Tremblay v. Canada (Attorney General) et al., (2003) 232 F.T.R. 204 (TD)

• Judge: Kelen, J.
• Court: Federal Court (Canada)
• Case Date: April 07, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 232 F.T.R. 204 (TD)

Tremblay v. Can. (A.G.) (2003), 232 F.T.R. 204 (TD)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. AP.066

Michel Tremblay (applicant) v. The Attorney General of Canada, Carlo Zanetti and Daniel Plouffe (respondents)

(T-1958-00; 2003 FCT 465)

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 requested special accommodation for the written examination in a competition conducted by Transport Canada. Tremblay was not satisfied with the accommodations offered and refused to attend the examination. Tremblay appealed under s. 21 of the Public Service Employment Act from the appointment of the successful candidates. An Appeal Board dismissed the appeal, finding that Transport Canada had conducted the selection process in accordance with the merit principle. Tremblay applied for judicial review of the Appeal Board's decision.

The Federal Court of Canada, Trial Division, allowed the application and set aside the Appeal Board's decision. The matter was referred to the Public Service Commission to establish a new selection board to conduct a new competition.

Labour Law - Topic 9176

Public service labour relations - Job competitions - General - Duties of employer - Tremblay suffered from multiple sclerosis - He requested special accommodation for the written examination in a Transport Canada competition - Tremblay was not satisfied with the accommodations offered and did not attend the examination - Tremblay appealed under s. 21 of the Public Service Employment Act from the appointment of the successful candidates - An Appeal Board dismissed the appeal, finding that Transport Canada 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 Transport Canada 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 18 to 25.

Labour Law - Topic 9176

Public service labour relations - Job competitions - General - Duties of employer - Tremblay suffered from multiple sclerosis - He requested special accommodation for the written examination in a Transport Canada competition - Tremblay was not satisfied with the accommodations offered and did not attend the examination - Tremblay appealed from the appointment of the successful candidates - A Public Service Commission Appeal Board dismissed the appeal, finding that Transport Canada had conducted the selection process in accordance with the merit principle - Tremblay applied for judicial review - The Federal Court of Canada, Trial Division, allowed the application, holding that Transport Canada failed to fulfil its duty to provide reasonable accommodations to Tremblay where it failed to conduct an analysis tailored to Tremblay's circumstances - The court considered that: (1) there was no evidence that Transport Canada consulted with the Public Service Commission's Personal Psychology Centre (PPC) or an outside expert before making its first proposed set of accommodations; (2) Transport Canada relied too heavily on the Public Service Commission's Guidelines; and (3) there was insufficient evidence to conclude that the proposed recommendations received approval from the PPC - See paragraphs 26 to 34.

Labour Law - Topic 9176

Public service labour relations - Job competitions - General - Duties of employer - Tremblay suffered from multiple sclerosis - He requested special accommodation for the written examination in a Transport Canada competition - Tremblay was not satisfied with the accommodations offered and did not attend the examination - Tremblay appealed from the appointment of the successful candidates - A Public Service Commission Appeal Board dismissed the appeal, finding that Transport Canada had conducted the selection process in accordance with the merit principle - Tremblay applied for judicial review - The Federal Court of Canada, Trial Division, allowed the application, holding that Transport Canada failed to fulfil its duty to provide reasonable accommodations to Tremblay - While the court also found that Tremblay could have done more to facilitate the search for accommodations, the primary onus for devising and implementing accommodations was on the employer and the search for accommodations had foundered primarily because Transport Canada did not take the necessary steps to discern specifics about Tremblay's situation - As a result, the merit principle was not respected and a new competition was required - See paragraphs 40 to 44.

Labour Law - Topic 9193

Public service labour relations - Job competitions - General - Appeals - [See 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 23 to 24.

Labour Law - Topic 9203

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

Labour Law - Topic 9261

Public service labour relations - Job selection with job competition - Selection process - Appeals - [See first Labour Law - Topic 9176 and second Labour Law - Topic 9193 ].

Cases Noticed:

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. 13].

Boucher v. Canada (Attorney General) (2000), 252 N.R. 186 (F.C.A.), refd to. [para. 16].

Buttar v. Canada (Attorney General) et al. (2000), 254 N.R. 368; 186 D.L.R.(4th) 101 (F.C.A.), refd to. [para. 16].

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. 19].

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. 19].

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. 19].

Charest v. Canada (Attorney General), [1973] F.C. 1217 (F.C.A.), refd to. [para. 21].

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. 22].

Schut v. Canada (Attorney General), [1998] F.T.R. Uned. 327 (T.D.), refd to. [para. 24].

Canada (Attorney General) v. Bates, [1997] 3 F.C. 132; 129 F.T.R. 61 (T.D.), refd to. [para. 28].

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 7, 2003, at Ottawa, Ontario, before Kelen, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on April 22, 2003.