Lai (S.M.) v. Canada (Attorney General) et al., (2001) 208 F.T.R. 67 (TD)

• Judge: Blanchard, J.
• Court: Federal Court (Canada)
• Case Date: May 14, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2001), 208 F.T.R. 67 (TD)

Lai v. Can. (A.G.) (2001), 208 F.T.R. 67 (TD)

MLB headnote and full text

Temp. Cite: [2001] F.T.R. TBEd. JL.052

Siu M. Lai (applicant) v. The Attorney General of Canada, Frank Cannataro, Derek Chibba, Wing Chu, Joe DiChiara, John Golla, Jean Marc Guinard, Imran Khan, Raymond Lazzara, Anup Liladhar, Winston Lim, Ann Mayo, Leo Merwiak, John Nowoselski, and Salvatore Tringali (respondents)

(T-1005-99; 2001 FCT 740)

Indexed As: Lai (S.M.) v. Canada (Attorney General) et al.

Federal Court of Canada

Trial Division

Blanchard, J.

July 3, 2001.

Summary:

The Public Service Commission Appeal Board dismissed Lai and other candidates' appeal pursuant to s. 21 of the Public Service Employment Act against selections for appointment made following a closed job competition. Lai sought judicial review.

The Federal Court of Canada, Trial Division, dismissed the application.

Administrative Law - Topic 224

The hearing and decision - Right to be heard - What constitutes being heard - The Public Service Commission Appeal Board dismissed Lai's appeal pursuant to s. 21 of the Public Service Employment Act against selections for appointment made following a closed job competition - Lai sought judicial review - Lai argued that the Appeal Board had refused to allow Lai and one of his witnesses, who both had already testified, an opportunity to offer further testimony, thereby denying Lai a reasonable opportunity to be heard - The Federal Court of Canada, Trial Division, rejected the argument - The Appeal Board committed no reviewable error in the exercise of its discretion respecting this matter - The principles of fairness did not require an Appeal Board that had already given an appellant a reasonable opportunity to be heard an unlimited right for such opportunity - See paragraphs 41 to 49.

Administrative Law - Topic 2494

Natural justice - Procedure - At hearing - Opportunity to present evidence - [See Administrative Law - Topic 224 ].

Labour Law - Topic 9261

Public service labour relations - Job selection with job competition - Selection process - Appeals - The Public Service Commission Appeal Board dismissed Lai's appeal pursuant to s. 21 of the Public Service Employment Act against selections for appointment made following a closed job competition - Lai sought judicial review - He argued that the Appeal Board erred in law by reviewing the decision of the Selection Board against the wrong standard of review - The Federal Court of Canada, Trial Division, concluded that the Appeal Board applied the correct standard of review - It ultimately found that the Selection Board's decisions and actions were reasonable - See paragraphs 22 to 35.

Cases Noticed:

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1; [1994] 7 W.W.R. 1; 92 B.C.L.R.(2d) 145; 14 B.C.R.(2d) 217; 22 Admin. L.R.(2d) 1; 114 D.L.R.(4th) 385, refd to. [para. 15].

Superintendent of Brokers v. Pezim - see Pezim v. British Columbia Securities Commission et al.

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 15].

Archer v. Luterbach (2001), 199 F.T.R. 96 (T.D.), refd to. [para. 17].

Charest v. Canada (Attorney General), [1973] F.C. 1217; 2 N.R. 288 (F.C.A.), refd to. [para. 23].

Scarizzi v. Marinaki (1994), 87 F.T.R. 66 (T.D.), refd to. [para. 24].

Hassall et al. v. Canada (Attorney General) (1999), 162 F.T.R. 295 (T.D.), refd to. [para. 38].

Caldwell et al. v. Public Service Commission et al. (1978), 25 N.R. 458 (F.C.A.), refd to. [para. 39].

Wiebe v. Public Service Commission Appeal Board (Can.) (1992), 141 N.R. 387; 5 Admin. L.R.(2d) 108 (F.C.A.), refd to. [para. 48].

Wiebe v. R. - see Wiebe v. Public Service Commission Appeal Board (Can.).

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 51].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 52].

Counsel:

Sui M. Lai, on his own behalf;

J. Sanderson Graham, for the respondent.

Solicitors of Record:

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

This application was heard in Toronto, Ontario, on May 14, 2001, before Blanchard, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on July 3, 2001.