McGregor v. Canada (Attorney General) et al., 2007 FCA 197

• Judge: Linden, Sexton and Ryer, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 02, 2007
• Jurisdiction: Canada (Federal)
• Citations: 2007 FCA 197;(2007), 366 N.R. 206 (FCA)

McGregor v. Can. (A.G.) (2007), 366 N.R. 206 (FCA)

MLB headnote and full text

Temp. Cite: [2007] N.R. TBEd. JN.017

Dale McGregor (appellant) v. Attorney General of Canada, Lynne Lajoie and Susan McKenzie (respondents)

(A-439-06; 2007 FCA 197)

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

Federal Court of Appeal

Linden, Sexton and Ryer, JJ.A.

May 18, 2007.

Summary:

The applicant unsuccessfully participated in a closed competition to staff vacancies within Correctional Service Canada. The applicant appealed pursuant to s. 21 of the Public Service Employment Act (Can.).

The Public Service Commission of Canada Appeal Board dismissed the appeal. The applicant sought judicial review.

The Federal Court, in a decision reported [2006] F.T.R. Uned. 703, dismissed the application. The applicant appealed.

The Federal Court of Appeal dismissed the appeal.

Labour Law - Topic 9193

Public service labour relations - Job competitions - General - Appeals - The Federal Court of Appeal held that an inquiry under s. 21 of the Public Service Employment Act (Can.) was an adversarial proceeding and that the appellant had the burden to establish by evidence that the merit principle was not followed - In the present case, the court agreed that the appellant did not make his case before the Public Service Commission of Canada Appeal Board where, after disclosure pursuant to s. 26 of the Public Service Employment Regulations, he failed to call necessary additional witnesses - See paragraphs 16 to 42.

Labour Law - Topic 9203

Public service labour relations - Job selection - General - Merit principle - The applicant unsuccessfully participated in a closed competition to staff vacancies within Correctional Service Canada - He did not pass a knowledge examination - Therefore, he did not participate in the other elements of the assessment process - The applicant unsuccessfully appealed and then sought judicial review - The applicant submitted that (1) there were inconsistencies in marking the knowledge exam and, (2) the Public Service Commission of Canada Selection Board improperly assessed the abilities and personal suitability characteristics of the candidates, a stage of the selection process in which the applicant did not participate - The review judge dismissed the application, stating that the applicant had the onus of establishing a real possibility that the merit principle was not respected and agreeing that the applicant failed to satisfy his onus of demonstrating the marking inconsistencies - The review judge then found it unnecessary to consider the applicant's second submission - The Federal Court of Appeal upheld the decision but stated that the review judge erred in declining to consider the applicant's second submission - See paragraphs 43 to 53.

Cases Noticed:

Boucher v. Canada (Attorney General) (2000), 252 N.R. 186 (F.C.A.), refd to. [para. 13].

Buttar v. Canada (Attorney General) (2000), 254 N.R. 368 (F.C.A.), refd to. [para. 13].

Chopra et al. v. Canada (Attorney General) (2005), 344 N.R. 143; 2005 FCA 374, refd to. [para. 14].

Davies v. Canada (Attorney General) et al. (2005), 330 N.R. 283; 2005 FCA 41, refd to. [para. 14].

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. 15].

Wiebe v. Public Service Commission Appeal Board (Can.), [1992] 2 F.C. 592; 141 N.R. 387 (F.C.A.), consd. [para. 18].

Blagdon v. Public Service Commission Appeals Board (Can.), [1976] 1 F.C. 615 (F.C.A.), consd. [para. 19].

Leckie et al. v. Canada, [1993] 2 F.C. 473; 151 N.R. 377 (F.C.A.), consd. [para. 20].

Kaczmar v. Canada (Attorney General) (1999), 172 F.T.R. 197 (T.D.), refd to. [para. 21].

Field v. Canada (Attorney General) (1995), 93 F.T.R. 158 (T.D.), consd. [para. 22].

Canada (Attorney General) v. Jeethan et al. (2006), 289 F.T.R. 28; 2006 FC 135, refd to. [para. 24].

Go v. Canada (Attorney General) et al. (2004), 250 F.T.R. 96; 2004 FC 471, refd to. [para. 24].

Charest v. Canada (Attorney General), [1973] F.C. 1217; 2 N.R. 288 (F.C.A.), consd. [para. 28].

Barton and Watkins v. Canada (Attorney General) (1993), 66 F.T.R. 54 (T.D.), consd. [para. 31].

Canada (Attorney General) v. Bozoian, [1983] 1 F.C. 63; 42 N.R. 226 (F.C.A.), consd. [para. 47].

Authors and Works Noticed:

Phipson, Sidney Lovell, The Law of Evidence (16th Ed. 2005), para. 6-06 [paras. 17, 26].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), §§ 3.47, 3.48 [para. 27].

Counsel:

Steven Welchner, for the appellant;

Alexandre Kaufman, for the respondent.

Solicitors of Record:

Welchner Law Office Professional Corporation, Ottawa, Ontario, for the appellant;

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

This appeal was heard at Ottawa, Ontario, on May 2, 2007, by Linden, Sexton and Ryer, JJ.A., of the Federal Court of Appeal. The decision of the Court of Appeal was delivered at Ottawa, Ontario, by Sexton, J.A., on May 18, 2007.