Tremblay v. Canada (Attorney General) et al., (2003) 232 F.T.R. 138 (TD)

• Judge: Kelen, J.
• Court: Federal Court (Canada)
• Case Date: April 09, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 232 F.T.R. 138 (TD)

Tremblay v. Can. (A.G.) (2003), 232 F.T.R. 138 (TD)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. AP.067

Michel Tremblay (applicant) v. The Attorney General of Canada and Martin Tremblay (respondents)

(T-1201-01; 2003 FCT 466)

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

Federal Court of Canada

Trial Division

Kelen, J.

April 22, 2003.

Summary:

Tremblay suffered from multiple sclerosis. He was given special accommodations for the written examination in a competition for a position with the Transportation Safety Board of Canada. Tremblay appealed under s. 21 of the Public Service Employment Act from the appointment of the successful candidate. An Appeal Board dismissed the appeal. Tremblay applied for judicial review of the Appeal Board's decision.

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

Administrative Law - Topic 2641

Natural justice - Evidence - Admission of - General - Tremblay suffered from multiple sclerosis (MS) - He was given special accommodations for the written examination in a competition for a position with the Transportation Safety Board of Canada - Tremblay appealed under s. 21 of the Public Service Employment Act from the appointment of the successful candidate - The Appeal Board accepted into evidence a summary of the Krupp report, which supported Tremblay's view that persons who suffered from MS were at a significant disadvantage if given a written exam containing true/false or multiple-choice questions - Tremblay later obtained a copy of the full Krupp report, but the Appeal Board refused to enter it as evidence - The Appeal Board dismissed Tremblay's appeal - Tremblay applied for judicial review, arguing that the Appeal Board breached the rules of natural justice by excluding the Krupp report - The Federal Court of Canada, Trial Division, rejected the argument - In light of the lateness of the request and the fact that a summary had already been provided, the Appeal Board properly exercised its discretion to exclude the report - Between the Krupp report summary and a psychologist's testimony, the Appeal Board had a wealth of evidence concerning the difficulties faced by MS patients - See paragraphs 43 to 47.

Labour Law - Topic 9176

Public service labour relations - Job competitions - General - Duties of employer - Tremblay suffered from multiple sclerosis - He was given special accommodations for the written examination in a competition for a position with the Transportation Safety Board of Canada (TSB) - Tremblay appealed under s. 21 of the Public Service Employment Act from the appointment of the successful candidate - An Appeal Board dismissed the appeal, finding that the TSB had conducted the selection process in accordance with the merit principle - Tremblay applied for judicial review - He argued that the Appeal Board should have required the TSB to demonstrate that it was impossible to accommodate him without undue hardship - The Federal Court of Canada, Trial Division, rejected the argument - The standard suggested by Tremblay was not an appropriate yardstick for an appeal based on the merit principle - See paragraphs 20 to 25.

Labour Law - Topic 9176

Public service labour relations - Job competitions - General - Duties of employer - Tremblay suffered from multiple sclerosis - He was given special accommodations for the written examination in a competition for a position with the Transportation Safety Board of Canada (TSB) - Tremblay appealed under s. 21 of the Public Service Employment Act from the appointment of the successful candidate - An Appeal Board dismissed the appeal - Tremblay applied for judicial review, arguing that the Appeal Board erred in finding that the TSB had fulfilled its duty to provide him with reasonable accommodations - The issue centred on the TSB's rejection of a psychologist's initial recommendations, which called for the use of alternative assessment methods - The Federal Court of Canada, Trial Division, held that the Appeal Board's finding that the TSB had fulfilled its duty to accommodate was correct - It was not necessary to use an alternative assessment method as Tremblay's needs were adequately addressed through modifications to the testing conditions - See paragraphs 28 to 37.

Labour Law - Topic 9176

Public service labour relations - Job competitions - General - Duties of employer - Tremblay suffered from multiple sclerosis - He was given special accommodations for the written examination in a competition for a position with the Transportation Safety Board of Canada (TSB) - Tremblay appealed under s. 21 of the Public Service Employment Act from the appointment of the successful candidate - He argued that he had accepted the corrective measures proposed by the TSB under duress - An Appeal Board dismissed the appeal - Tremblay applied for judicial review, arguing that the Appeal Board erred in finding that he did not write the test under duress - The Federal Court of Canada, Trial Division, dismissed the application - While Tremblay had informed the TSB that he was reluctantly accepting the accommodations offered, he did not provide any information on what additional accommodations he required - It was unreasonable to expect the TSB to re-engage in the search for acceptable accommodations without any information on what more was needed - See paragraphs 38 to 40.

Labour Law - Topic 9187.1

Public service labour relations - Job competitions - General - Examinations and interviews - General - Tremblay was an unsuccessful candidate in a competition for a position with the Transportation Safety Board of Canada - Tremblay appealed under s. 21 of the Public Service Employment Act from the appointment of the successful candidate - He argued that distractions which he encountered while writing the test put him at a disadvantage - An Appeal Board dismissed the appeal - The Federal Court of Canada, Trial Division, dismissed an application for judicial review - The Appeal Board did not err in finding that it was incumbent upon Tremblay to raise his concerns about the distractions during the exam - Tremblay should have raised the problems he was encountering with the test administrator - See paragraphs 41 to 42.

Labour Law - Topic 9187.1

Public service labour relations - Job competitions - General - Examinations and interviews - General - [See second Labour Law - Topic 9176 ].

Labour Law - Topic 9193

Public service labour relations - Job competitions - General - Appeals - [See Administrative Law - Topic 2641 and first Labour Law - Topic 9176 ].

Labour Law - Topic 9193

Public service labour relations - Job competitions - General - Appeals - The Federal Court of Canada, Trial Division, considered the extent to which a Public Service Commission Appeal Board could apply human rights principles in determining whether accommodations provided to a candidate in a public service competition were reasonable - The court considered that the purpose of an appeal under s. 21 of the Public Service Employment Act was not to identify discriminatory standards and determine whether they could be justified - Rather, its function was to ensure that the selection board made an appointment based on the merit principle - The court stated that human rights principles might have limited applicability in an appeal under s. 21 and there was nothing wrong with drawing upon human rights principles as long as they were utilised as part of an appropriate analysis under the merit principle - See paragraphs 20 to 26.

Labour Law - Topic 9203

Public service labour relations - Job competitions - General - Merit principle - [See first Labour Law - Topic 9176 and second Labour Law - Topic 9193 ].

Cases Noticed:

Boucher v. Canada (Attorney General) (2000), 252 N.R. 186 (F.C.A.), refd to. [para. 18].

Buttar v. Canada (Attorney General) et al. (2000), 254 N.R. 368; 186 D.L.R.(4th) 101 (F.C.A.), refd to. [para. 18].

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 21].

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, refd to. [para. 21].

Central Alberta Dairy Pool v. Human Rights Commission (Alta.), [1990] 2 S.C.R. 489; 113 N.R. 161; 111 A.R. 241, refd to. [para. 21].

Renaud v. Board of Education of Central Okanagan No. 23 and Canadian Union of Public Employees, Local 523, [1992] 2 S.C.R. 970; 141 N.R. 185; 13 B.C.A.C. 245; 24 W.A.C. 245, refd to. [para. 21].

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

Canada (Attorney General) v. Girouard et al. (2001), 202 F.T.R. 1 (T.D.), affd. [2002] 4 F.C. 538; 291 N.R. 289 (C.A.), refd to. [para. 24].

Schut v. Canada (Attorney General), [1998] F.T.R. Uned. 327 (T.D.), refd to. [para. 26].

Cyr et al. v. Canada (Procureur général) (2000), 201 F.T.R. 191 (T.D.), refd to. [para. 42].

Université du Québec à Trois-Rivières v. Syndicat des employés professionnels de l'Université du Québec à Trois-Rivières, [1993] 1 S.C.R. 471; 148 N.R. 209; 53 Q.A.C. 171; 101 D.L.R.(4th) 494, refd to. [para. 46].

Counsel:

Michel Tremblay, on his own behalf;

Richard Casanova, for the respondents.

Solicitors of Record:

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

This application was heard on April 9, 2003, at Ottawa, Ontario, before Kelen, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on April 22, 2003.