Gayef v. Canada (Attorney General), 2003 FC 1364

• Judge: Layden-Stevenson, J.
• Court: Federal Court (Canada)
• Case Date: October 08, 2003
• Jurisdiction: Canada (Federal)
• Citations: 2003 FC 1364;(2003), 242 F.T.R. 89 (FC)

Gayef v. Can. (A.G.) (2003), 242 F.T.R. 89 (FC)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. DE.002

Van Gayef (applicant) v. The Attorney General of Canada (respondent)

(T-431-02; 2003 FC 1364)

Indexed As: Gayef v. Canada (Attorney General)

Federal Court

Layden-Stevenson, J.

November 19, 2003.

Summary:

Gayef was unsuccessful in a closed competition for the position of Team Coordinator, Audit at Tax Services in Calgary. Gayef appealed. A Public Service Commission Appeal Board ordered that Gayef be given a second interview to assess personal suitability. After the reassessment, Gayef's marks were still insufficient and he was not included on the eligibility list. Gayef appealed. A second Appeal Board dismissed the appeal, finding that the merit principle had been adhered to in the corrective measures assessment of Gayef's personal suitability. Gayef applied for judicial review. He argued that the personal suitability reassessment was flawed in that it was carried out in a manner different from the assessment of the other candidates (and different from the first assessment of himself) and therefore did not respect the merit principle.

The Federal Court allowed the application and remitted the matter for redetermination before a differently constituted Appeal Board. The court held that the Appeal Board erred where it did not consider all of the relevant issues.

Labour Law - Topic 9193

Public service labour relations - Job competition - General - Appeals - Personal suitability in a closed public service competition was assessed at an interview using behaviour based questions and was subject to adjustment based on a reference check from a supervisor - The reference check asked supervisors questions concerning four areas of personal suitability according to definitions of those areas provided by the selection board - Gayef was unsuccessful because he did not obtain the minimum mark for personal suitability - Gayef appealed - A Public Service Commission Appeal Board ordered that Gayef be given a second interview to assess personal suitability - A role play exercise was used in the corrective measures assessment and the definitions of the four areas of personal suitability were altered - Also, unlike the first time, the reference check comments were evaluated based on the complexity of the examples given by the supervisor - After the reassessment, Gayef's marks were still insufficient and he was not included on the eligibility list - Gayef appealed - The Appeal Board dismissed the appeal, finding that the merit principle had been adhered to - Gayef applied for judicial review - The Federal Court allowed the application - The Appeal Board erred where it failed to consider the changed definitions in the context of the reference check and it failed to assess whether the weight given to the reference letters was comparable to the original competition.

Labour Law - Topic 9203

Public service labour relations - Job competition - General - Merit principle - [See Labour Law - Topic 9193 ].

Cases Noticed:

Canada (Attorney General) v. Greaves et al., [1982] 1 F.C. 806; 40 N.R. 429 (F.C.A.), refd to. [para. 26].

Evans v. Public Service Commission Appeal Board, [1983] 1 S.C.R. 582; 47 N.R. 255, refd to. [para. 28].

Buttar v. Canada (Attorney General) et al. (2000), 254 N.R. 368; 186 D.L.R.(4th) 101 (F.C.A.), refd to. [para. 29].

Stout v. Public Service Commission of Canada, Appeals Branch and Murby (1983), 51 N.R. 68 (F.C.A.), refd to. [para. 30].

Boucher v. Canada (Attorney General) (2000), 252 N.R. 186 (F.C.A.), refd to. [para. 32].

Upadhyaya v. Canada (Attorney General) (2000), 198 F.T.R. 149 (T.D.), refd to. [para. 33].

Hains et al. v. Canada (Attorney General) et al. (2001), 209 F.T.R. 137; 2001 FCT 861, refd to. [para. 33].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 33].

Lai (S.M.) v. Canada (Attorney General) et al. (2001), 208 F.T.R. 67; 2001 FCT 740, refd to. [para. 34].

Maassen et al. v. Canada (Attorney General) et al. (2001), 206 F.T.R. 13; 2001 FCT 633, refd to. [para. 34].

Canada (Attorney General) v. Rogerville (1996), 117 F.T.R. 53 (T.D.), affd. (2001), 270 N.R. 260; 2001 FCA 142, refd to. [para. 34].

Counsel:

Christopher Rootham, for the applicant;

Michael Roach, for the respondent.

Solicitors of Record:

Nelligan O'Brien Payne, Ottawa, Ontario, for the applicant;

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

This application was heard on October 8, 2003, at Ottawa, Ontario, before Layden-Stevenson, J., of the Federal Court, who delivered the following decision on November 19, 2003.