Ciebien v. Canada (Attorney General), 2005 FC 167

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: September 21, 2004
• Jurisdiction: Canada (Federal)
• Citations: 2005 FC 167;(2005), 271 F.T.R. 90 (FC)

Ciebien v. Can. (A.G.) (2005), 271 F.T.R. 90 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. FE.023

David G. Ciebien (applicant) v. The Attorney General of Canada (respondent)

(T-2468-03; 2005 FC 167)

Indexed As: Ciebien v. Canada (Attorney General)

Federal Court

Mosley, J.

February 3, 2005.

Summary:

The Correctional Service of Canada advertised a competition for a Regional Comptroller position with a closing date of August 31, 2001. Ciebien applied before the deadline. On September 4, 2001, the deadline for applications was extended to September 14, 2001. The candidate who was ultimately successful applied on September 12, 2001. Ciebien appealed the appointment. The Appeal Board found that it lacked jurisdiction to hear Ciebien's complaint. By consent, the Federal Court overturned that decision and ordered a new hearing. The second Appeal Board dismissed Ciebien's complaint. Ciebien applied for judicial review.

The Federal Court allowed Ciebien's application and remitted the matter for rehearing before a differently constituted Appeal Board.

Administrative Law - Topic 225

The hearing and decision - Right to be heard - What constitutes not being heard - Ciebien applied for a position with the Correctional Service of Canada - Another candidate was hired - Ciebien appealed the appointment - The Appeal Board found that it lacked jurisdiction - By consent, the Federal Court ordered a rehearing - Ciebien filed an amended statement of allegations - The second Appeal Board did not allow Ciebien to address allegations and facts from the first hearing, including facts relating to Ciebien's disability, that were not in the amended statement - Ciebien applied for judicial review - The Federal Court held that it was not reasonable for the Appeal Board to disallow Ciebien's evidence regarding his disability as it had accepted evidence from the respondent that related to the same condition - See paragraphs 13 to 25.

Administrative Law - Topic 350

The hearing and decision - Nature or extent of the hearing - Opportunity to present evidence - [See Administrative Law - Topic 225 ].

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - Ciebien applied for a position with the Correctional Service of Canada - Another candidate was hired - Ciebien appealed the appointment - The Appeal Board found that it lacked jurisdiction - By consent, the Federal Court ordered a rehearing - At the rehearing, Ciebien alleged that the Selection Board showed actual bias against him throughout the staffing process - The second Appeal Board dismissed Ciebien's application - Ciebien sought judicial review on the basis of (1) actual bias in the Appeal Board's refusal to allow him to present all of his allegations and evidence and from the manner in which he was treated and (2) the appearance of bias arising out of conversations that the Appeal Board Chairperson had with the departmental representative while Ciebien was out of the room - The Federal Court allowed the application and remitted the matter for a new hearing before a differently constituted board - There was no actual bias - The Appeal Board properly dealt with most of the pertinent issues and was not predisposed to decide against Ciebien's application - There was an appearance of bias - The tone of the proceedings and the ex parte discussions between the Chairperson and the departmental representative raised a reasonable apprehension of bias - See paragraphs 58 to 68.

Administrative Law - Topic 2493

Natural justice - Procedure - At hearing - Right to make submissions - [See Administrative Law - Topic 225 ].

Administrative Law - Topic 9129

Boards and tribunals - Administrative appeals - Duty of appellate body to act fairly - [See Administrative Law - Topic 2088 ].

Labour Law - Topic 9183

Public service labour relations - Job competitions - General - Rules and procedure for competitions - Nature and effect of - The Correctional Service of Canada advertised a competition for a Regional Comptroller position with a closing date of August 31, 2001 - Ciebien applied before the deadline - On September 4, 2001, the deadline for applications was extended to September 14, 2001 - The candidate who was ultimately successful applied on September 12, 2001 - Ciebien appealed the appointment - The Appeal Board found that it lacked jurisdiction to hear Ciebien's complaint - By consent, the Federal Court overturned that decision and ordered a new hearing - At the rehearing, Ciebien argued that the extension of the dealine was unfair and that people who applied after the original cut-off should have been excluded - The Appeal Board found that issuing a second or amended poster did not violate the merit principle or any provision of the relevant act or regulations - Ciebien sought judicial review - The Federal Court found that the legislation was silent regarding the authority to extend a time period - The object of the merit principle was to find the best candidates for any position - Beginning the selection process with a larger pool supported the merit principle and management should be allowed some flexibility - The Appeal Board's conclusions on this point were neither unreasonable nor incorrect in law - See paragraphs 26 to 37.

Labour Law - Topic 9187.1

Public service labour relations - Job competitions - General - Examinations and interviews - General - Ciebien applied for a position with the Correctional Service of Canada - He indicated on his application that he had a disability but did not provide details - When the department contacted him prior to the interview to discuss accommodation, he did not respond - Another candidate was hired - Ciebien appealed the appointment - The first Appeal Board found that it lacked jurisdiction - By consent, the Federal Court ordered a rehearing - At the rehearing, Ciebien argued that his poor performance during part of the Selection Board interview was attributable to his disability and that the Selection Board failed to accommodate this - The Appeal Board did not accept Ciebien's allegations with respect to failure to accommodate - Ciebien did not inform the department of the nature of his disability or means by which he could be accommodated - The Selection Board members were not aware of the disability - Ciebien sought judicial review - The Federal Court found no error of law or patently unreasonable finding of fact in the Appeal Board's conclusion - See paragraphs 50 to 57.

Labour Law - Topic 9203

Public service labour relations - Job selection - General - Merit principle - Ciebien applied for a position with the Correctional Service of Canada - The candidate who was hired failed one question each in knowledge and ability, though she received passing marks for each qualification cumulatively - Ciebien appealed the appointment - The Appeal Board found that it lacked jurisdiction - By consent, the Federal Court ordered a rehearing - At the rehearing, Ciebien submitted that the Selection Board had breached the merit principle by failing to require the successful candidate to pass each sub-qualification - The Appeal Board dismissed the appeal finding that the merit principle did not require that the successful candidate had to succeed on each sub-factor within a posted qualification - Ciebien sought judicial review - The Federal Court held that the Appeal Board did not err in law in its decision regarding the merit principle - See paragraphs 44 to 49.

Labour Law - Topic 9203

Public service labour relations - Job selection - General - Merit principle - [See Labour Law - Topic 9183 ].

Labour Law - Topic 9210

Public service labour relations - Job selection - Selection standards - Application of - Ciebien applied for a position with the Correctional Service of Canada - Another candidate was hired - Ciebien appealed the appointment - The Appeal Board found that it lacked jurisdiction - By consent, the Federal Court ordered a rehearing - At the rehearing, Ciebien argued that the successful candidate should have been screened out because she lacked extensive experience and that the pass mark of 50% for knowledge was unreasonable because it would pass candidates who were below the point of being fully satisfactory - The Appeal Board dismissed the appeal finding that the definition of "extensive" and the pass mark for knowledge were up to the Selection Board - The Selection Board reasonably found that Ciebien's responses were unsatisfactory and the candidate who was hired was qualified - Ciebien applied for judicial review - The Federal Court found no grounds on which to interfere with the conclusions of the Appeal Board - The Appeal Board properly upheld the Selection Board's findings and should be given considerable deference - See paragraphs 38 to 43.

Labour Law - Topic 9257

Public service labour relations - Job selection with job competition - Selection process - Relevant considerations in determining merit of candidates - [See Labour Law - Topic 9183 and first Labour Law - Topic 9203 ].

Cases Noticed:

Koulamallah v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2003] F.T.R. Uned. 584; 2003 FC 1043, refd to. [para. 11].

Gitxsan Treaty Society v. Hospital Employees' Union et al., [2000] 1 F.C. 135; 249 N.R. 37 (F.C.A.), refd to. [para. 12].

Ontario Association of Architects v. Association of Architectural Technologists of Ontario, [2003] 1 F.C. 331; 291 N.R. 61 (F.C.A.), refd to. [para. 12].

Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195; 316 N.R. 299 (F.C.A.), refd to. [para. 15].

Canada (Minister of Citizenship and Immigration) v. Dhaliwal-Williams (1997), 131 F.T.R. 19 (T.D.), refd to. [para. 23].

Mobil Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; 163 N.R. 27; 115 Nfld. & P.E.I.R. 334; 360 A.P.R. 334, refd to. [para. 24].

Dyker v. Canada (Public Service Commission Appeal Board), [1978] F.C.J. No. 912 (F.C.A.), dist. [para. 30].

Allard v. Public Service Commission, [1982] 1 F.C. 432 (F.C.A.), dist. [para. 30].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 46].

Carty et al. v. Canada (Attorney General) et al. (2004), 327 N.R. 256; 35 C.C.E.L.(3d) 92 (F.C.A.), refd to. [para. 47].

Mercer et al. v. Canada (Attorney General) et al. (2004), 327 N.R. 263; 35 C.C.E.L.(3d) 92 (F.C.A.), refd to. [para. 47].

Canada (Attorney General) v. Bates, [1997] 3 F.C. 132; 129 F.T.R. 61 (T.D.), refd to. [para. 52].

Renaud v. Board of Education of Central Okanagan No. 23 and Canadian Union of Public Employees, Local 523, [1992] 2 S.C.R. 970; 141 N.R. 185; 13 B.C.A.C. 245; 24 W.A.C. 245, refd to. [para. 53].

Arthur v. Canada (Procureur général) (2001), 283 N.R. 346 (F.C.A.), refd to. [para. 64].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 66].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1, refd to. [para. 66].

Satiacum v. Minister of Employment and Immigration, [1985] 2 F.C. 430; 64 N.R. 358, refd to. [para. 66].

Statutes Noticed:

Public Service Employment Act, R.S.C. 1985, c. P-33, sect. 16(1) [para. 28].

Public Service Employment Act Regulations (Can.), Public Service Employment Regulations, SOR/2000-80, sect. 8(1) [para. 29].

Public Service Employment Regulations - see Public Service Employment Act Regulations (Can.).

Counsel:

David G. Ciebien, represented himself;

Michael Roach, for the respondent.

Solicitors of Record:

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

This application was heard on September 21, 2004, at Ottawa, Ontario, before Mosley, J., of the Federal Court, who delivered the following judgment on February 3, 2005.