Date: 20040715
Docket: T-4-03
Citation: 2004 FC 992
Ottawa, Ontario, the 15th day of July 2004
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
SYLVAIN TURCOTTE
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] Natural justice prescribes the disclosure of all evidence. Without full knowledge of the facts, how could the parties engage in a meaningful exchange? Audi alteram partem, hear both sides, is a constant refrain at the core of the justice system, its leitmotiv or refrain in itself, except in the case of a threat to the state itself.
PROCEEDING
[2] This is an application for judicial review, under section 18.1 of the Federal Courts Act,[1] of a decision dated December 2, 2002, of the recourse officer (the officer) dismissing the applicant's appeal in relation to a competition to staff Correctional Officer I (CO I) positions in the Correctional Service of Canada (CSC).
FACTS
[3] This is a case that turns on the facts. On January 16, 2001, the applicant, Sylvain Turcotte, applied by Internet in a public competition to fill a CO I position within the CSC.
[4] There were two stages in this competition. The first was a written test and the second, which was conditional on success at the first stage, consisted of an interview followed by a verification of the candidate's references.
[5] On March 13, 2001, Mr. Turcotte took the written test and passed.
[6] On March 7, Mr. Turcotte was called to the second stage, the interview. This interview was directed by a selection board composed of Christian Rioux and Suzanne Robitaille. The personal attributes that were evaluated by the selection board were respect, willingness to learn and adapt, integrity, eagerness to obtain results and team spirit.
[7] After the interview, Mr. Rioux verified the applicant's personal attributes with three references.
[8] Mr. Turcotte failed the second part of the public competition.
OFFICER'S DECISION
[9] The officer found that the selection board members had reacted professionally during the selection procedure. She also determined:
[translation] In regard to the information that was gathered from [the witness], the information accepted by the selection board concerning the three incidents is right. Apart from the error concerning the interpretation of the name of the division, "Sûreté aéroportuaire" [Airport security], the complainant [Sylvain Turcotte] did in fact have to be reassigned to another work location as a result of the justified requests of three clients. The selection board could not fail to take into account these three incidents and the fact that the complainant had not mentioned it during his interview. Accordingly, the information obtained and accepted when the members of the selection board were checking references justifies the evaluation that the complainant was given and I see no need to intervene further at this level.[2]
ISSUES
[10] Is all of the evidence admissible in this Court?
[11] What is the standard of review on an appeal of the officer's decision?
[12] Did the officer err in failing to consider Mr. Turcotte's complaint of discrimination?
[13] Did the officer's actions give rise to a reasonable apprehension of bias?
[14] Did the officer breach some principles of natural justice?
[15] Did the officer err in concluding that Mr. Turcotte's allegations were not justified?
[16] Did the officer breach section 2(a) of the Canadian Charter of Rights and Freedoms (the Charter)?
ANALYSIS
Is all of the evidence admissible in this Court?
[17] The respondent submits that some evidence that was not considered by the officer is not admissible before this Court. It is settled law that a party may not adduce evidence before the Federal Court that was not considered by the decision-maker at first instance. However, the respondent does not specify which of the evidence that Mr. Turcotte is seeking to adduce in Court was not considered previously by the officer, so the Court is unable to determine the merits of the respondent's submission.
What is the standard of review on an appeal of the officer's decision?
[18] The Court accepts the respondent's argument that, pursuant to Nault v. Public Service Commission of Canada[3] and paragraph 18.1(d) of the Act, the standard of review of a decision by an officer under section 7.1 of the Act is patent unreasonableness.
Did the officer err in failing to consider Mr. Turcotte's complaint of discrimination?
[19] Mr. Turcotte submits that the officer had a duty to consider his complaint of discrimination on the basis of religion.
[20] The respondent submits that an officer does not have jurisdiction to determine questions of discrimination.
[21] The respondent also submits that this decision constituted a final administrative decision. Mr. Turcotte is therefore foreclosed from attacking it now.
[22] The respondent is right. In MacNeill v. Canada (Attorney General),[4] the Federal Court of Appeal held that a public service appeal board does not have the power to determine a question of discrimination, but that this question should be put before the Canadian Human Rights Commission.[5]
[23] Likewise, the decision on a question of jurisdiction is a final decision.[6] Mr. Turcotte is foreclosed from making this argument, therefore.
Did the officer's actions give rise to a reasonable apprehension of bias?
[24] Mr. Turcotte alleges that the officer created a reasonable apprehension of bias since she made some discriminatory comments against his religion. Furthermore, she told him that if he wanted to file a complaint of discrimination, [translation] "you can complain where you want."
[25] These are very serious allegations, and there is no evidence that the officer made discriminatory comments or was aggressive toward him. Mr. Turcotte alleges that the officer made some discriminatory comments in a low voice to ensure they would not be recorded. Nowhere in the transcript of the hearing does Mr. Turcotte protest that the officer made some discriminatory comments. However, the transcript shows that Mr. Turcotte did not hesitate to object when he thought the agent was angry or was making a mistake.[7] So the Court does not find it credible that Mr. Turcotte remained silent in the presence of allegedly discriminatory comments in his regard.
[26] Moreover, there is no evidence that the officer was aggressive with Mr. Turcotte. The officer was sometimes impatient and frustrated with Mr. Turcotte but on the whole she was generally calm and polite with him.[8]
[27] In alleging that the officer was aggressive toward him, Mr. Turcotte notes that the officer told him several times [translation] "you can complain where you want." The officer said several times that if Mr. Turcotte had a discrimination complaint, he should take it to the Canadian Human Rights Commission. Contrary to Mr. Turcotte's submissions, she said this politely, in order not to decide the discrimination issue because she did not have jurisdiction to decide it. There was nothing problematic in this comment.
Did the officer breach some principles of natural justice?
[28] Mr. Turcotte argues that the officer breached some principles of natural justice by beginning the inquiry by surprise, appointing the members of the selection board as representatives for the respondent, refusing to exclude witnesses and not allowing Mr. Turcotte to examine a witness. Also, the officer may have breached principles of natural justice by failing to disclose a document to Mr. Turcotte.
Beginning inquiry by surprise
[29] Mr. Turcotte claims that the officer breached the principles of natural justice by beginning the inquiry on July 10, 2002, when she had told him that the meeting would be a pre-hearing.
[30] The Court does not accept this argument. A case management officer wrote a letter to Mr. Turcotte, dated June 12, 2002, which explains that a meeting of inquiry would be held on July 10, 2002. It is clear that the "meeting of inquiry" would be a hearing, and not a mere pre-hearing.[9]
[31] Furthermore, as the respondent notes, Mr. Turcotte did not object when it was clear that the hearing would be held. In fact, he had with him the documents that he wished to present. The record indicates that Mr. Turcotte was not taken by surprise. Accordingly, the Court is of the opinion that the officer did not commit any error.
Appointing the members of the selection board as representatives
[32] Mr. Turcotte submits that the officer breached the principles of natural justice by deciding that the members of the selection board would be representatives for the respondent. The respondent submits that the officer has control of the procedure at the hearing and she had jurisdiction to decide that the members of the selection board would be the representatives.
[33] The Court agrees with the respondent. Under subsection 7(2) of the Public Service Employment Act,[10] the officer has the same powers as a commissioner. Under section 7 of the Inquiries Act,[11] commissioners are granted extensive discretion in determining the rules of evidence governing inquiries over which they are presiding. Consequently, the officer is entitled to allow the members of the selection board to be the representatives of the respondent.
[34] Arguably, in some cases it might adversely affect the applicant to appoint individuals directly involved in the competition as representatives of the respondent. However, the applicant has to show that he has been adversely affected. In this case, Mr. Turcotte has not demonstrated this, and he has not demonstrated, therefore, that the officer violated the principles of natural justice.
Refusing to exclude witnesses
[35] Mr. Turcotte argues that the officer erred in refusing to exclude the members of the selection board from the hearing when he was not testifying. The argumentation in respect of the decision to let the selection board members represent the respondent is also applicable to this question. Since the officer has a very wide discretion in deciding on the procedure to be followed at the hearing, she or he may decide that the witnesses can remain during the hearing when they are not testifying.
[36] Again, it may sometimes adversely affect the applicant if an officer refuses to exclude witnesses. In this case, the officer asked Mr. Turcotte why he wanted to exclude the members of the selection board from the hearing when he was not testifying. He explained that he wanted to examine the consistency between the testimony of the two members of the jury. This is a reasonable explanation, but it was also reasonable for the officer to find that, in this case, the exclusion of the witnesses was not necessary. The officer did not breach the principles of natural justice.
Examination of the witness
[37] Mr. Turcotte argues that the officer interrupted his examination of a witness so often that he was unable to ask all the questions he wanted to ask.
[38] An analysis of the hearing as a whole indicates that the officer did not intervene excessively in the examination of the witness. The officer let the respondent's representative ask a number of questions, and the officer herself asked the witness some questions. However, the extract from the transcript of the hearing shows that the officer allowed Mr. Turcotte to question the witness as well.[12] Finally, it is the Court's opinion that Mr. Turcotte wanted the hearing to be quasi-judicial, and thought he could examine the witness followed by cross-examination by the respondent's representative. But, since section 7 of both the Public Service Employment Act and the Inquiries Act give officers the authority to take evidence in the manner they consider most appropriate, the officer had the jurisdiction to allow a less structured examination than what Mr. Turcotte would have wanted. The officer did not err.
Disclosure of document
[39] Although the officer did not breach the principles of natural justice identified by Mr. Turcotte, the Court finds that the officer did not fully comply with the principles of natural justice. At the hearing, Mr. Turcotte submitted that his interview began a half-hour late. The officer asked a representative of the respondent to send her the log to verify at what time he arrived and left the premises. She received it after the hearing and decided, in light of the log, that the interview did not begin late.[13] But she did not send the log to Mr. Turcotte before drawing this conclusion.[14]
[40] A key concept in the principles of natural justice is that parties must know the full case compiled against them and be able to correct or contradict it. In this case, the officer did not disclose the log to Mr. Turcotte although she relied on this log in making her decision. The officer violated the principle of audi alteram partem. Because a decision is automatically set aside when there is a violation of the principles of natural justice, the officer's decision is overturned.
Did the officer err in concluding that Mr. Turcotte's allegations were not justified?
[41] Mr. Turcotte alleges that the officer made a number of errors in finding that his complaint was not justified. Generally, Mr. Turcotte shows that he does not agree with the officer's decision, but he does not demonstrate that her decision is patently unreasonable.
[42] However, there are certain errors identified by Mr. Turcotte that are clearly established. The officer erred in describing the criteria used by the selection board in evaluating Mr. Turcotte, and in deciding that the interview did not begin late.
Criteria
[43] In her decision, the officer stated that the personal attributes listed in the posting were the following: good interpersonal relations, tact/discretion, reliability, initiative, flexibility, judgment, dependability.[15] However, Mr. Turcotte correctly submits that the criteria evaluated by the selection board were respect, willingness to learn and adapt, integrity, eagerness to obtain results and team spirit. The officer erred in fact, therefore.
[44] Nevertheless, the decision illustrates that the officer recognized that the selection board evaluated Mr. Turcotte's integrity and that he failed on that point. Although the officer erred in the facts, this did not detract from her understanding of the case. This error is inconsequential.
Interview beginning a half-hour late
[45] Mr. Turcotte argues that the officer erred in deciding that his interview did not begin a half-hour late.
[46] The Court accepts this argument. During the hearing, Mr. Turcotte testified that he arrived at the interview at 8:00 a.m. The interview, which was supposed to begin at 8:30 a.m., began at 9:00 a.m. and ended at 10:30 a.m.[16]
[47] In her analysis of this issue, the officer noted that the log that all visitors must sign to re-enter the premises, shows that Mr. Turcotte arrived at 8:00 a.m. and left at 10:25 a.m. Later she found: [translation] "The information received shows that the interview did not begin late but that it is the complainant who arrived 30 minutes before its commencement, so naturally he had to wait."[17]
[48] The officer wrongly found that Mr. Turcotte had not taken into consideration the fact that he arrived a half-hour in advance when he alleged that the interview began late. Furthermore, contrary to the officer's finding, the log confirms Mr. Turcotte's allegation. On this one point and it alone, the officer's conclusion is therefore patently unreasonable.
[49] The core of the decision is that it was reasonable that Mr. Turcotte should fail because there were three correct complaints made against him in his work and he did not admit them during the interview. The fact that the interview began a half-hour late might have caused him some stress, but does not explain the three complaints and his silence about them. The decision as a whole would be valid but for the fact that the evidence as a whole, without exception, should be known by the parties if the rules of natural justice are to be observed.
Did the officer breach section 2(a) of the Charter?
[50] In MacKay v. Manitoba,[18] the Supreme Court of Canada held that in deciding a Charter issue, the issue in dispute must be based on facts and not be moot.[19]
[51] In the case at bar, the Court found earlier that the officer did not make discriminatory comments directed against Mr. Turcotte. Moreover, Mr. Turcotte does not submit that the Public Service Employment Act, or any section of that Act, violates paragraph 2(a) of the Charter. But he makes a general criticism of the jurisprudence on paragraph 2(a) of the Charter. Besides the fact that Mr. Turcotte's criticism does not appear to have any basis, the Court does not decide this question because it is hypothetical.
CONCLUSION
[52] In this particular case, the Court allows the application for judicial review solely on the ground that the officer failed to comply with the principles of natural justice by not disclosing the log to Mr. Turcotte.
JUDGMENT
THIS COURT sends the case back for redetermination on the terms that are specified.
"Michel M.J. Shore"
Judge
Certified true translation
Suzanne M. Gauthier, C.Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-4-03
STYLE: SYLVAIN TURCOTTE
and ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 28, 2004
REASONS FOR JUDGMENT
AND JUDGMENT: THE HONOURABLE MR. JUSTICE SHORE
DATED: JULY 15, 2004
APPEARANCES:
Sylvain Turcotte FOR THE APPLICANT
Pierre Lecavalier FOR THE RESPONDENT
SOLICITORS OF RECORD:
SYLVAIN TURCOTTE FOR THE APPLICANT
Montréal, Quebec
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General
of Canada
Ottawa, Ontario
[1] R.S.C. 1985, c. F-7 (the Act).
[2] Respondent's Record, Vol. II, Officer's decision, at p. 566.
[3] 2002 FCT 1297, [2002] F.C.J. No. 1766, at para. 29 (FC) (QL).
[4] [1994] 3 F.C. 261.
[5] Supra, at para. 72.
[6] Zündel v. Canada (Human Rights Commission), [2000] 4 F.C. 255 (C.A.), [2000] F.C.J. No. 678 (QL), at para. 10.
[7] See, for example, Respondent's Record, Vol. II, Transcript of hearing, at pp. 289-90, 330, 463.
[8] See, for example, Respondent's Record, Vol. II, Transcript of hearing, at pp. 283, 291, 323, 463.
[9] Respondent's Record, Vol. I, Letter to Sylvain Turcotte from the case management officer, at p. 227.
[10] R.S.C. 1985, c. P-33 (the Public Service Employment Act).
[11] R.S.C. 1985, c. I-11.
[12] See, for example, Respondent's Record, Vol. II, Transcript of hearing, at pp. 510-518.
[13] Respondent's Record, Vol. II, Decision of the officer, at pp. 556, 566.
[14] Respondent's Record, Vol. I, Log, at pp. 43-44.
[15] Respondent's Record, Vol. II, Decision of the officer, at p. 555.
[16] Respondent's Record, Vol. II, Transcript of hearing, at pp. 297, 300.
[17] Respondent's Record, Vol. II, Decision of the officer, at p. 566.
[18] [1989] 2 S.C.R. 357, [1989] S.C.J. No. 88 (QL).
[19] Supra, at para. 9.