Canada (Attorney General) v. Girouard et al.,

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Strayer, Isaac and Sexton, JJ.A.
• Court: Court of Appeal (Canada)
• Citation: (2002), 291 N.R. 289 (FCA),2002 FCA 224
• Date: 29 May 2002

Can. (A.G.) v. Girouard (2002), 291 N.R. 289 (FCA)

MLB headnote and full text

Temp. Cite: [2002] N.R. TBEd. JN.027

Carmel Girouard (appellant) v. The Attorney General of Canada and M.H.F. Gilbert (respondent)

(A-177-01; 2002 FCA 224)

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

Federal Court of Appeal

Strayer, Isaac and Sexton, JJ.A.

May 29, 2002.

Summary:

Girouard competed internally for the posi­tion of Official Languages Coordinator within the RCMP. A timed test was required as part of the interview process. Girouard sought increased time for the test on account of disability. Accommodation was made for some increased time, but not for the amount she requested. Girouard performed poorly on the test. Another candidate was appointed. Girouard appealed the other candidate's appointment under the Public Service Empl­oyment Act, s. 21. The Public Service Appeal Board allowed the appeal. The Attor­ney General sought judicial review.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 202 F.T.R. 1, allowed the application and remitted the mater to a differently constituted appeal board. Girouard appealed.

The Federal Court of Appeal dismissed the appeal.

Civil Rights - Topic 998

Discrimination - Employment - Excep­tions - Bona fide or reasonable occupa­tional requirement or qualification - [See Labour Law - Topic 9218].

Labour Law - Topic 9203

Public service labour relations - Job se­lection - General - Merit principle - [See Labour Law - Topic 9218].

Labour Law - Topic 9218

Public service labour relations - Job selec­tion - General - Appeal to appeal board - Scope of - An unsuccessful candidate at a closed competition for a position with the RCMP appealed the appointment of the successful candidate under s. 21 of the Public Service Employment Act - The Public Service Appeal Board allowed the appeal and concluded that the RCMP selection board failed to demonstrate that an abilities and skills test administered to candidates was a bona fide occupational requirement - A motions judge quashed the decision where the Appeal Board applied human rights principles and failed to apply the merit principle - The Federal Court of Appeal affirmed the decision - The focus of a s. 21 appeal was the enfor­cement of the fundamental principle of the Act that appointments ought to be made on the basis of merit - It was not, per se, to pro­tect the rights of the appellant.

Cases Noticed:

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. 6].

Burke et al. v. Canadian Human Rights Commission (1987), 125 N.R. 239 (F.C.A.), refd to. [para. 11].

Canada (Procureur général) v. Racicot (1997), 136 F.T.R. 111 (T.D.), refd to. [para. 11].

Charest v. Canada (Attorney General), [1973] F.C. 1217 (C.A.), refd to. [para. 12].

Blagdon v. Public Service Commission Appeal Board (Can.), [1976] 1 F.C. 615 (F.C.A.), refd to. [para. 12].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 41(1) [para. 11].

Human Rights Act - see Canadian Human Rights Act.

Public Service Employment Act, R.S.C. 1985, c. P-33, sect. 21(1) [para. 5].

Counsel:

David Yazbeck, for the appellant;

J. Sanderson Graham, for the respondent.

Solicitors of Record:

Raven, Allen, Cameron & Ballantyne, Ottawa, Ontario, for the appellant;

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

This appeal was heard at Ottawa, Ontario, on April 11, 2002, by Strayer, Isaac and Sexton, JJ.A, of the Federal Court of Appeal.

The decision of the Court of Appeal was delivered at Ottawa, Ontario, on May 29, 2002, by Strayer, J.A.