Hughes v. Canada (Attorney General) et al., 2009 FC 573

• Judge: Dawson, J.
• Court: Federal Court (Canada)
• Case Date: April 08, 2009
• Jurisdiction: Canada (Federal)
• Citations: 2009 FC 573;(2009), 348 F.T.R. 216 (FC)

Hughes v. Can. (A.G.) (2009), 348 F.T.R. 216 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. JN.020

Chris Hughes (applicant) v. Attorney General of Canada and Scott Barker, Robert A. Bell, Kirsten Carrier, Angela Chin, Mason Cooke, Mandy Dhudwal, Danielle Getzie, Daniel Greenhalgh, Alison Haycock, Brianna Hewson, Christine Hooper, David Johnson, Laura Keble, Laura Knight, William MacRae, David Roberts, Jessica Shum, Trent Van Helvoirt, Jeffrey Wicharuk (respondents)

(T-1167-07; 2009 FC 573)

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

Federal Court

Dawson, J.

June 8, 2009.

Summary:

The applicant was found not to be qualified for selection into a pre-qualified pool of candidates for appointment to Customs Inspector, PM-02 positions at the Vancouver International Airport, the Metro Vancouver District and the Pacific Highway District (Vancouver pre-qualified pool). As a result, the applicant filed a complaint under the former Public Service Employment Act (Act) with the Public Service Commission concerning the Vancouver pre-qualified pool. An investigator concluded that the applicant's complaint was well-founded for two reasons: "1. The selection process was not conducted in a manner which conformed to the merit principle because two of the qualifications established at the outset by the hiring manager were never assessed." and "2. The selection board failed to apply its own instructions to the candidates with respect to verifying whether their written submissions were received on time, leaving open the possibility that candidates who should have been eliminated from the selection process were appointed." Other aspects of the applicant's complaint were held to be unfounded. The Commission accepted the findings of the investigator and ordered the following corrective measures be taken: "that [Canada Border Services Agency] provide to the Commission evidence of the assessment, at the time of the reclassification, of the qualifications of the current employees who were appointed from the pre-qualified pool and whose positions were reclassified from PM-02 Customs Inspector positions to the PM-03 Border Services Officer positions. This evidence must be provided to the Vice-President of the Investigations Branch, Public Service Commission, within thirty (30) days following the date of this Record of Decision;" and "should it become necessary, that the appointment of the individuals who fail to be found qualified will be revoked within sixty (60) days following the date of this Record of Decision." The applicant applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (consideration incl. bias) - Bias - The applicant was found not to be qualified for selection into a pre-qualified pool of candidates for appointment to Customs Inspector, PM-02 positions at the Vancouver International Airport, the Metro Vancouver District and the Pacific Highway District (Vancouver pre-qualified pool) - As a result, the applicant filed a complaint under the former Public Service Employment Act (Act) with the Public Service Commission concerning the Vancouver pre-qualified pool - An investigator concluded that the applicant's complaint was well-founded - The Commission accepted the investigator's findings and ordered corrective measures - The applicant applied for judicial review, asserting that certain employees of the Commission were biased against him - The applicant asserted that the decision to remove him from the corrective measures when he had been included in the proposal was motivated by bias - The Federal Court dismissed the application - The applicant adduced no evidence in support of his allegations of bias - He relied on inferences drawn from his interpretation of the documents before the court - The evidence fell short of establishing bias, either real or perceived - The fact that the proposed corrective measures were amended to delete the proposal that the candidacy of every person be reconsidered did not by itself establish any perception of bias - The reasons for this deletion were explained in a credible fashion in both the briefing note and the Commission's reasons - The absence of personal relief did not by itself establish any apprehension of bias - See paragraphs 39 to 44.

Labour Law - Topic 9321

Public service labour relations - Judicial review - Decisions of board or commission - General - The applicant was found not to be qualified for selection into a pre-qualified pool of candidates for appointment to Customs Inspector, PM-02 positions at the Vancouver International Airport, the Metro Vancouver District and the Pacific Highway District (Vancouver pre-qualified pool) - As a result, the applicant filed a complaint under the former Public Service Employment Act (Act) with the Public Service Commission concerning the Vancouver pre-qualified pool - An investigator concluded that the applicant's complaint was well-founded - The Commission accepted the investigator's findings and ordered corrective measures - The applicant applied for judicial review, asserting that the corrective measures ordered by the Commission be set aside due to undue delay - The investigation was concluded on May 31, 2006 - The Commission's decision was delivered on June 13, 2007 - The Federal Court dismissed the application - There was no abuse of process by delay per se - The party relying on delay had to demonstrate that the delay was "so oppressive as to taint the proceedings" - Any delay in this case did not rise to this exceptional threshold - First, the Commission was dealing with relatively complex circumstances - Second, while the investigator found that the applicant's complaint was well-founded for two reasons, the applicant's allegations of improper disqualification and bias were found to be unfounded - The applicant had not established that the delay was so oppressive as to taint the proceedings - See paragraphs 27 to 38.

Labour Law - Topic 9321

Public service labour relations - Judicial review - Decisions of board or commission - General - The applicant was found not to be qualified for selection into a pre-qualified pool of candidates for appointment to Customs Inspector, PM-02 positions at the Vancouver International Airport, the Metro Vancouver District and the Pacific Highway District (Vancouver pre-qualified pool) - As a result, the applicant filed a complaint under the former Public Service Employment Act (Act) with the Public Service Commission concerning the Vancouver pre-qualified pool - An investigator concluded that the applicant's complaint was well-founded for two reasons: "1. The selection process was not conducted in a manner which conformed to the merit principle because two of the qualifications established at the outset by the hiring manager were never assessed." and "2. The selection board failed to apply its own instructions to the candidates with respect to verifying whether their written submissions were received on time, leaving open the possibility that candidates who should have been eliminated from the selection process were appointed." - Other aspects of the applicant's complaint were held to be unfounded - The Commission accepted the investigator's findings of the investigator and ordered the following corrective measures be taken: "that [Canada Border Services Agency] provide to the Commission evidence of the assessment, at the time of the reclassification, of the qualifications of the current employees who were appointed from the pre-qualified pool and whose positions were reclassified from PM-02 Customs Inspector positions to the PM-03 Border Services Officer positions. This evidence must be provided to the Vice-President of the Investigations Branch, Public Service Commission, within thirty (30) days following the date of this Record of Decision;" and "should it become necessary, that the appointment of the individuals who fail to be found qualified will be revoked within sixty (60) days following the date of this Record of Decision." - The applicant applied for judicial review - The Federal Court dismissed the application - The corrective measures ordered by the Commission were reasonable - See paragraphs 45 to 71.

Cases Noticed:

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 19].

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. 20].

Harquail v. Public Service Commission (Can.) (2004), 264 F.T.R. 181; 2004 FC 1549, refd to. [para. 24].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 31].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 41].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 41].

Arthur v. Canada (Procureur général) (2001), 283 N.R. 346; 2001 FCA 223, refd to. [para. 41].

Lo v. Public Service Commission Appeal Board (Can.) et al. (1997), 222 N.R. 393 (F.C.A.), refd to. [para. 43].

Still v. Minister of National Revenue, [1998] 1 F.C. 549; 221 N.R. 127 (F.C.A.), refd to. [para. 60].

Murray v. Public Service Commission, [1987] F.C.J. No. 473 (F.C.A.), refd to. [para. 61].

McAuliffe v. Canada (Attorney General) (1997), 128 F.T.R. 39 (T.D.), refd to. [para. 66].

Gariepy v. Federal Court of Canada (Administrator) et al., [1989] 2 F.C. 353; 24 F.T.R. 216 (T.D.), refd to. [para. 68].

Authors and Works Noticed:

Caron, Renée, Employment in the Federal Public Service (2006) (Looseleaf Supp.), para. 6:3740 [para. 71].

Counsel:

Chris Hughes, on his own behalf;

Graham Stark, for the respondents.

Solicitors of Record:

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

This application was heard on April 8, 2009, at Vancouver, British Columbia, by Dawson, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on June 8, 2009.