Gandhi v. Canada (Canada Border Services Agency)

Gandhi v. Canada (Canada Border Services Agency)
Court (s) Database
Federal Court Decisions
Date
2015-04-10
Neutral citation
2015 FC 436
File numbers
T-1582-13
Decision Content
Date: 20150410
Docket: T-1582-13
Citation: 2015 FC 436
Ottawa, Ontario, April 10, 2015
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
GANDHI JEAN PIERRE
Applicant
and
CANADA BORDER SERVICES AGENCY
Respondent
JUDGMENT AND REASONS
[1] This is an application for judicial review of a decision made on August 27, 2013, by John Mooney, Vice-Chairperson of the Public Service Staffing Tribunal (the Tribunal), wherein he dismissed the applicant´s complaint pursuant to paragraph 77(1)(a) of the Public Service Employment Act, SC 2003, c 22, ss 12, 13 (the PSEA). In his complaint, the applicant claimed that he was eliminated from an internal appointment process because of an abuse of authority by the assessment board. For the reasons that follow, the application is dismissed.
I. Preliminary issues A. Style of cause [2] The respondent submits that under subsections 303(1) and 303(2) of the Federal Courts Rules, SOR/98-106 (the Rules), it is the Attorney General of Canada, not the Canada Border Services Agency (the CBSA), that should be identified as respondent in the case at bar. The respondent cites Justice Mary J. L. Gleason in Agnaou v Canada (Attorney General), 2014 FC 850 at para 11, [2014] FCJ No 1321 (Agnaou) in support of its position.
[3] The applicant opposes this application.
[4] Paragraph 303(1)(a) of the Rules provides that persons directly affected by the order sought, other than the tribunal, must be named as respondents. Under subsection 303(2) of the Rules, if no respondent is appointed in application of subsection (1), the Attorney General of Canada must then be named respondent.
[5] Agnaou involved an application for judicial review of a Tribunal decision in which the applicant had named as respondents the Deputy Minister of Justice and the Public Service Commission (PSC). Justice Gleason indicated, at paragraph 11 of her judgment, that the PSC should not have been named as respondent because it did not necessarily have an adversarial role before the Tribunal and would not necessarily be impacted by the order sought in the application for judicial review. As for the Deputy Minister of Justice, Justice Gleason indicated that the individual who performs this duty is not analogous to the employer or the staffing authority at the Department of Justice, and moreover was not directly affected by the object of the motion. She therefore concluded that only the Attorney General of Canada should be named respondent on judicial review of a decision of the Tribunal.
[6] The background of the case at bar is somewhat different. The applicant named as respondent the CBSA, the agency within which the appointment process was held. The CBSA is thus the employer and as such would be affected by an order allowing the application for judicial review. Moreover, the CBSA has been established pursuant to subsection 3(1) of the Canada Border Services Agency Act, SC 2005, c 38, and has legal personality. It therefore constitutes, in my opinion, a person “directly affected by the order sought” within the meaning of paragraph 303(1)(a) of the Rules, and is properly named as respondent in these proceedings.
B. The applicant`s affidavit and the exhibits filed in support of his affidavit [7] The applicant filed an affidavit in support of his application for judicial review. In its memorandum, the respondent asks the Court to strike several paragraphs in the applicant’s affidavit on the ground that these paragraphs do not attest facts, but concern the applicant’s opinions and arguments, or concern information that was not before the Tribunal. At the hearing, the respondent moreover indicated that it was leaving the matter up to the Court’s discretion.
[8] Like the respondent, I think the applicant’s affidavit contains facts mixed with opinions and arguments that should not be there. Subsection 81(1) of the Rules requires that affidavits “be confined to facts within the deponent’s personal knowledge.” The Court may thus strike, in whole or in part, an affidavit containing opinions, arguments or legal conclusions (Canada (Attorney General) v Quadrini, 2010 FCA 47 at para 18, [2010] FCJ No 194). Paragraphs 30, 31, 34-39, 40-44, 52, 59, 60, 80-82, 87, 94, 97-102 and 105-107 of the applicant’s affidavit include not only facts but also arguments.
[9] Moreover, I think it would be tedious to separate out the facts from the arguments to strike only the portions of the affidavit that really refer to arguments and opinions. Suffice it to say that I shall consider only those parts of the applicant’s affidavit that concern facts of which he has personal knowledge and that are relevant because they were before the Tribunal or because they are cited in support of the grounds mentioned by the applicant in his application for judicial review.
[10] In its memorandum, the respondent also opposed filing Exhibits CF-32, CF-53, CF-88, CF-90, CF-91 and CF-92 because these exhibits were not before the Tribunal.
[11] At the hearing of the complaint before the Tribunal, the applicant tried to lead Exhibits CF-32 and CF-53 in evidence, but the respondent objected to filing them and the Tribunal allowed its objections.
[12] Exhibit CF-32 includes, in a bundle, exchanges of emails concerning a mediation meeting pertaining to another complaint the applicant had filed with the Tribunal in July 2009 concerning another appointment process, and the memorandum of settlement signed on December 11, 2009, at the time of the mediation.
[13] Exhibit CF-53 includes an email dated September 15, 2008, addressed to the employees of the Quebec Region of Citizenship and Immigration Canada (CIC) announcing various appointments, including that of Dianne Clément to the position of Director, Pre-Removal Risk Assessment (PRRA) and Client Service (CS). Exhibit CF-53 also includes a second email sent by Ms. Clément on July 27, 2012, in which she announces her retirement. The applicant maintains that these emails reveal many professional connections between Ms. Clément and the CBSA.
[14] It is well established that in principle, the record of evidence that must be filed with the Court in an application for judicial review shall be limited to what was available to the administrative tribunal when it rendered its decision. There are, however, exceptions to this principle, in particular where additional evidence is associated with allegations of breach of procedural fairness. The approach to take was clearly stated by Justice David Stratas in Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 20, [2012] FCJ No 93:
[20] There are a few recognized exceptions to the general rule against this Court receiving evidence in an application for judicial review, and the list of exceptions may not be closed. These exceptions exist only in situations where the receipt of evidence by this Court is not inconsistent with the differing roles of the judicial review court and the administrative decision-maker (described in paragraphs 17-18, above). In fact, many of these exceptions tend to facilitate or advance the role of the judicial review court without offending the role of the administrative decision-maker. Three such exceptions are as follows:
…
(b) Sometimes affidavits are necessary to bring to the attention of the judicial review court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker, so that the judicial review court can fulfil its role of reviewing for procedural unfairness: e.g., Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980) 29 O.R. (2d) 513 (C.A.). For example, if it were discovered that one of the parties was bribing an administrative decision-maker, evidence of the bribe could be placed before this Court in support of a bias argument.
[15] At the hearing, the respondent withdrew its objections concerning Exhibits CF-32 and CF-53, and recognized their relevance to the applicant’s allegations of breach of procedural fairness. I agree with the parties that Exhibits CF-32 and CF-53 were filed by the applicant to support of his allegations that the Tribunal breached procedural fairness, and as such, they are admissible.
[16] I think the same may be said of Exhibits CF-88, CF-90, CF-91 and CF-92.
II. Background [17] The applicant is an immigration officer with CIC, but between November 15, 2010, and October 28, 2011, he held the position of acting PRRA officer in the PRRA division of CIC. In December 2010, the CBSA started an internal advertised appointment process for the position of hearing officer, in order to create a pool of qualified candidates to meet the possible needs of the CBSA’s Enforcement Division in Montréal.
[18] The assessment board for this appointment process was chaired by Khalid Meniaï, a supervisor in the CBSA’s Enforcement Division. The other members of the assessment board were hearing officers Catherine Raymond and Réjean Théberge. Anne-Marie Signori, manager of the Enforcement division, was also involved in the process because she was the manager to whom the CBSA had subdelegated staffing authority. The members of the assessment board were assisted by Miruna Vasilescu, who acted as human resources advisor.
[19] The applicant submitted his application in this appointment process, but was eliminated by the assessment board because he did not obtain the pass mark required for three of the essential personal qualifications. A pass mark of 60% had been set for each essential qualification being assessed. According to the assessment plan for the process, the personal qualifications of “judgment”, “effective interpersonal relationships” and “integrity” were to be assessed in an interview and through a reference check, and an overall mark was given for each of the qualifications. The fourth personal qualification involved, “reliability”, was to be assessed solely through a reference check.
[20] The applicant received excellent marks on the interview, namely 88% for “judgment”, 98% for “effective interpersonal relations” and 100% for “integrity”. However, his marks fell significantly after the references were checked. He thus received an overall mark of 50% for the qualifications of “judgment” and “integrity” and 60% for “effective interpersonal relationships”. As for the “reliability” qualification, which was only assessed by the reference check, the applicant obtained a mark of 44%. He was thus eliminated from the process because he had not obtained the pass mark for the three essential qualifications of “judgment”, “integrity” and “reliability”.
[21] For the purposes of checking references, the appointment process provided that candidates had to supply the names of two individuals who would act as referees, namely their immediate supervisor and a second person of their choice. The applicant gave the name of Cathie Giroux, who was his supervisor for his assignment as PRRA officer, and the name of Sophie Kobrynsky, who had been his immediate supervisor for about six months when he held the position of citizenship and immigration officer.
[22] The assessment board first consulted Ms. Giroux, who provided a very negative reference concerning the applicant. Faced with this negative reference, which was hard to reconcile with the applicant’s performance in the interview, the assessment board contacted Ms. Kobrynsky, who provided a very positive reference. Since the references obtained from Ms. Giroux and Ms. Kobrynsky were contradictory, the assessment board decided to proceed with additional checks with a senior manager, namely Ms. Clément, who was the regional director of the CIC Enforcement Division and Ms. Giroux’s immediate supervisor. It was Ms. Signori who met with Ms. Clément. Ms. Clément provided references similar to those provided by Ms. Giroux. She noted, however, that the applicant had trouble performing in the position of PRRA officer, but that he had been a good employee in the other positions he had held at CIC.
[23] After deliberation, the assessment board accepted the observations of Ms. Giroux and Ms. Clément, and did not assign the applicant the pass mark for the three essential personal qualifications concerned. The following passage, under the heading “reliability” of the selection board’s book (pages 483-484 of the respondent’s record), provides a very good summary of the analysis that the assessment board made of the references provided by the three referees:
[translation]
The selection board, having obtained very negative information from Ms. Giroux, thought it appropriate, in all fairness, to call upon Ms. Kobrynsky (2nd reference given by the candidate). The responses thus obtained proved to be contradictory. We therefore contacted Ms. Clément, the candidate’s former manager, to make sure that Ms. Giroux did not have a personal conflict with the candidate. Ms. Clément’s reference confirmed the information obtained from Ms. Giroux. We did not think that the positive reference provided by Ms. Kobrynsky was relevant, since the period when she supervised the applicant was short and occurred after the fact. The candidate’s duties at Citizenship had nothing to do with Enforcement. There are, however, a number of similarities between the duties of a PRRA officer and of a hearing officer. After reviewing all the documents on the record, the Committee concluded that the candidate did not have the degree of reliability required to perform the duties of a hearing officer.
[24] After receiving a letter advising him that he had been eliminated from the appointment process, the applicant asked to participate in an informal discussion with the assessment board, as allowed by section 47 of the PSEA. In this discussion, the applicant raised concerns about the impartiality of Ms. Giroux and Ms. Clément, and asked the board to consider a portfolio he had brought with him, which contained performance assessments, letters of appreciation and certificates of recognition, all obtained during his career at CIC. The assessment board refused to consider this portfolio out to ensure that it assessed all candidates consistently. Following this discussion, the applicant asked the assessment board to consult another referee or consider the portfolio he had brought to the informal discussion. The assessment board acknowledged receipt of the request and informed the applicant of his right to file a complaint with the Tribunal.
[25] On July 3, 2012, the CBSA posted an appointment notice, which announced the acting appointment of an individual other than the applicant to the position of hearing officer.
[26] On July 19, 2012, the applicant filed his complaint with the Tribunal.
III. Legislative framework [27] The PSEA establishes the public service appointment processes and the recourse mechanisms available to federal public servants.
[28] The fifth paragraph of the preamble of the PSEA provides that the authority to make appointments is vested in the PSC, which may then delegate this authority to deputy heads (see also section 11 and subsection 29(1) of the PSEA).
[29] The second paragraph of the preamble and subsection 30(1) of the PSEA provide that appointments to the public service must be based on merit and free of political influence. To ensure that appointments are based on merit, the PSC or, as the case may be, the deputy heads must comply with the parameters set out in subsection 30(2) of the PSEA. These subsections read as follows:
30. (1) Appointments by the Commission to or from within the public service shall be made on the basis of merit and must be free from political influence.
30. (1) Les nominations — internes ou externes — à la fonction publique faites par la Commission sont fondées sur le mérite et sont indépendantes de toute influence politique.
Meaning of merit
(2) An appointment is made on the basis of merit when
Définition du mérite
(2) Une nomination est fondée sur le mérite lorsque les conditions suivantes sont réunies:
(a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency; and
a) selon la Commission, la personne à nommer possède les qualifications essentielles — notamment la compétence dans les langues officielles — établies par l’administrateur général pour le travail à accomplir;
(b) the Commission has regard to
b) la Commission prend en compte:
(i) any additional qualifications that the deputy head may consider to be an asset for the work to be performed, or for the organization, currently or in the future,
(ii) any current or future operational requirements of the organization that may be identified by the deputy head, and
(iii) any current or future needs of the organization that may be identified by the deputy head.
(i) toute qualification supplémentaire que l’administrateur général considère comme un atout pour le travail à accomplir ou pour l’administration, pour le présent ou l’avenir,
(ii) toute exigence opérationnelle actuelle ou future de l’administration précisée par l’administrateur général,
(iii) tout besoin actuel ou futur de l’administration précisé par l’administrateur général.
[30] In an internal appointment process, government employees whose application has not been accepted have certain forms of recourse, which are also fully set out in the PSEA. Paragraph 77(1)(a) of the PSEA, which is at issue in the case at bar, provides that a government employee may file a complaint with the Tribunal for abuse of authority. Paragraph 77(1)(a) states:
77. (1) When the Commission has made or proposed an appointment in an internal appointment process, a person in the area of recourse referred to in subsection (2) may — in the manner and within the period provided by the Board’s regulations — make a complaint to the Board that he or she was not appointed or proposed for appointment by reason of
(a) an abuse of authority by the Commission or the deputy head in the exercise of its or his or her authority under subsection 30(2);
77. (1) Lorsque la Commission a fait une proposition de nomination ou une nomination dans le cadre d’un processus de nomination interne, la personne qui est dans la zone de recours visée au paragraphe (2) peut, selon les modalités et dans le délai fixés par règlement de la Commission des relations de travail et de l’emploi, présenter à celle-ci une plainte selon laquelle elle n’a pas été nommée ou fait l’objet d’une proposition de nomination pour l’une ou l’autre des raisons suivantes:
a) abus de pouvoir de la part de la Commission ou de l’administrateur général dans l’exercice de leurs attributions respectives au titre du paragraphe 30(2);
[31] Abuse of authority is not exhaustively defined in the PSEA but is referred to in subsection 2(4): “For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.”
[32] Moreover, the Tribunal’s jurisdiction is limited. When a complaint is brought before it pursuant to paragraph 77(1)(a) of the PSEA, the Tribunal must determine whether there has been an abuse of authority in the appointment process. However, it does not have jurisdiction to deal with allegations of fraud in the appointment process or allegations that an appointment resulted from the exercise of political influence (subsection 77(3) of the PSEA). The PSC has exclusive jurisdiction over such allegations (sections 68 and 69 of the PSEA). To dispose of a complaint, the Tribunal may interpret and apply the Canadian Human Rights Act, RSC 1985, c. H-6 (the CHRA), other than, however, the provisions relating to the right to equal pay for work of equal value (section 80 of the PSEA).
[33] If the Tribunal finds a complaint under section 77 to be substantiated, the Tribunal may order the Commission or the deputy head to revoke the appointment or not to make the appointment, as the case may be, and to take any corrective action that the Tribunal considers appropriate (section 81 of the PSEA).
IV. The impugned decision [34] In his complaint, the applicant made various criticisms of the assessment board. The Tribunal stated the issues before it as follows:
13 In order to determine whether the respondent abused its authority in the application of merit in this appointment process, and more specifically in the assessment of the complainant’s qualifications, the Tribunal must decide the following issues:
(i) Was the assessment board’s choice of referees appropriate?
(ii) Were the references given reliable?
(iii) Were the assessment board members impartial?
(iv) Was the assessment board required to re-assess the complainant?
(v) Did the referees and assessment board members discriminate against the complainant?
[35] The Tribunal first dealt with the concept of abuse of authority and, after weighing the evidence, concluded that the applicant had not established that the assessment board had abused its authority in eliminating him from the process. The Tribunal also determined that the assessment board was justified in accepting Ms. Giroux and Ms. Clément as referees, and that the applicant had not established that the references that they had provided were not reliable or were biased against him. The Tribunal also determined that the assessment board was under no obligation to re‑examine the applicant’s application in light of the documents contained in his portfolio. The Tribunal further concluded that the applicant had not provided prima facie evidence that Ms. Giroux or Ms. Clément, or the assessment board, had discriminated against him. The Tribunal added that even if this had been proved, the CBSA had shown that no discriminatory consideration had been taken into account in the committee’s decision not to accept the applicant as a candidate.
V. Issues and standards of review [36] The applicant makes several criticisms of the Tribunal, but in my opinion, these criticisms raise two categories of issues.
[37] The first issues raised by the applicant concern allegations that the Tribunal breached the rules of procedural fairness. It is well established that the standard of review applicable to issues of procedural fairness is that of correctness (Mission Institution v Khela, 2014 SCC 24 at para 79, [2014] 1 SCR 502; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 SCR 339; Dunsmuir v New Brunswick, 2008 SCC 9 at para 129, [2008] 1 SCR 190; Alexander v Canada (Attorney General, 2011 FC 1278 at para 43, [2011] FCJ No 1560; Kraya v Canada (Attorney General), 2013 FC 1045 at para 22, [2013] FCJ No 1123, conf. by 2014 FCA 162, [2014] FCJ No 607). I moreover share the approach advocated by Justice Richard G. Mosley in Makoundi v Canada (Attorney General), 2014 FC 1177 at para 35, [2014] FCJ No 1333 (Makoundi), according to which the Court’s role is, in the final analysis, to check whether the process has been fair. Justice Mosley held as follows:
[35] In my view, the proper approach is to ask whether the requirements of procedural fairness and natural justice in the particular circumstances have been met. The question is not whether the decision was “correct” but whether the procedure used was fair. …
[38] The other grounds the applicant relies on all concern the Tribunal’s application of the concept of abuse of authority within the meaning of the PSEA and of discrimination under the CHRA. These are mixed questions of fact and law, and jurisprudence has established that such questions must be reviewed on the standard of reasonableness (Dunsmuir at para 51; Alexander at para 44; Abi-Mansour v Canada (Foreign Affairs), 2013 FC 1170 at para 54, [2013] FCJ No 1267 (Abi-Mansour); Kilbray v Canada (Attorney General, 2009 FC 390 at paras 23-33, [2009] FCJ No 531; Rameau v Canadian International Development Agency, 2014 FC 361 at para 19, [2014] FCJ No 384; Jalal v Canada (Human Resources and Skills Development), 2013 FC 611 at para 31, [2013] FCJ No 384; Lavigne v Canada (Justice), 2009 FC 684 at paras 35-50, [2009] FCJ No 827 (Lavigne); Kraya at para 20; Makoundi at para 32).
[39] I agree however, as Justice Gleason puts it in Agnaou, at paragraph 39, that it is conceivable that issues involving the Tribunal’s interpretation of the provisions of the PSEA must be reviewed according to the correctness standard. Justice Gleason addressed the issue as follows:
[39] While certain of the statements in Kane, Kraya, Abi-Mansour, and Jalal also support the application of the reasonableness standard to the review of the PSST’s interpretation of the CHRA, Mr. Agnaou’s argument that deference should not be extended to the PSST’s interpretation of the CHRA or the EEA may have merit since there are other Tribunals, namely the CHRC and the Canadian Human Rights Tribunal [CHRT], which are specifically mandated to interpret these statutes. As Mr. Agnaou argues, if the PSST (and the Public Service Labour Relations Board [PSLRB]) are to be afforded deference in their interpretations of the CHRA and the EEA, there is a real possibility that conflicts will appear in the jurisprudence, with fundamental rights being interpreted in one fashion for public servants when they appear before the PSEA or the PSST and in another fashion by the CHRC and CHRT in other contexts. Moreover, the Federal Court of Appeal has recently held in Johnstone v Canada (Border Services Agency), 2014 FCA 110 that the CHRT’s interpretation of the CHRA, in terms of defining what is meant by “discrimination”, is subject to review on a correctness standard. Thus, there is considerable weight to the argument that the PSST’s interpretation of what conduct amounts to discrimination under the CHRA is to be reviewed on a correctness standard.
[40] I consider, however, that the standard of review applicable to the Tribunal’s interpretation of the PSEA in connection with the applicant’s allegations of discrimination is not decisive in the case at bar because in my view, the Tribunal’s decision contains no error that would warrant the court’s intervention, regardless of the standard of review applied.
VI. Analysis A. Did the PSST breach its duty of procedural fairness? [41] The applicant maintains that Ms. Giroux and Ms. Clément provided unfavourable references regarding him as payback because, on certain occasions, he had tried to assert his rights. He also alleged that Ms. Clément was not impartial because of earlier complaints he had filed, in particular a complaint filed with the Tribunal regarding an appointment process in 2009 and another complaint of unfair labour practices filed with the Public Service Labour Relations Board (PSLRB). He also asserts that Ms. Clément had a great deal of influence in the CBSA.
[42] The applicant maintains that the Tribunal deprived him of his right to lead in evidence documents that were central to his allegations, and that it also prevented him from making a complete and effective presentation of his arguments concerning the prevailing context of reprisals.
[43] Let me clarify at the outset that although questions associated with procedural fairness must be reviewed on the correctness standard, the jurisprudence recognizes that fairness obligations vary with the context and that some deference must be given to the procedural choices that an administrative tribunal may make. The Tribunal is master of its own proceedings (sections 98, 99 and 109 (b) of the PSEA and section 27 of the Public Service Staffing Complaints Regulations, SOR/2006-6). The approach to take has been clearly stated by Justice John M. Evans in Re:Sound v Fitness Industry of Canada, 2014 FCA 48 at paras 37‑44, [2014] FCJ No 215:
[37] In the absence of statutory provisions to the contrary, administrative decision makers enjoy considerable discretion in determining their own procedure, including aspects that fall within the scope of procedural fairness: Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 SCR 560 (Prassad), at pages 568–569. These procedural aspects include: whether the “hearing” will be oral or in writing, a request for an adjournment is granted, or representation by a lawyer is permitted; and the extent to which cross-examination will be allowed or information in the possession of the decision maker must be disclosed. Context and circumstances will dictate the breadth of the decision maker’s discretion on any of these procedural issues, and whether a breach of the duty of fairness occurred.
…
[39] That said, administrative discretion ends where procedural unfairness begins: Prassad, at page 569. A reviewing court must determine for itself on the correctness standard whether that line has been crossed. There is a degree of tension implicit in the ideas that the fairness of an agency’s procedure is for the courts to determine on a standard of correctness, and that decision makers have discretion over their procedure.
…
[42] In short, whether an agency’s procedural arrangements, general or specific, comply with the duty of fairness is for a reviewing court to decide on the correctness standard, but in making that determination it must be respectful of the agency’s choices. It is thus appropriate for a reviewing court to give weight to the manner in which an agency has sought to balance maximum participation on the one hand, and efficient and effective decision making on the other. In recognition of the agency’s expertise, a degree of deference to an administrator’s procedural choice may be particularly important when the procedural model of the agency under review differs significantly from the judicial model with which courts are most familiar.
[See also Maritime Broadcasting System Ltd v Canadian Media Guild, 2014 FCA 59 at paras 75-77, [2014] FCJ No. 236]
[44] In Agnaou, Justice Gleason had the opportunity to examine the extent of the Tribunal’s authority when it deals with the admissibility of evidence, and I share the viewpoint she expressed:
[102] As the Supreme Court of Canada stated in CJA, Local 579 v Bradco Construction Ltd, [1993] 2 SCR 316 at para 47, and as this Court noted in Scheuneman and Teeluck, labour tribunals are to be afforded considerable discretion in their assessments of admissibility of evidence. Thus, it will be rare that the refusal to allow evidence will be so significant that it will amount to a denial of procedural fairness; indeed, such a finding may only be made where the evidence in question is central to the position of a party (as it was in Syndicat des employés professionnels de l'Université du Québec à Trois-Rivières v Université du Québec à Trois-Rivières, [1993] 1 SCR 471 at para 47).
[45] It can happen that the rejection of relevant evidence results in a breach of the rules of procedural fairness if the evidence in question was relevant and if the impact of its rejection was such that it tainted the fairness of the process. As Justice Lamer noted in Université du Québec à Trois-Rivières v Larocque, [1993] 1 SCR 471 at para 46, [1993] SCJ No 23:
[46] For my part, I am not prepared to say that the rejection of relevant evidence is automatically a breach of natural justice. A grievance arbitrator is in a privileged position to assess the relevance of evidence presented to him and I do not think it is desirable for the courts, in the guise of protecting the right of parties to be heard, to substitute their own assessment of the evidence for that of the grievance arbitrator. It may happen, however, that the rejection of relevant evidence has such an impact on the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice.
[46] I must therefore determine whether the procedure followed by the Tribunal and the manner in which it treated the admissibility of the evidence were fair, and whether the applicant had an opportunity to express his point of view and participate fully in the decision-making process.
[47] I am now going to deal with the applicant’s specific allegations.
(1) Did the Tribunal breach its duty of procedural fairness in refusing to admit certain exhibits in evidence? [48] The applicant argues that in allowing the objections made by the respondent regarding Exhibits CF-32 and CF-53, the Tribunal prevented him from entering evidence that was central to his allegations of bias on the part of Ms. Clément and to the context of payback of which he was a victim.
[49] As I have already mentioned, Exhibit CF-32 contains, in a bundle, emails concerning a mediation meeting regarding a complaint that the applicant had filed with the Tribunal on July 15, 2009. This complaint concerned an appointment process for PRRA officer positions in CIC. The complaint was settled through a mediation process, and the memorandum of settlement was signed on December 11, 2009.
[50] At the hearing before the Tribunal, the respondent objected to the filing of the memorandum of settlement on the ground that it was protected by the privilege relating to the confidentiality of the mediation process. The Tribunal allowed its objection.
[51] The applicant argues that this evidence was relevant to show the Ms. Clément’s partiality and hostility towards him, and to show that he had a history of disputes with her concerning another appointment process. The applicant also wanted to show that this was not the first time that he had been a target of irregularities in the form of discrimination and barriers to employment and to his professional development. More specifically, the applicant also maintains that the documents contained in Exhibit CF-32 establish that Ms. Clément acted as chairperson in the appointment process that led to the filing of his complaint in 2009. He also claims that this exhibit contradicts the Tribunal’s assertion, in paragraph 53 of its decision, that “the complainant did not present any evidence that Ms. Clément was part of the other assessment board”.
[52] Before the Tribunal, the applicant also wished to introduce Exhibit CF-53 at the pleadings stage. As I have already indicated, Exhibit CF-53 contains an email dated September 15, 2008, addressed to the employees of the Quebec Region of CIC announcing various appointments to the CIC regional office, including the appointment of Ms. Clément to the position of Director, PRRA and CS. Exhibit CF-53 also includes a second email sent by Ms. Clément on July 27, 2012, announcing her retirement.
[53] The respondent objected to the filing of this exhibit on the ground that no witness had been called regarding these emails, and the Tribunal allowed the objection.
[54] The applicant maintains that these emails show the many professional ties between Ms. Clément and the CBSA. In her letter announcing her retirement, Ms. Clément thanks her CBSA colleagues for their collaboration and partnership. The applicant maintains that this document shows the significant influence that Ms. Clément had with the CBSA managers.
[55] I shall first address Exhibit CF-32. Paragraph 50 of the Tribunal’s decision shows that it clearly understood the applicant’s argument:
[50] The complainant submits that Ms. Clément was biased against him because she had been the chair of the assessment board in another appointment process and that he had filed a complaint with the Tribunal regarding that process. He later withdrew the complaint. According to the complainant, Ms. Clément provided negative comments about him as payback for his complaint in the other appointment process.
[56] I have read the documents produced in a bundle under Exhibit CF-32. One can infer from these that Ms. Clément was in fact involved in the appointment process that was the subject of the 2009 complaint and in the mediation process that led to the withdrawal of this complaint. However, the documents do not show that she had acted as chair of the assessment board, but this detail is not important. As for the memorandum of settlement, it shows that the applicant withdrew his complaint in a context of settlement and [translation] “with a view to maintaining collaboration between the Department and the complainant.”
[57] I agree that the Tribunal indicated that the applicant had not presented any evidence showing that Ms. Clément was a part of the assessment board. It did, however, add that even if it had been established that Ms. Clément was a part of the assessment board, this fact did not establish an appearance of bias. The Tribunal also noted that Ms. Clément had declared, in her testimony, that she had never had any disputes with the applicant.
[58] I consider that the refusal to allow this exhibit to be filed did not result in a breach of the rules of procedural fairness. In the first place, in its alternative conclusion on the matter, the Tribunal found that Ms. Clément’s participation in the appointment process leading to the complaint did not prove an appearance of bias. I also share this point of view. Nothing in the documents of Exhibit CF-32 allows one to infer an appearance of bias or a reasonable apprehension of bias against the applicant on the part of Ms. Clément. The very most one can infer is that Ms. Clément was involved in an appointment process in 2009 that led to the filing of a complaint by the applicant, and that this complaint was subsequently settled. This type of situation is common in labour relations, and it cannot be inferred from it that a manager loses his or her impartiality towards an employee because the employee has filed a complaint, a grievance or some other recourse.
[59] It is my view, then, that even if the documents of Exhibit CF-32 had been admitted in evidence, they do not support the applicant’s allegations and would not have been likely to influence the Tribunal’s decision.
[60] I think that the same conclusions apply to the emails in Exhibit CF-53. The fact that Ms. Clément was a senior manager is not disputed. The fact that she held a position of director since 2008 and had had professional ties to the CBSA managers does not allow one to infer that she showed bias when she provided references regarding the applicant’s performance, or that her observations raise a reasonable apprehension of bias. Moreover, the Tribunal’s decision not to allow this exhibit to be filed at the pleadings stage because they had not been introduced by any witness was reasonable. Finally, the refusal to admit these documents in evidence was inconsequential because they did not support the applicant’s allegations.
(2) Did the Tribunal breach procedural fairness in not giving the applicant an opportunity to properly present his arguments pertaining to the payback context? [61] The applicant claims that the Tribunal did not allow him to lead in evidence and fully assert his allegations regarding the context of payback of which he claims he was a victim, and that the Tribunal did not consider the evidence for this payback context, although this was central to his allegation of bias on the part of Ms. Giroux and Ms. Clément. The applicant further maintains that the Tribunal wrongly refused his motion to suspend the proceeding until his complaint of unfair labour practices concerning Ms. Clément’s assistant had been dealt with by the PSLRB.
[62] In so far as the applicant claims there was an error in the assessment of the evidence, namely that the Tribunal failed to consider some evidence concerning the payback context or did not sufficiently deal with these allegations in its decision, I think that these arguments concern the reasonableness of the Tribunal’s decision rather than procedural fairness. Consequently, I will deal with it farther on in my analysis with the reasonableness of the decision.
[63] I shall, however, deal w