board for reconsideration.

Labour Law - Topic 9203

Public service labour relations - Job selection - General - Merit principle - The Correctional Service of Canada (CSC) issued a competition for correctional supervisor positions - East submitted his application - The candidates were invited to complete a Knowledge test on March 14, 2005 - East made a written request to defer the competition - The Selection Board denied his request but invited East to write the test on March 21, 2005 - East made a second request to defer the competition - He did not attend the second Knowledge test - His request for deferral was denied - East appealed to the Appeal Board of the Investigations Branch of the Public Service Commission on the basis that the Selection Board had violated the merit principle in excluding him from the competitions he had entered - The Appeal Board allowed the appeal - The Attorney General applied for judicial review - The Federal Court allowed the application - The court stated that "the Appeal Board erred in deciding that the Selection Board did not comply with the merit principle because it breached the duty to reasonably accommodate Mr. East. It was open to the Selection Board to find that delaying the test for Mr. East by more than a week created a risk that information about the test questions would be leaked and might therefore interfere with the merit principle. The Appeal Board's findings were not reasonably supported by the evidence. In addition, the Appeal Board made a patently unreasonable finding of fact when it stated that Mr. East's delay in notifying the Selection Board was justified. Although Mr. East may have had good reasons for requesting accommodation, he did not demonstrate that he had good reasons for his delay in notifying the Selection Board. Without a convincing reason, the Selection Board had no duty to accommodate in response to a late request".

Cases Noticed:

Tremblay v. Canada (Attorney General) et al. (2003), 232 F.T.R. 138; 2003 FCT 466, refd to. [para. 1].

Canada (Attorney General) v. Girouard et al. (2002), 291 N.R. 289; 2002 FCA 224, refd to. [para. 2].

Charest v. Canada (Attorney General), [1973] F.C. 1217; 2 N.R. 288 (F.C.A.), refd to. [para. 2].

Blagdon v. Public Service Commission Appeals Board (Can.), [1976] 1 F.C. 615 (F.C.A.), refd to. [para. 2].

McGregor v. Canada (Attorney General) et al. (2007), 366 N.R. 206; 2007 FCA 197, refd to. [para. 2].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 27].

Davies v. Canada (Attorney General) et al. (2005), 330 N.R. 283; 2005 FCA 41, refd to. [para. 28].

Canada (Attorney General) v. Clegg (2008), 380 N.R. 275; 168 A.C.W.S.(3d) 109; 2008 FCA 189, refd to. [para. 28].

Cyr et al. v. Canada (Procureur général) (2000), 201 F.T.R. 191 (T.D.), refd to. [para. 31].

Counsel:

Pascale O'Bomsawin, for the applicant;

Paul Deschênes, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Pépin and Roy, Montreal, Quebec, for the respondent.

This application was heard on November 4, 2008, at Montreal, Quebec, by Shore, J., of the Federal Court, who delivered the following judgment on November 28, 2008.