Date: 20031028
Docket: T-80-01
Citation: 2004 FC 814
Ottawa, Ontario, the 28th day of October 2003
Present: THE HONOURABLE MADAM JUSTICE JOHANNE GAUTHIER
BETWEEN:
SYLVIANNE DUFOUR
Applicant
- and -
ATTORNEY GENERAL OF CANADA and DIANE VALLIÈRES, ROBERT POIRIER, NATHALIE OUELLETTE, CARMEN LABRE, CAROLE VALENCE, YVON PLOURDE, MICHEL BRISSON, JOHN WARNER, STÉPHANIE ROY, SUZANNE ST-GERMAIN, SIMON LEFEBVRE, HÉLÈNE CARBONNEAU, TONYA WILLIAMS, CHRISTINE BISSON, MICHELINE STANIFORTH-FERRIS, MARIO FLOCARI, DIANE PAGE, SYLVIE MARIE ROY, MOHCINE CHAOUNI, DEBBIE McCLELLAND and DENIS BEAUCHAMP
Respondents
ORDER
UPON the application for judicial review of the decision of the Appeal Board of the Public Service Commission of Canada, dated December 18, 2000, allowing only in part the appeal by Sylvianne Dufour against the appointments of Diane Vallières, Robert Poirier, Natalie Ouellette, Carmen Labre, Carole Valence, Yvon Plourde, Michel Brisson, John Wamer, Stéphanie Roy, Suzanne St-Germain, Simon Lefebvre, Hélène Carbonneau, Tonya Williams, Christine Bisson, Micheline Staniforth-Ferris, Mario Flocari, Diane Page, Sylvie Marie Roy, Mohcine Chaouni, Debbie McClelland and Denis Beauchamp;
WHEREAS the applicant submits that the Appeal Board erred in its analysis of her submission that Ms. Lelièvre, one of the two members of the Selection Committee, was biased and that this bias tainted the selection process as a whole (given that once this issue was decided, only the Public Service Commission of Canada had jurisdiction to determine whether a new competition should be held). More particularly, she alleges that the Appeal Board erred in law in describing the applicable standard of bias as follows:
[translation] Indeed, the applicable test in this case is not that of the reasonable apprehension of bias, but that of actual bias, a principle laid down by the consistent case law of the Federal Court. Consequently, it falls to the appellant to demonstrate that one of the members of the selection committee had influenced the result of the selection process by favouring one or more candidates or, on the contrary, by penalizing one or more candidates....
WHEREAS the Court has determined that the standard applied in Canada (Attorney General) v. Henri, [1986] F.C.J. No. 153 (QL) (F.C.A.) and Attorney General of Canada v. Mirabelli, [1987] F.C.J. No. 142 (QL) (F.C.A.), cited by the Appeal Board, was qualified in Hnatiuk v. Canada (Treasury Board) et al., [1993] F.C.J. No. 703 (QL), upheld in Hnatiuk v. Canada (Treasury Board), [1994] F.C.J. No. 891 (QL) and in Sudbury v. Canada (Attorney General), [2000] F.C.J. No. 1470 (QL), and that Mr. Justice Evans, in Cougar Aviation Ltd. v. Canada (Minister of Public Works and Government Services), [2000] F.C.J. No. 1946 (QL), summarized the present state of the law in the matter at paragraphs 32, 33 and 34 of his decision. Accordingly, it is clear that the Appeal Board misapplied the standard of bias in its analysis and that its decision on this question of law is incorrect.
However, the respondents submit that this error was not determinative since it is clear that Ms. Dufour cannot establish any "presumption of effective bias" in this matter, given the lack of explicit and independent evidence that she conceivably had the requisite qualities to succeed in the competition and, more particularly, the written examination. In view of the evidence in the record, I am not persuaded that the Appeal Board would necessarily have rejected the bias argument. A number of the submissions made on both sides raise some factual matters that are missing or that have not been clearly established in this case. For example, how many members of Ms. Lelièvre's unit participated in the competition? Were some of these persons interviewed by Ms. VaillantPierre? How many of these candidates passed the written examination? Did the names of the candidates clearly appear on the examination copy during the correction or revision? Is there independent evidence that one of the people in the department who failed had the requisite skills to pass the examination and/or the competition? In the circumstances, I must set aside the decision.
IT IS HEREBY ORDERED
1. The application for judicial review is allowed.
2. The decision of the Appeal Board, dated December 18, 2000, is set aside and a new hearing will be held before a differently constituted Appeal Board.
"Johanne Gauthier"
Judge
Certified true translation
Suzanne Gauthier, C.Tr., LL.L.