Ng v. Canada (Attorney General), 2008 FC 1298

• Judge: O'Keefe, J.
• Court: Federal Court (Canada)
• Case Date: October 31, 2007
• Jurisdiction: Canada (Federal)
• Citations: 2008 FC 1298;(2008), 338 F.T.R. 298 (FC)

Ng v. Can. (A.G.) (2008), 338 F.T.R. 298 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. JA.026

Christine Ng (applicant) v. Attorney General of Canada (respondent)

(T-2152-06; 2008 FC 1298)

Indexed As: Ng v. Canada (Attorney General)

Federal Court

O'Keefe, J.

November 21, 2008.

Summary:

A decision review officer under the Canada Revenue Agency (CRA) staffing recourse program denied the applicant's request for review of two knowledge examinations taken during an employment competition with the CRA. The applicant applied for judicial review of the officer's decision.

The Federal Court allowed the application and referred the matter to a different officer for redetermination.

Administrative Law - Topic 2272

Natural justice - The duty of fairness - Circumstances or powers to which duty applies (incl. extent of duty) - [See Labour Law - Topic 9202 ].

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - [See Labour Law - Topic 9307 ].

Labour Law - Topic 9202

Public service labour relations - Job selection - General - Application of rules of natural justice - The Federal Court held that the decision review process of the Canada Revenue Agency staffing recourse program fell in the middle to lower end of the spectrum of procedural fairness - See paragraphs 29 to 31.

Labour Law - Topic 9307

Public service labour relations - Judicial review - General - Decisions of reviewer appointed under staffing program - A decision review officer under the Canada Revenue Agency (CRA) staffing recourse program denied the applicant's request for review of two knowledge examinations taken during an employment competition with the CRA - The applicant applied for judicial review - The applicant submitted that the officer violated the rules of procedural fairness by accepting documents entitled "Board Response to Candidate's Request for Decision Review", and failing to disclose them to the applicant so that she could respond to them - The respondent submitted that the applicant was given a meaningful opportunity to put forward her views and that there was no cross-disclosure of submissions under the staffing program - The Federal Court allowed the application, holding that the requirements of procedural fairness were breached in this case - The court stated that "The officer had the necessary discretion to ensure the disclosure of the documents and consequently, prevent a violation of procedural fairness. Thus, while the staffing program itself does not prima facie violate the rules of procedural fairness, in the circumstances of this case, the applicant should have been given the opportunity to respond to the documents from the selection board" - See paragraphs 33 to 36.

Cases Noticed:

Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193, refd to. [para. 13].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 14].

Canadian Broadcasting Corp. v. Paul (2001), 274 N.R. 47 (F.C.A.), refd to. [para. 15].

Professional Institute of the Public Service of Canada v. Canada Customs and Revenue Agency (2004), 251 F.T.R. 56 (F.C.), refd to. [para. 16].

Anderson v. Canada Customs and Revenue Agency (2003), 234 F.T.R. 227 (T.D.), refd to. [para. 18].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 24].

Canada (Attorney General) v. Pépin (2006), 298 F.T.R. 46 (F.C.), refd to. [para. 25].

Beaulieu v. Canada (Attorney General), [2006] F.T.R. Uned. 953; 2006 FC 1308, refd to. [para. 25].

Armstrong v. Canada (Attorney General), [2005] F.T.R. Uned. 613 (F.C.), refd to. [para. 27].

Chrétien v. Gomery et al. (2008), 333 F.T.R. 157 (F.C.), refd to. [para. 28].

Counsel:

Christopher Rootham, for the applicant;

Alexandre Kaufman, for the respondent.

Solicitors of Record:

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

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

This application was heard on October 31, 2007, at Ottawa, Ontario, before O'Keefe, J., of the Federal Court, who delivered the following judgment on November 21, 2008.