Zaytoun v. Canadian Food Inspection Agency, (2008) 326 F.T.R. 124 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: November 05, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2008), 326 F.T.R. 124 (FC);2008 FC 502

Zaytoun v. CFIA (2008), 326 F.T.R. 124 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. AP.029

Maher Zaytoun (applicant) v. Canadian Food Inspection Agency (respondent)

(T-270-07; 2008 FC 502)

Indexed As: Zaytoun v. Canadian Food Inspection Agency

Federal Court

Russell, J.

April 17, 2008.

Summary:

Zaytoun was an unsuccessful candidate in a staffing process of the Canadian Food Inspection Agency. Zaytoun filed a complaint pursuant to the Agency's Staffing Recourse Policy, alleging that the staffing process violated the Agency's staffing values of fairness and competency because two successful candidates who were married to each other wrote the exam on different days and they could have shared information about the exam. An Independent Third Party Reviewer concluded that "the decision to conduct interviews and administer a written examination for related spouses on subsequent days tainted the hiring process and breached the Agency's values of fairness and competency." The Reviewer added that the Agency should have addressed the issue of the marital status of the candidates. The Executive Director of the Agency subsequently wrote to Zaytoun, stating that the Reviewer's recommendations would leave the Agency vulnerable to a complaint under the Canadian Human Rights Act and that the Reviewer also erred in his interpretation of the Privacy Act. The Director decided that the appropriate corrective measure would be to ensure that all candidates were clearly and routinely advised of their responsibility to maintain confidentiality during selection processes. The Agency applied to set aside the Reviewer's decision. Zaytoun applied to quash the Director's decision.

The Federal Court granted the Agency's application and set aside the Reviewer's decision. Zaytoun's application for judicial review of the Director's decision was dismissed.

Labour Law - Topic 9193.2

Public service labour relations - Job competitions - General - Canadian Food Inspection Agency - Staffing Complaint Policy - Zaytoun was an unsuccessful candidate in a staffing process of the Canadian Food Inspection Agency - Zaytoun filed a complaint pursuant to the Agency's Staffing Recourse Policy, alleging that the staffing process violated the Agency's staffing values of fairness and competency because two successful candidates who were married to each other wrote the exam on different days and they could have shared information about the exam - An Independent Third Party Reviewer held that despite the fact that Zaytoun was found to be unqualified for the position and not to have suffered a disadvantage as a result of the Staffing Process, the Policy permitted consideration of his complaint because he had an interest in determining whether the procedure followed by the Agency respected its statutory obligations, its Policy, and its staffing values - On an application for judicial review, the Federal Court held that the standard of review of this question was correctness and that the Reviewer could not be said to have interpreted this issue incorrectly - See paragraphs 57 to 60.

Labour Law - Topic 9193.2

Public service labour relations - Job competitions - General - Canadian Food Inspection Agency - Staffing Complaint Policy - Zaytoun was an unsuccessful candidate in a staffing process of the Canadian Food Inspection Agency - Zaytoun filed a complaint pursuant to the Agency's Staffing Recourse Policy, alleging that the staffing process violated the Agency's staffing values of fairness and competency because two successful candidates who were married to each other wrote the exam on different days and they could have shared information about the exam - An Independent Third Party Reviewer concluded that "the decision to conduct interviews and administer a written examination for related spouses on subsequent days tainted the hiring process and breached the Agency's values of fairness and competency" - On an application for judicial review, the Federal Court held that the standard of review of this issue was reasonableness and that the Reviewer's decision was unreasonable - The Reviewer's findings were based on his own personal views of the nature of the spousal relationship and the impact of that relationship on employee loyalties and the temptations that might arise if spouses in the same competition were examined on subsequent days - The Reviewer's general conclusions about the nature of the spousal relationship, the perception of unfairness, and the appropriate remedial action were unreasonable given the narrow scope of the record before him - See paragraphs 61 to 81.

Labour Law - Topic 9193.2

Public service labour relations - Job competitions - General - Canadian Food Inspection Agency - Staffing Complaint Policy - Zaytoun was an unsuccessful candidate in a staffing process of the Canadian Food Inspection Agency - Zaytoun filed a complaint pursuant to the Agency's Staffing Recourse Policy, alleging that the staffing process violated the Agency's staffing values of fairness and competency because two successful candidates who were married to each other wrote the exam on different days and they could have shared information about the exam - An Independent Third Party Reviewer concluded that "the decision to conduct interviews and administer a written examination for related spouses on subsequent days tainted the hiring process and breached the Agency's values of fairness and competency" - The Agency applied for judicial review of the Reviewer's decision - Zaytoun argued that the Agency had an adequate alternative remedy where the Policy set out a review process for Reviewer decisions based on "errors of fact or omission" - The Federal Court held that it was not convinced that this was an "adequate alternative remedy" within the established meaning of that term - The court stated that "the 'errors of fact or omission' could well be merely errors in the record that was before a reviewer and, in light of which, his or her decision would need to be reconsidered. In the present case, we are not looking at errors of fact in this sense" - See paragraphs 83 to 93.

Labour Law - Topic 9193.2

Public service labour relations - Job competitions - General - Canadian Food Inspection Agency - Staffing Complaint Policy - Zaytoun filed a complaint pursuant to the Canadian Food Inspection Agency's Staffing Recourse Policy, alleging that a staffing process violated the Agency's staffing values of fairness and competency because two successful candidates who were married to each other wrote the exam on different days and they could have shared information about the exam - An Independent Third Party Reviewer concluded that "the decision to conduct interviews and administer a written examination for related spouses on subsequent days tainted the hiring process and breached the Agency's values of fairness and competency" - The Reviewer added that the Agency should have addressed the issue of the marital status of the candidates - The Executive Director of the Agency subsequently wrote to Zaytoun, stating that the Reviewer's recommendations would leave the Agency vulnerable to a complaint under the Canadian Human Rights Act and that the Reviewer also erred in his interpretation of the Privacy Act - The Director decided that the appropriate corrective measure would be to ensure that all candidates were clearly and routinely advised of their responsibility to maintain confidentiality during selection processes - Zaytoun applied to quash the Director's decision, complaining that the Agency essentially did nothing in response to the Reviewer's decision except confirm the status quo - The Federal Court dismissed the application - There was not enough evidence to ascertain what was occurring generally with respect to cautions to candidates in assessments and whether the more formalized approach contained in the Director's decision meant that something substantively different was now occurring - Hence, the court could not say that the Director's decision was unreasonable because it merely reiterated the status quo - With respect to the Privacy Act and human rights issues, the Director acted reasonably in declining to implement the Reviewer's suggestions with respect to gathering personal information about spouses and/or other candidates - Without a full set of facts and a specific complaint it was difficult to be definitive about the legal impact of gathering any such information - The Director took legal advice and made a reasonable decision based on possible consequences - See paragraphs 94 to 99.

Labour Law - Topic 9307

Public service labour relations - Judicial review - General - Decisions of reviewer appointed under staffing program - [See first, second and third Labour Law - Topic 9193.2 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 36].

Forsch v. Canadian Food Inspection Agency et al. (2004), 251 F.T.R. 95; 2004 FC 513, refd to. [para. 42].

Caldwell et al. v. Public Service Commission et al. (1978), 25 N.R. 458 (F.C.A.), refd to. [para. 58].

Laplante et al. v. Canada (Attorney General) et al. (2003), 234 F.T.R. 143; 2003 FCT 653, refd to. [para. 58].

Charest v. Canada (Attorney General) (1973), 2 N.R. 288 (F.C.A.), refd to. [para. 58].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 88].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 89].

Jones v. Canada (Attorney General) (2007), 333 F.T.R. 1; 2007 FC 386, refd to. [para. 92].

Counsel:

Chris Rootham , for the applicant;

Alexandre Kaufman , for the respondent.

Solicitors of Record:

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

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

These applications were heard on November 5, 2007, at Ottawa, Ontario, before Russell, J., of the Federal Court, who delivered the following decision on April 17, 2008.