Canada (Attorney General) v. Girouard et al., (2001) 202 F.T.R. 1 (TD)

• Judge: McKeown, J.
• Court: Federal Court (Canada)
• Case Date: Wednesday January 31, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2001), 202 F.T.R. 1 (TD)

Can. (A.G.) v. Girouard (2001), 202 F.T.R. 1 (TD)

MLB headnote and full text

Temp. Cite: [2001] F.T.R. TBEd. MR.006

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

(T-2280-99; 2001 FCT 83)

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

Federal Court of Canada

Trial Division

McKeown, J.

February 15, 2001.

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. 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, holding that the department failed to demonstrate that the test was a bona fide occupational requirement. The Attorney General sought judicial review.

The Federal Court of Canada, Trial Division, allowed the application. The primary purpose of the Appeal Board was to determine whether the successful candidate had been selected in accordance with the merit principle. In this case the Board applied human rights principles to the case and it ignored the merit principle. This was beyond the board's jurisdiction.

Civil Rights - Topic 998

Discrimination - Employment - Exceptions - Bona fide or reasonable occupational requirement or qualification - Girouard competed internally for a position within the RCMP - A timed test was required as part of the interview process - Girouard sought increased time for the test - Accommodation was made for some increased time, but not the amount she requested - She performed poorly on the test - Another candidate was appointed - Girouard appealed the appointment under s. 21 of the Public Service Employment Act - In allowing the appeal, the Public Service Appeal Board concluded that the department failed to demonstrate that the test was a bona fide occupational requirement - Consequently, the merit principle had not been observed - The Attorney General sought judicial review - The Federal Court of Canada, Trial Division, allowed the application - The Appeal Board's primary purpose was to determine whether the successful candidate had been selected in accordance with the merit principle - In this case the Board applied human rights principles to the case and ignored this merit principle - This was beyond the board's jurisdiction - See paragraphs 1 to 32.

Labour Law - Topic 9193.1

Public service labour relations - Job competitions - General - Appeals - Jurisdiction of appeal board - [See Labour Law - Topic 998].

Labour Law - Topic 9203

Public service labour relations - Job competitions - General - Merit principle - Girouard competed internally for a position within the RCMP - Another person was appointed - She appealed the appointment under Public Service Employment Act, s. 21 - The Federal Court of Canada, Trial Division, stated that right of appeal under s. 21 was not aimed at protecting a particular appellant's rights - Rather, it was aimed at preventing an appointment made contrary to the merit principle - "That said, although the primary purpose of the Appeal Board is to decide if the successful candidate has been selected in accordance with the merit principle, it must also ensure that there has been no discrimination under section 12. Unlike the Human Rights Commission, whose focus is the application of human rights principles, the Appeal Board's focus is on the merit principle" - See paragraphs 30 and 31.

Labour Law - Topic 9203

Public service labour relations - Job selection - General - Merit principle - [See Civil Rights - Topic 998].

Labour Law - Topic 9211

Public service labour relations - Job selection - General - Selection standards - Use of tests (incl. confidentiality) - [See Civil Rights - Topic 998].

Labour Law - Topic 9218

Public service labour relations - Job selection - General - Appeal to appeal board - Scope of - [See second Labour Law - Topic 9203].

Cases Noticed:

O'Byrne and Bazley et al., Re, [1971] 3 O.R. 309 (H.C.), refd to. [para. 20].

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, dist. [para. 24].

Blagdon v. Public Service Commission Appeal Board (Can.), [1976] 1 F.C. 615 (F.C.A.), refd to. [para. 28].

MacNeill v. Canada (Attorney General), [1994] 3 F.C. 261; 169 N.R. 368 (F.C.A.), leave to appeal refused (1995), 185 N.R. 157 (S.C.C.), refd to. [para. 32].

Statutes Noticed:

Public Service Employment Act, R.S.C. 1985, c. P-33, sect. 10(1), sect. 12(1), sect. 12(3) [para. 27]; sect. 16(1) [para. 19].

Counsel:

J. Sanderson Graham, for the applicant;

David Yazbeck, for the respondents.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Raven, Allen, Cameron & Ballantyne, Ottawa, Ontario, for the respondents.

This application was heard at Ottawa, Ontario, on January 31, 2001, McKeown, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on February 15, 2001.