Dayfallah v. Canada (Attorney General)

Dayfallah v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2018-11-07
Neutral citation
2018 FC 1120
File numbers
T-153-18
Decision Content
Date: 20181107
Docket: T-153-18
Citation: 2018 FC 1120
Ottawa, Ontario, November 7, 2018
PRESENT: The Honourable Mr. Justice Brown
BETWEEN:
HASSAN DAYFALLAH
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Nature of the matter and summary
[1] This is an application for judicial review, pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7, of the Public Service Commission of Canada’s [Commission] Record of Decision 2017-082-IB [Decision] issued December 19, 2017. The Decision adopted Revised Investigation Report 2016-MOT-00141.25284, which concluded the Applicant committed fraud during a web-based exam he took at home, contrary to section 69 of the Public Service Employment Act, SC 2003, c 22 [PSEA]. This fraud took place during Appointment Process 15-MOT-IA-HRS-84651, which resulted in the Applicant being appointed Senior Policy Analyst (EC-5) in Transport Canada’s Rail Safety division, a position within the public service of Canada.
[2] The fraud found below arose in the following facts.
[3] During the course of the web-based exam, the Applicant not only sent the exam and relevant instructions by email to a friend and former colleague [Former Colleague] but also emailed the Former Colleague his draft answer, coupled with a request for assistance: the email sending the draft answer reads “first thoughts?” It cannot seriously be disputed that asking for assistance from an outsider on a proposed answer and sharing exam information during the course of a web-based take-home exam contravened the terms under which the exam was conducted, and I have so found.
[4] In addition to this instance of what most would consider a simple case of cheating, the record in this case includes the fact that the Applicant consulted with and shared exam information with the same Former Colleague during the course of three other web-based exams for other appointments within the public service of Canada. These other incidents took place at or around the same time as the exam now in issue.
[5] After Commission Staff conducted an investigation into the Applicant’s activities during the course of these multiple take home web-based exams, they sent a Factual Report to the Applicant for comment. After review of the Applicant’s comments, Commission staff prepared and sent an Investigation Report and a letter with Proposed Corrective Action to the Applicant for his comments. After reviewing the Applicant’s comments on both, a Revised Investigation Report was prepared and sent to the Commission for decision. The Proposed Corrective Action was that the Commission order the revocation of the Applicant’s Rail Safety appointment because of fraud, and that for three years the Applicant notify the Commission of other public service applications or employment.
[6] The Commission accepted the Revised Investigation Report and decided the Applicant committed fraud in the appointment process leading to his Rail Safety EC-5 appointment. As a consequence, the Commission ordered that the appointment be revoked by Transport Canada. Also as recommended, the Commission ordered that the Applicant could not accept any position or work in the public service of Canada for a period of three years, without the Commission’s approval. The Commission, as recommended, further ordered that for the next three years, if the Applicant obtained work through casual employment in the public service of Canada without having notified the Commission, the Commission would advise the relevant Deputy Head of his fraud and provide the relevant Deputy Head with copies of the Decision and underlying Revised Investigation Report.
[7] The Commission decided not to exercise its power under section 73 of the PSEA to appoint the Applicant to another position in the public service of Canada. The Applicant did not ask to receive a section 73 appointment when he made submissions on the Proposed Corrective Action, nor did he provide any basis on which a section 73 discretion could be exercised in his favour. Notwithstanding, the Applicant challenges the Commission’s decision not to exercise its discretion under section 73, alleging he should have had an opportunity to comment on it first. He also submits the three year requirements are excessive.
[8] For the reasons that follow, this application is dismissed.
II. Additional factual background
[9] The Applicant began working in the public service of Canada in 2007 and held various positions after that.
[10] In 2015, he applied to be appointed to the Rail Safety Analyst position at Transport Canada. At that time he was in the public service of Canada in the Department of Fisheries / Canadian Coast Guard.
[11] At or about the same time the Applicant was applying for at least three other positions within the public service of Canada also involving web-based exams taken by the Applicant.
A. Applicant’s exam activities investigated by Commission staff
[12] Commission staff became concerned that the Applicant, contrary to exam Guidelines, may have consulted with a third-party individual on draft answers and shared exam material by email with his Former Colleague. Therefore, the Investigations Branch of the Commission conducted a review of emails sent between the Applicant and the Former Colleague in relation to five appointment processes in which the Applicant had applied for employment. The Investigator identified three appointment processes, including the Rail Safety EC-5 appointment, warranting further investigation. A fourth appointment process later became subject to investigation.
[13] At this point, the Commission’s Investigations Branch sent letters to the Applicant and Transport Canada dated August 18, 2016, saying the Commission would conduct an investigation pursuant to section 69 of the PSEA into whether the Applicant committed fraud in the Rail Safety EC-5 appointment processes.
[14] Thereafter, Commission staff interviewed the Applicant and his Former Colleague. The Applicant was accompanied by his Canadian Association of Professional Employees [CAPE] representative, a Labour Relations Officer. CAPE is the Applicant’s union. The Applicant was represented by CAPE at all times.
B. A Factual Report is prepared and commented upon by the Applicant
[15] As a result of its investigation and interviews, the Investigation Branch prepared a Factual Report. The Factual Report referred to all four incidents in which the Applicant consulted and shared exam material with his Former Colleague. The Factual Report was sent for comment by Commission staff to the Applicant and Former Colleague. The Applicant sent his comments on June 26, 2017. The Former Colleague did not file a detailed reply, and appears only to have confirmed receipt of the Factual Report. The Factual Report was before the Commission and is in the Certified Tribunal Record.
C. Investigation Report
[16] After review of the Applicant’s reply, the Investigator prepared a document entitled Investigation Report 2016-MOT-00141.25284, which concluded the Applicant committed fraud in the Rail Safety EC-5 appointment process in that he knowingly consulted and shared exam information with his Former Colleague during the web-based take-home exam, contrary to the exam Guidelines. The Investigation Report concluded the Applicant did this “to increase his chances of receiving an appointment.”
[17] Commission staff sent the Investigation Report for comment to the Applicant and Transport Canada. Commission staff also sent both parties, and CAPE, the Proposed Corrective Action setting out sanctions for fraud to be recommended by Commission staff to the Commission. Commission staff invited comments on both.
[18] The Investigation Report summarized the facts gathered during the investigation as follows:
Summary of facts gathered during the investigation
Relationship between Mr. Hassan Dayfallah and [Former Colleague]
11. Mr. Dayfallah indicated that he has worked in the public service since 2007. He worked with [Former Colleague] in 2008 at the Department of Fisheries and Oceans Canada (DFO); they also worked together at the Canadian Coast Guard. Mr. Dayfallah considered [Former Colleague] to be a friend, colleague and mentor, though they do not socialize outside the workplace. [Former Colleague] provided Mr. Dayfallah with coaching, career advice and assistance whenever he had a question. Mr. Dayfallah commonly asked [Former Colleague] to proofread his work because he considered [Former Colleague] to have exceptional writing skills.
12. [Former Colleague] occupies the position of [ ] group and level with DFO. [Former Colleague] met Mr. Dayfallah in 2008, when they worked together as colleagues. He has always been supportive of Mr. Dayfallah. [Former Colleague] has proofread Mr. Dayfallah’s briefing notes, in the context of work, and has reviewed the statement of qualifications for appointment processes, at Mr. Dayfallah’s request. [Former Colleague] considered Mr. Dayfallah to be a ‘work friend’ – they did not socialize outside the workplace.
Take-home Exam
13. Mr. Dayfallah explained that he did not read the exam instructions. As a result of his medical condition, Mr. Dayfallah experienced anxiety attacks and nausea. When he received the exam, he just opened it and began to work on it. Mr. Dayfallah explained that he does not think clearly, especially when completing timed exercises or exercises where pressure is involved. As a result of his condition, Mr. Dayfallah focusses on the task at hand; his judgment or lack of attention to detail, in not reading the instructions, was also impacted by his condition. Regarding the invitation email, Mr. Dayfallah only recalled reading the date and time for the exam and the qualifications that would be assessed.
14. Mr. Dayfallah explained that although he was not feeling well on the day of the exam, he decided to write it because he had prepared for it. According to Mr. Dayfallah, he was able to outline a list of rail safety risks and issues and broader vulnerabilities associated with the transportation and critical infrastructure owing to work in his Master’s program and reading the TC website. He also consulted the following website to build his analysis on various issues, trends and operational challenges: [Federal Court note: URL omitted]
15. Mr. Dayfallah indicated that he does not read instructions for take-home exams. He only takes note of the start and end times and the qualifications being assessed. His general understanding of the test instructions was not to plagiarize –not to take someone else’s work and disguise it as your own. In the case of ‘closed-book’ exams, candidates could not seek any kind of assistance. When completing take-home exams at the post-graduate level, students were instructed not to plagiarize, however, they were permitted to seek assistance, discuss it with others and have someone proofread it.
16. On December 7, 2015, at 8:49 a.m., Mr. Dayfallah forwarded the two emails (the invitation email of December 1st and the exam email of December 7th) to [Former Colleague.] The attachments, from both emails, were also sent.
17. At 10:10 a.m. Mr. Dayfallah sent an email to [Former Colleague] with the message “First thoughts?” The Subject was “EC-05 – exam FR EN final.docx”. Attached to the email was the briefing note prepared by Mr. Dayfallah.
18. Mr. Dayfallah explained that he was not seeking assistance from [Former Colleague] during the exam period. The phrase “first thoughts?” was Mr. Dayfallah’s way of indicating that he wanted to discuss the exam with [Former Colleague] later that day or at a time convenient to [Former Colleague.] Mr. Dayfallah indicated that the briefing note he sent to [Former Colleague] consisted of the main points he wanted to make; he had a good understanding of the issues because they related to his field of study.
19. Mr. Dayfallah indicated that he struggles when writing exams due to his medical condition which has an impact on his ability to read and write in the mornings. As such he wanted to discuss the exam with someone he could trust. Mr. Dayfallah did not tell anyone about his medical condition because he thought it would negatively affect his career.
20. [Former Colleague] indicated that he did not read or respond to Mr. Dayfallah’s emails nor did he provide him with any assistance; [Former Colleague] may not have been at his desk or available at the time the emails were sent out.
21. Mr. Dayfallah elaborated on the points in the briefing note and made some changes before submitting his completed exam. He submitted his completed exam near the end of the allotted time because he read his response many times to ensure that there were no grammatical errors. According to Mr. Dayfallah, he had not received any assistance in completing the exam and it represented his own work. It was noted that Mr. Dayfallah submitted his completed exam to TC on December 7, 2015 at 10:33 a.m.
22. On December 7, 2015, at 10:35 a.m., Mr. Dayfallah sent an email to [Former Colleague] indicating “you think it’s a pass?” Mr. Dayfallah’s completed exam was attached to the email.
23. Although Mr. Dayfallah wanted to discuss the exam with [Former Colleague] after the exam period, it was not possible because of their busy work schedules.
Medical Notes
24. During Mr. Dayfallah’s interview for this investigation, he provided a medical note dated October 16, 2016. This note indicated that Mr. Dayfallah was not to participate in written appointment processes in the morning from 8:00 to noon.
25. On February 4, 2017, Mr. Dayfallah emailed two additional medical notes: the first (which covered the period from 2013) was dated January 17, 2017, and it indicated that Mr. Dayfallah continued to work under modified work accommodations in the morning; the second was dated January 24, 2017, and it described Mr. Dayfallah’s medical condition and the symptoms associated with it. Mr. Dayfallah indicated that he provided his current employer with these medical certificates.
26. On June 26, 2017 (following the issuance of the Factual Report) Mr. Dayfallah provided a copy of the Public Service Commission’s (the Commission) “Candidate Accommodation Questionnaire, Temporary Conditions and other Conditions” which was completed by his physician and dated October 27, 2016. It was noted that the information in the questionnaire reflected the information provided in the medical notes.
[19] The Investigation Report referred to the other three appointment processes in which the Applicant may have committed fraud:
4. Information gathered in the context of investigation file numbers 2016-PSP-00011.24217 and 2016-PSP-000243783, indicated that Mr. Dayfallah may have committed fraud in three other appointment processes, including appointment process 15-MOT-IA-HRS-84651, conducted by Transport Canada (TC) to staff the position of Analyst, at the EC-4 group and level. The interviews with Mr. Dayfallah for the three appointment processes were conducted concurrently, on October 25, 2016.
...
41. A reasonable person considering the entire circumstances of this case would view the fact that Mr. Dayfallah emailed the exam and his response, to [the Former Colleague] during the exam period, and asked for his thoughts, as being dishonest. As Mr. Dayfallah sought [the Former Colleague’s] help during the exam for three other appointment processes, it is more likely than not that he knew his actions were not permitted. In seeking help from [the Former Colleague] Mr. Dayfallah wanted to demonstrate to the assessment board that he meets the essential qualifications for the work to be performed and to improve his chances for an appointment. Mr. Dayfallah was dishonest in his actions and as such, the first essential element of fraud has been met.
D. Proposed Corrective Action
[20] As a consequence of the Applicant’s fraud in the appointment process, the Investigations Branch set out Proposed Corrective Actions it would recommend to the Commission. As noted, these were sent to the Applicant for comment. The three Proposed Corrective Actions were: 1) that the Applicant’s appointment to the Rail Safety EC-5 position at Transport Canada obtained through fraud be revoked; 2) that the Commission order that for three years the Applicant not accept without the Commission’s approval, any position or work in the public service of Canada; and 3) the Commission order that if in the same three years the Applicant, without having notified the Commission, obtained work through casual employment in the public service of Canada, the Commission would advise the relevant Deputy Head of the fraud committed by the Applicant and provide the Deputy with copies of its Decision and the underlying Investigation Report.
E. Applicant’s comments on the Investigation Report and Proposed Corrective Action
[21] The Applicant and Transport Canada were invited to comment on both the Investigation Report and the Proposed Corrective Action. Transport Canada said it was satisfied with both the Investigation Report’s conclusions and the Proposed Corrective Action.
[22] The Applicant provided his comments on the Investigation Report and Proposed Corrective Action on October 6, 2017. He said he had not committed fraud because: 1) he alleged he did not intentionally cheat or breach the rules of the appointment process and 2) he did not commit fraud with respect to the exam because neither dishonesty nor deprivation, nor risk of deprivation were established. To the second point, the Applicant explained he did not receive assistance for this exam from the Former Colleague and the exam response was 100% his own, therefore he did not have an advantage during the process. Further, he said the Proposed Corrective Actions were excessive and out of line with previous disciplinary decisions, citing two arbitration precedents, one from the Canada Public Service Labour Relations Board and the other from the Canada Public Service Relations Board.
[23] I note the Applicant no longer denies he breached the second branch of the test for fraud; he admits his actions during the exam constituted deprivation or risk of deprivation. However, the Applicant continues to maintain he did not intentionally cheat or breach the rules, thus he submits, he did not commit fraud.
[24] The Applicant also commented on the Proposed Corrective Action. He submitted that if fraud was found, the sanctions proposed were too harsh. However he did not ask the Commission to appoint him to another position under section 73, if it found fraud against him.
F. Revised Investigation Report and the Commission’s Decision
[25] After considering the Applicant’s submissions, the Investigations Branch submitted a Revised Investigation Report dated November 21, 2017, to the Commission for decision. The Investigations Branch also submitted its Proposed Corrective Action to the Commission for decision. There are no material differences between the original Investigation Report and Proposed Corrective Actions, and the Revised Investigation Report and Proposed Corrective Action.
[26] The Respondent filed an affidavit of a senior government official with the Commission, which provided process information at paras 8–9:
8. On December 19, 2017, the Commission held a meeting during which time it considered all comments received in the context of all four investigations, including Investigation File #2016-MOT-00141.25285. During this meeting, the Commission considered whether it would use its discretionary authority under section 73 of the PSEA to reappoint the Applicant to another position and decided not to authorize the use of this authority.
9. On December 19, 2017, the Commission made its final decision accepting the four Investigation Reports and ordering the corrective action set out in the four Records of Decision. The four Investigation Reports and the four Records of Decision were transmitted to the Applicant, with a covering letter dated December 20, 2017 [footnote omitted].
[27] The Revised Investigation Report relied upon by and thus forming part of the Commission’s Decision, contained the following analysis:
Dishonesty
...
38. The evidence clearly shows that on December 7, 2015, Mr. Dayfallah sent emails to [the Former Colleague] at 8:49 a.m. and 10:10 a.m., which correspond to the time he was writing the exam, from 8:30 to 10:30 a.m.
39. In the first email, Mr. Dayfallah forwarded the invitation email and the exam email, which included the instructions and the exam, respectively. In the second email, Mr. Dayfallah attached the response he had prepared and stated “first thoughts?” Mr. Dayfallah’s explanation that he intended to discuss the exam with [the Former Colleague] later that day or at a time convenient to [the Former Colleague] was not credible.
40. Considering that Mr. Dayfallah sent two emails to [the Former Colleague] during the exam period and asked [the Former Colleague] for his “thoughts” regarding his response, it is more likely than not that Mr. Dayfallah was seeking [the Former Colleague’s] help in responding to the exam question.
41. A reasonable person considering the entire circumstances of this case would view the fact that Mr. Dayfallah emailed the exam and his response, to [the Former Colleague] during the exam period, and asked for his thoughts, as being dishonest. As Mr. Dayfallah sought [the Former Colleague’s] help during the exam for three other appointment processes, it is more likely than not that he knew his actions were not permitted. In seeking help from [the Former Colleague] Mr. Dayfallah wanted to demonstrate to the assessment board that he meets the essential qualifications for the work to be performed and to improve his chances for an appointment. Mr. Dayfallah was dishonest in his actions and as such, the first essential element of fraud has been met.
...
CONCLUSION
45. The evidence demonstrates, on a balance of probabilities, that Mr. Dayfallah committed fraud in appointment process 15-MOT-IA-HRS-84651, conducted by Transport Canada, by knowingly consulting with another person, [the Former Colleague], during the take-home written exam and sharing information with this individual, which was contrary to the instructions, and this, in order to increase his chances of receiving an appointment.
[Emphasis added.]
[28] The Commission in its Decision accepted the Revised Investigation Report and found the Applicant committed fraud in obtaining the Rail Safety EC-5 position. It revoked the appointment. The Commission also imposed the sanctions set out in the Proposed Corrective Action. The Decision states:
RECORD OF DECISION 2017-082-IB
Corrective action pursuant to section 69 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13) (PSEA), as a result of an investigation conducted under section 69 of the same Act.
The Commission accepts Investigation Report 2016-MOT-00141.25284.
The investigation concluded that Mr. Hassan Dayfallah committed fraud in advertised internal appointment process 15-MOT-IA-HRS-84651, conducted to staff a position of Analyst, at the EC-5 group and level with the Department of Transport, by consulting another person during the take-home written exam and by sharing exam information with this person, which was contrary to the instructions.
The Commission has considered all the comments received. The comments do not contain new information that would warrant a change in the Investigation Report or the corrective action used for consultation.
In accordance with its authority to take corrective action under section 69 of the PSEA, the Commission hereby orders that:
• the appointment of Mr. Dayfallah to the position of Analyst, at the EC-5 group and level, made as a result of advertised internal appointment process 15-MOT-IA-HRS-84651, be revoked. The Department of Transport must complete the documentation required to implement the revocation and confirm to the Oversight and Investigations Sector of the Public Service Commission that it has done so within 60 days of the signing of this Record of Decision. Following the revocation of his appointment, Mr. Dayfallah will cease to be employed in the federal public service;
• for a period of three years from the signing of this Record of Decision, Mr. Dayfallah must obtain the Commission’s written approval before accepting any position or work within the federal public service. Should Mr. Dayfallah accept a term, acting or indeterminate appointment in the federal public service without having first obtained such an approval, his appointment will be revoked; and
• for a period of three years from the signing of this Record of Decision, should Mr. Dayfallah obtain work through casual employment within the federal public service without first notifying the Commission, a letter will be sent by the Oversight and Investigations Sector of the Public Service Commission to the Deputy Head advising of the fraud committed by Mr. Dayfallah with a copy of Investigation Report 2016-MOT-00141.25284 and this Record of Decision.
[29] The Commission notified the Applicant and Transport Canada of its Decision by separate letters dated December 20, 2017.
[30] The letter to Transport Canada’s Deputy Minister contained the following paragraph, which was not present in the Commission’s letter to Applicant:
The Commission has also decided that the appointment authority provided by section 73 of the Public Service Employment Act will not be exercised in this case to re-appoint Mr. Dayfallah to another position.
G. Letter from Transport Canada’s Deputy Minister to the Applicant
[31] In accordance with the Commission’s Decision, Transport Canada’s Deputy Minister sent the Applicant a letter dated January 15, 2018, revoking his Rail Safety EC-5 appointment.
[32] On January 24, 2018, the Applicant filed a grievance under section 208 of Federal Public Sector Labour Relations Act, SC 2003, c 22, section 2 [FPSLRA], challenging his “employer’s decision to terminate” his employment at Transport Canada. This grievance is pending.
III. Issues
[33] The Applicant submits the following issues:
a) Did the Commission breach procedural fairness when it failed to alert the Applicant to the possibility that it may exercise its authority under s. 73 of the PSEA, and when it failed to give the Applicant the opportunity to comment on this possibility?
b) Was the Commission’s decision tainted by a reasonable apprehension of bias?
c) Was the Commission’s finding that the Applicant committed fraud in the appointment process, and/or its decision to revoke the Applicant’s appointment, reasonable?
d) Did the Commission overstep its statutory jurisdiction when it ordered that the Applicant, as a result of the revocation of his appointment, would cease to be an employee in the federal public service?
IV. Standard of review
[34] In Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] at paras 57, 62 the Supreme Court of Canada held a standard of review analysis is unnecessary where “the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.” The standard of review for the Commission’s interpretation and application of section 69 of the PSEA is reasonableness: Lemelin v Canada (Attorney General), 2018 FC 286 at para 41 [Lemelin], per Gagné J. The Federal Court of Appeal has confirmed reasonableness is the standard of review for decisions of a tribunal involving interpretation of its home statute: Adamson v Canada (Human Rights Commission), 2015 FCA 153 at para 30.
[35] Significant deference is owed to the Commission’s decisions in light of the “discrete and special nature of the Public Service regime” and the scope of discretion given to the Commission within this regime: MacAdam v Canada (Attorney General), 2014 FC 443 [MacAdam], per Mosley J at paras 50 and 77:
[50] I agree with the parties that the question has been satisfactorily determined by the prior jurisprudence and does not require a standard of review analysis. The interpretation and application of sections 66 and 68 of the PSEA are, among other provisions, at the heart of the Commission’s mandate and expertise: Seck v Canada (Attorney General), 2011 FC 1355 [Seck] at paras 10-11. As stated in Hughes v Canada (Attorney General), 2009 FC 573 at para 26, the scope of discretion given to the Commission, combined with the “discrete and special” nature of the Public Service regime, and the Commission's expertise within that regime signal that deference is due to decisions of the Commission. Accordingly, the decision is reviewable on the standard of reasonableness.
[77] I agree with the respondent that the Commission must be accorded significant deference in interpreting its home statute: Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at paras 30, 39. The purpose of the PSEA was to provide a more flexible, values-based system, and this includes the administration of section 66 and the interpretation of “improper conduct”. Improper conduct may reasonably be found where unsuitable behaviour related to the appointment process undermines one or more of the PSEA’s guiding values. Contrary to the submissions of the applicants, the definition employed by the Commission is not overly subjective, and, on a plain language reading of the legislation, a bad faith intent is not a necessary requirement notwithstanding its incorporation in prior PSC decisions.
[36] These findings accord with the recent determination of the Supreme Court of Canada that reasonableness is presumptively the standard of review of tribunal decisions: Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 [CHRC] at para 27:
[27] This Court has for years attempted to simplify the standard of review analysis in order to “get the parties away from arguing about the tests and back to arguing about the substantive merits of their case” (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 36, citing Dunsmuir, at para. 145, per Binnie J.). To this end, there is a well-established presumption that, where an administrative body interprets its home statute, the reasonableness standard applies (Dunsmuir, at para. 54; Alberta Teachers, at para. 39; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770, at para. 15; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 22; Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3, at paras. 33-34; Delta Air Lines Inc. v. Lukács, 2018 SCC 2, at para. 8).
[37] In Dunsmuir at para 47, the Supreme Court of Canada explained what is required of a court reviewing on the reasonableness standard of review:
…A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[38] When reviewing for reasonableness, this Court should only interfere if the Tribunal’s conclusions fall outside the range of possible and acceptable outcomes that are defensible on the facts and law. Therefore, there may be multiple possible outcomes that meet the Dunsmuir standard for reasonableness. In addition, it is well established that on judicial review, courts must refrain from reweighing and reassessing the evidence considered by the decision maker: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 64. In CHRC, the Supreme Court of Canada synthesized jurisprudence to explain what is required of a court reviewing on the reasonableness standard of review:
[55] In reasonableness review, the reviewing court is concerned mostly with “the existence of justification, transparency and intelligibility within the decision-making process” and with determining “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, at para. 47; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 14). When applied to a statutory interpretation exercise, reasonableness review recognizes that the delegated decision maker is better situated to understand the policy concerns and context needed to resolve any ambiguities in the statute (McLean, at para. 33). Reviewing courts must also refrain from reweighing and reassessing the evidence considered by the decision maker (Khosa, at para. 64). At its core, reasonableness review recognizes the legitimacy of multiple possible outcomes, even where they are not the court’s preferred solution.
[39] Questions of procedural fairness are reviewed on the correctness standard: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43. That said, I note that in Bergeron v Canada (Attorney General, 2015 FCA 160 [Bergeron] at para 69, the Federal Court of Appeal said a correctness review may need to take place in “a manner ‘respectful of the [decision-maker’s] choices’ with ‘a degree of deference’: Re: Sound v Fitness Industry Council of Canada, 2014 FCA 48, 455 N.R. 87 at paragraph 42.” But see Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69. That said, as outlined below, in the case at bar the outcome is the same no matter which approach is applied.
[40] In Dunsmuir at para 50, the Supreme Court of Canada explained what is required of a court reviewing on the correctness standard of review:
[50] … When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.
[41] The Supreme Court of Canada also instructs that judicial review is not a line-by-line treasure hunt for errors; the decision should be approached as an organic whole: Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34. Further, a reviewing court must determine whether the decision, viewed as a whole in the context of the record, is reasonable: Construction Labour Relations v Driver Iron Inc, 2012 SCC 65; see also Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses].
V. Analysis
A. Did the Commission breach procedural fairness when it failed to alert the Applicant to the possibility that it may exercise its authority under s. 73 of the PSEA, and when it failed to give the Applicant the opportunity to comment on this possibility?
[42] Section 73 of the PSEA grants a discretion to the Commission to appoint a person to another position where the Commission has revoked an appointment under section 69 (as here):
Re-appointment following revocation
Nomination à un autre poste
73 Where the appointment of a person is revoked under any of sections 66 to 69, the Commission may appoint that person to another position if the Commission is satisfied that the person meets the essential qualifications referred to in paragraph 30(2)(a).
73 En cas de révocation de la nomination en vertu de l’un des articles 66 à 69, la Commission peut nommer la personne visée à un poste pour lequel, selon elle, celle-ci possède les qualifications essentielles visées à l’alinéa 30(2)a).
[Emphasis added.]
[Nos soulignés.]
[43] By way of background, section 11 of the PSEA authorizes the Public Service Commission of Canada to make appointments to and within the public service of Canada:
Mandate
Mission
11 The mandate of the Commission is
11 La Commission a pour mission:
(a) to appoint, or provide for the appointment of, persons to or from within the public service in accordance with this Act;
a) de nommer ou faire nommer à la fonction publique, conformément à la présente loi, des personnes appartenant ou non à celle-ci;
(b) to conduct investigations and audits in accordance with this Act; and
b) d’effectuer des enquêtes et des vérifications conformément à la présente loi;
(c) to administer the provisions of this Act relating to political activities of employees and deputy heads.
c) d’appliquer les dispositions de la présente loi concernant les activités politiques des fonctionnaires et des administrateurs généraux.
[44] The Commission is responsible for safeguarding the integrity of the staffing process and the principle of merit in the federal public service as set out in the preamble and subsection 30(1) of the PSEA. One of the ways the Commission carries out its oversight capacity is by investigating appointment processes as authorized by subsection 11(b) and section 69 of the PSEA. The Commission is empowered to revoke an appointment where fraud has occurred in an appointment process, per section 69:
Fraud
Fraude
69 If it has reason to believe that fraud may have occurred in an appointment process, the Commission may investigate the appointment process and, if it is satisfied that fraud has occurred, the Commission may
69 La Commission peut mener une enquête si elle a des motifs de croire qu’il pourrait y avoir eu fraude dans le processus de nomination; si elle est convaincue de l’existence de la fraude, elle peut :
(a) revoke the appointment or not make the appointment, as the case may be; and
a) révoquer la nomination ou ne pas faire la nomination, selon le cas;
(b) take any corrective action that it considers appropriate.
b) prendre les mesures correctives qu’elle estime indiquées.
[45] I agree with the Applicant that this issue raises a question of procedural fairness. Therefore the standard of review is correctness, and no deference is owed. I also agree that procedural fairness rises to a high level where an individual’s ability to continue in his or her job is at stake: Lemelin at para 43. Courts including the Supreme Court of Canada have confirmed that procedural fairness requires: (1) the Commission inform the individual subject to the investigation of the substance of the evidence obtained by the investigator and put before the Commission and; (2) the individual be provided the opportunity to respond to this evidence and make all relevant representations in relation thereto.
[46] That said, I am not persuaded the Applicant’s submissions have merit. In my respectful view, the Commission satisfied this standard in this case. The Commission through its staff provided the Factual Report to the Applicant and his union for comment; the Applicant availed himself of that opportunity. The Commission then provided its Investigation Report to the Applicant and CAPE for comment; the Applicant made comments.
[47] Critically in this connection and in addition, Commission staff provided the Applicant and CAPE with the Proposed Corrective Action they proposed to recommend to the Commission. Commission staff invited comments on the Proposed Corrective Action; once again the Applicant provided his input and made submissions on corrective action.
[48] I agree with the Respondent that the Applicant had both the “substance of the case” and the “substance of the evidence obtained by the investigator”. The suggestion that more is