Agnaou v. Canada (Attorney General)

Agnaou v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2014-09-05
Neutral citation
2014 FC 850
File numbers
T-1391-12
Decision Content
Date: 20140905
Docket: T-1391-12
Citation: 2014 FC 850
Ottawa, Ontario, September 5, 2014
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
YACINE AGNAOU
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS AND JUDGMENT
[1] The applicant, Yacine Agnaou, is a lawyer who worked for the Department of Justice [DOJ] in its Regional Office in Quebec City, where he occupied a non-managerial position classified at the LA-02A group and level. He is a member of a visible minority, as that term is defined in the Employment Equity Act, SC 1995, c 44 [the EEA].
[2] In April 2008, the DOJ posted a Job Opportunity Advertisement for two positions in the Quebec Regional Office, one for Associate Regional Director and the other for Law Directorate Director. Both positions were classified at the LA-03A group and level, two levels above the applicant’s position. Both positions involved the management of a number of subordinates. The employer established as an essential qualification for both the positions that a candidate possess at least six months’ experience within the preceding two years in human resources management in the federal public service. Mr. Agnaou applied for the positions but his candidacy was screened out at the initial stage because he lacked the requisite human resources management experience.
[3] Mr. Agnaou filed a complaint with the Public Service Staffing Tribunal [the PSST] in respect of the competition, alleging the experience requirement was discriminatory as it adversely impacted members of visible minorities. He also alleged that the employer had abused its authority in the staffing process by ignoring its employment equity obligations.
[4] After multiple days of hearing, during which several witnesses testified and thousands of pages of documentary exhibits were filed, Vice-Chairperson John Mooney of the PSST dismissed Mr. Agnaou’s complaint, finding that Mr. Agnaou had not established a prima facie case of discrimination and had not shown there to have been any abuse of authority in the staffing process.
[5] In the present application for judicial review, Mr. Agnaou seeks to set aside the June 18, 2012 decision dismissing his complaint and to have the Court find that his rights under the Canadian Human Rights Act, RSC 1985, c H-6 [the CHRA] and under the Public Service Employment Act, SC 2003, c 22, ss 12, 13 [the PSEA] were violated by the DOJ in the staffing process. Mr. Agnaou raises numerous arguments in this regard, asserting that the PSST violated his procedural fairness rights in a variety of ways and committed multiple reviewable errors in the determination of the legal principles applicable to his claim and in respect of the assessment of its merits.
[6] For the reasons set out below, I have determined that Mr. Agnaou’s procedural fairness rights were not violated, that Vice-Chairperson Mooney committed no reviewable error in the decision and that this application for judicial review will therefore be dismissed, with costs.
I. Preliminary Matters [7] There are two preliminary issues raised by the respondent that require determination. More specifically, counsel appearing on behalf of the employer first argues that Mr. Agnaou named the incorrect parties as respondents to this application and ought to have joined only the Attorney General of Canada as opposed to the Deputy Minister of Justice and the Public Service Commission [PSC] as respondents. Secondly, the respondents argue that Exhibit R-90 to the August 9, 2012 affidavit of Mr. Agnaou, and all references to it in his materials, should be struck from the record as the exhibit was not before the PSST. The document in question is a 64 page written argument that Mr. Agnaou was not able to file with the PSST as Vice-Chairperson Mooney set a page limit of 30 pages for the parties’ written submissions.
[8] Mr. Agnaou disagrees and submits that he has followed the requirements of Rule 303 of the Federal Courts Rules, SOR/98-106 [the Rules] in naming the Deputy Minster of Justice and the PSC as respondents. He also claims that Exhibit R-90 is admissible as he confirmed the accuracy of its factual content in paragraph 152 of his affidavit, where he states that “[t]ous les faits que je relate dans les pieces R-89 et R-90 sont vrais”. He argues that the facts contained in Exhibit R-90 regarding witnesses’ testimony and what transpired before the PSST must be admissible as, in the absence of a transcript, there is no other way for him to put before the Court the details of the evidence before the PSST or regarding what transpired before it.
[9] Turning, first, to the issue of the proper respondents, Rule 303(1)(a) requires that an applicant in a judicial review application name as a respondent every person who is directly affected by the order sought in the application, other than the tribunal whose decision is being reviewed. In addition, Rule 303(2) provides that where there is no person who can be named as being directly affected by an application, the proper respondent is the Attorney General of Canada.
[10] The recent jurisprudence reveals a lack of uniformity with respect to who is named as the respondent in cases judicially reviewing decisions of the PSST. Several cases name only the Attorney General, as the respondent argues is proper (see e.g. Kim v Canada (Attorney General), 2014 FC 369; Kraya v Canada (Attorney General), 2013 FC 1045 [Kraya]; Boshra v Canada (Attorney General), 2012 FC 681; Seck c Canada (Procureur général), 2011 FC 1355; Alexander v Canada (Attorney General), 2011 FC 1278). Other cases name both the Attorney General and the PSC as respondents (see e.g. Kane v Canada (Attorney General), 2009 FC 740; Smith v Canada (Attorney General), 2011 FC 1401), while in one Court of Appeal case, only the PSC was named (see Abi-Mansour v Canada (Public Service Commission), 2014 FCA 60). In some cases, the particular branch of the government where the employee worked was named as the sole respondent (see e.g. Rameau c L'Agence canadienne de développement international, 2014 FC 361; Abi-Mansour v Canada (Foreign Affairs), 2013 FC 1170 [Abi-Mansour]; Jalal v Canada (Minister of Human Resources and Skills Development), 2013 FC 611 [Jalal]). In one case, the Deputy Minister of Justice and the PSC were named as the respondents (see Lavigne c Canada (Ministre de la Justice), 2009 FC 684), which is what Mr. Agnaou argues is appropriate here. It does not appear that the proper identity of the respondent has been addressed in any of these cases, and thus I must decide the issue.
[11] I agree with the respondent that only the Attorney General of Canada ought to be named as respondent on judicial review of a decision of the PSST. In this regard, while it is common practice to name as respondents in a judicial review application those parties who are adverse in interest to the applicant in a proceeding before the tribunal, the PSC and the Deputy Minister of Justice are different from other respondents who are typically so named. More specifically, the role of the PSC before the PSST is not necessarily one of adversity, and it will not necessarily be impacted by the order sought in this application. As for the Deputy Minister of Justice, there is an individual who holds this position from time to time, and he or she is not analogous to the employer or the staffing authority at the DOJ. I therefore believe that the correct respondent is the Attorney General under Rule 303 of the Rules, and will accordingly amend the style of cause in the manner sought by the respondent.
[12] Turning, next, to the issue the admissibility of Exhibit R-90, in Assn of Universities & Colleges of Canada v Canadian Copyright Licensing Agency, 2012 FCA 22 [CCLA], Justice Stratas noted that “as a general rule, the evidentiary record before this Court on judicial review is restricted to the evidentiary record that was before the Board. In other words, evidence that was not before the Board and that goes to the merits of the matter before the Board is not admissible in an application for judicial review in this Court” (at para 19). He goes on to list three non-exhaustive exceptions when new evidence may be submitted, at para 20:
i. Sometimes this Court will receive an affidavit that provides general background in circumstances where that information might assist it in understanding the issues relevant to the judicial review.
ii. 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.
iii. Sometimes an affidavit is received on judicial review in order to highlight the complete absence of evidence before the administrative decision-maker when it made a particular finding.
[13] Portions of paragraphs 38, 45-48, and 50-56 of Exhibit R-90 do set out facts that are pertinent to Mr. Agnaou’s claims of procedural defects or set out what he claims some of the testimony was before the PSST. In the circumstances of this case, this type of evidence is admissible under the principles from the CCLA case, and I have considered the evidence of this nature in the foregoing paragraphs of Exhibit R-90 in making this decision.
II. The Decision and the Procedural Rulings made by the PSST [14] Having dealt with the preliminary issues, I turn now to consideration of Mr. Agnaou’s various challenges to the decision and commence by reviewing the decision and the several procedural rulings that Mr. Agnaou challenges in this application. Because Mr. Agnaou challenges virtually every aspect of the decision, it is necessary to provide a detailed review of it.
[15] The PSST heard Mr. Agnaou’s case over the course of 11 days, from May to December, 2010. Vice-Chairperson Mooney also held teleconferences with the parties, which led to interlocutory rulings. Prior to Mr. Mooney’s being seized with the file, another member of the PSST and the PSST’s Chairperson, Mr. Giguère, made rulings on procedural issues. The various interlocutory rulings made by the PSST covered a variety of issues, including documentary disclosure, requests for particulars made by Mr. Agnaou, requests for adjournments and extensions of time, procedural rulings on the order in which witnesses would testify, a refusal of Mr. Agnaou’s request for an order restraining counsel for the DOJ from discussing the case with witnesses prior to their testimony and denial of Mr. Agnaou’s requests that Vice-Chairperson Mooney reduce his interlocutory rulings to writing and arrange for the production of a transcript of the hearings. In addition, following the completion of the hearing, Mr. Agnaou sought to file additional evidence.
[16] In the decision, Vice-Chairperson Mooney commenced by ruling on and rejecting Mr. Agnaou’s request to file additional evidence. The evidence in question consisted of three elements: first, emails and notes Mr. Agnaou obtained from the DOJ through an application under the Access to Information Act, RSC 1985, c A-1 [ATIA] , which he alleged demonstrated that counsel for the employer had violated the Vice-Chairperson’s order regarding the exclusion of witnesses; second, evidence concerning the work done and positions subsequently held by the two candidates who were successful in the disputed competition; and third, evidence regarding another subsequent competition that Mr. Agnaou was unsuccessful in. In refusing to admit these documents, the Vice-Chairperson applied the tripartite test from 671122 Ontario Ltd v Sagaz Industries Canada Inc, 2001 SCC 59 [Sagaz] and Whyte v Canadian National Railway, 2010 CHRT 6 at para 30 [Whyte], which sets the following three conditions for the acceptance of evidence following the close of a case:
1. the party seeking to file the additional evidence must demonstrate that it could not have been obtained with reasonable diligence for use at the hearing;
2. the evidence must be such that, if accepted, would probably have an important impact on the result of the case, without necessarily being determinative; and
3. the evidence must appear to be credible.
[17] The Vice-Chairperson held that none of the additional evidence that Mr. Agnaou sought to file met the second criterion. As concerns the documents related to the alleged violation of the exclusionary order, the Vice-Chairperson held that the documents Mr. Agnaou sought to tender fell short of demonstrating any violation of the order and therefore would have no impact on the outcome of the case. Likewise, he found the proposed evidence concerning where the successful incumbents were posted after the competition and regarding to Mr. Agnaou’s lack of success in another competition failed to meet the second criterion for admissibility. In the case of the successful candidates, he found that the evidence was not relevant to the issues before the PSST because there was no need to address remedy and, in the case of the evidence regarding what transpired in respect of Mr. Agnaou’s application in a subsequent competition for a position in Ottawa, he found it to be irrelevant to the complaint.
[18] After disposing of the evidentiary issues, Vice-Chairperson Mooney next turned to Mr. Agnaou’s claim that the human resources management experience qualification was discriminatory. After reviewing the PSST’s jurisdiction to assess claims of discrimination, the Vice-Chairperson set out the legal principles applicable to the assessment of discrimination and cited from several decisions, including the seminal case of the Supreme Court of Canada in Ontario (Human Rights Commission) v Simpsons-Sears Ltd, [1985] 2 SCR 536 [O’Malley]. In this regard, he first noted that in a claim of discrimination the burden is on the complainant to establish a prima facie case, which may be done if the complainant calls sufficient evidence to justify a finding of discrimination in the absence of an explanation from the respondent. Second, the Vice-Chairperson noted that prima facie proof is often circumstantial and held that the test applicable to the assessment of the sufficiency of circumstantial evidence involves the assessment of whether the evidence offered in support of the inference of discrimination renders an inference of discriminatory conduct by the respondent more probable than other possible inferences or hypotheses. Finally, Vice-Chairperson Mooney noted that an applicant must demonstrate the existence of a link between his or her individual circumstances and the circumstantial evidence to make out a prima facie case of discrimination.
[19] After setting out these general principles, the Vice-Chairperson then applied them to Mr. Agnaou’s claim and summarised the evidence that the applicant had called in support of his claim of discrimination. This consisted principally of statistics drawn from several sources as well as statements made by the former Deputy Minister of Justice regarding the under-representation of members of visible minorities, women and aboriginal employees in the senior echelons at the DOJ. The Vice-Chairperson held that the evidence tendered did not establish a prima facie case of discrimination for two reasons.
[20] First, as concerns the statements made by the former Deputy Minister of Justice, Vice-Chairperson Mooney noted that the statements did not constitute an admission that members of visible minorities are under-represented in the senior echelons of the DOJ. Rather, the statements made by the Deputy Minister referred to all groups protected under the EEA, namely aboriginals, those with disabilities and members of visible minorities, and indicated that, collectively, these groups were under-represented in senior positions at the DOJ. The Vice-Chairperson therefore held that the Deputy Minister’s statements did not establish under-representation of members of visible minorities in the senior ranks at the DOJ.
[21] Secondly, Vice-Chairperson Mooney held that the statistical evidence tendered by Mr. Agnaou did not establish a prima facie case of discrimination as the statistics only showed the percentage of visible minority members at each group and level in the DOJ but not the “availability rate” for visible minorities for these positions. (The availability rate is the percentage of people from visible minorities in the available labour pool who are capable of performing the work required by the positions in issue.) Vice-Chairperson Mooney found that the evidence tendered by Mr. Agnaou failed to establish the availability rate for visible minorities in the DOJ as a whole and, more significantly, also failed to establish the availability rate for any specific group or level, including the LA-03A group and level. The Vice-Chairperson held that, without such evidence, Mr. Agnaou had failed to demonstrate any under-representation of members of visible minorities at the LA-03A group and level, which was the group and level relevant to his complaint.
[22] While these determinations were sufficient to result in the dismissal of Mr. Agnaou’s discrimination claim, Vice-Chairperson Mooney went on to consider several other issues.
[23] In this regard, he noted that even if Mr. Agnaou had been able to establish under-representation of members of visible minorities at the LA-03A group and level at the DOJ, there was no evidence to show that any such under-representation was due to the impugned human resource management experience criterion or to any discriminatory act on the part of the employer. The Vice-Chairperson held that, without such evidence, Mr. Agnaou failed to establish the requisite linkage between the experience criterion and any possible under-representation of members of visible minorities at the LA-03A group and level at the DOJ. He therefore concluded that Mr. Agnaou had failed to establish a prima facie case of discrimination.
[24] After so noting, the Vice-Chairperson then considered the evidence filed by the employer and the PSC and concluded that it established the following:
• as opposed to being under-represented at the DOJ, members of visible minorities were actually over-represented in the LA group as a whole (Vice-Chairperson Mooney was able to make this determination as the employer tendered evidence regarding the availability rate for the group as a whole);
• there was no evidence tendered by the respondents as to the availability rates for visible minorities in respect of the LA-03A group and level;
• nor was there any evidence as to the availability rates for visible minorities respect of the LA-02B group level, the “feeder” group for the LA-03A group and level;
• it was therefore not possible to determine if members of visible minorities were under-represented at the LA-03A and 02B group and levels at the DOJ;
• the DOJ had hired several members of visible minorities in recent years, actually exceeding its recruiting targets at several levels, which may have resulted in the clustering of members of visible minorities at the entry levels in the department;
• lawyers at the DOJ could obtain human resources management experience, necessary for advancing to senior managerial positions, in positions classified at the LA-02B group and level, where incumbents were charged with managing employees;
• Mr. Agnaou had chosen not to compete for several such positions at the LA-02B group and level, which would have afforded him the experience necessary for the LA-03A positions that he sought;
• there were valid grounds for the employer having decided to require six months recent public service human resource management experience as an essential qualification for the positions at issue, given that both were charged with managing several subordinates; and
• Mr. Agnaou’s claims that others had acceded to senior managerial positions in the Quebec Regional Office of the DOJ without human resources experience were without merit as were his suggestions that other members of visible minorities in that office had been demoted or transferred for discriminatory reasons.
[25] Based on the foregoing, the Vice-Chairperson held that had there been a prima facie case to answer, the employer had succeeded in establishing that Mr. Agnaou’s race and ethnic origin were not a factor in his having been screened out of the competition and that the human resources experience criterion was not a barrier to the advancement of members of visible minorities at the DOJ. The Vice-Chairperson thus dismissed Mr. Agnaou’s first ground of challenge to the appointment process, finding there to have been no discrimination in the process.
[26] The Vice-Chairperson then turned to assessment of the second ground advanced by Mr. Agnaou, namely the allegation that the staffing managers had abused their authority during the staffing process by ignoring employment equity obligations. The Vice-Chairperson noted Mr. Agnaou argued that these obligations required the employer to include membership in a visible minority as a merit criterion in the selection process, and that the employer representatives were not adequately aware of their employment equity obligations and had failed to consider these obligations as required throughout the staffing process.
[27] The Vice-Chairperson commenced his analysis of these claims by noting that under the PSEA, the PSST is not charged with general enforcement of the EEA (which role falls to the Canadian Human Rights Commission [the CHRC] under the EEA). He then noted that the PSST has jurisdiction to consider the EEA in the context of assessing whether a deputy head (or his or her delegate) has abused his or her authority in the staffing process as paragraph 77(1)(a) of the PSEA affords the PSST jurisdiction to set aside staffing actions where there has been an abuse of authority. He continued by noting that, depending on what occurred, there could be an abuse of authority by a staffing manager if he or she failed to follow the applicable PSC and Treasury Board polices or the EEA in respect of employment equity.
[28] Vice-Chairperson Mooney found there to have been no such failure in the case of the impugned staffing actions. He held that the employer representatives had adequate knowledge of their employment equity obligations, devoted sufficient analysis to these obligations during the staffing process and were not required to make membership in a visible minority a merit criterion in the process as this is not required under paragraph 30(2)(iii) of the PSEA. He also held that the staffing managers were not required to apply the former Deputy Minister of Justice’s directive to make membership in a visible minority a merit criterion in all staffing actions as the directive post-dated the commencement of the staffing action under review. The Vice-Chairperson thus concluded that Mr. Agnaou had failed to demonstrate any abuse of authority in the staffing process.
[29] Vice-Chairperson Mooney next noted that even if the employer had made membership in a visible minority a merit criterion, this would not have assisted Mr. Agnaou as he lacked the essential qualification of recent public service human resources management experience. (Under the PSEA, candidates must possess those qualifications that are set as essential to be appointed to a position. Additional qualifications or operational or organizational needs identified by the deputy head may only serve to enhance the strength of the candidacy of an individual who possesses the essential qualifications; see in this regard section 30 of the PSEA.)
[30] Vice-Chairperson Mooney finally considered and dismissed a collateral argument made by Mr. Agnaou concerning the nature of the requisite human resources management experience for the disputed positions, which the employer defined mid-way through the staffing process as meaning that an applicant must have had official accountability for human resources management as opposed to less formal experience in supervising others on an ad hoc basis. Mr. Agnaou argued that the employer had improperly added the accountability criterion after the Job Opportunity Advertisement was issued and the essential requirements were established. Vice-Chairperson Mooney dismissed this argument, noting that previous PSST case law allowed the employer to proceed as it had done in this case.
[31] He accordingly dismissed Mr. Agnaou’s complaint.
III. Standard of Review [32] Prior to analysing the various errors that Mr. Agnaou alleges Vice-Chairperson Mooney made, it is necessary to determine the standard of review to be applied to them.
[33] With one exception, the parties concur that the correctness standard applies to the assessment of the various procedural fairness breaches that Vice-Chairperson Mooney is alleged to have made. The one exception concerns Mr. Agnaou’s claim that the reasons offered are insufficient; he asserts that the insufficiency or inadequacy of reasons addressing each of the arguments he made amounts to a violation of procedural fairness and therefore must be assessed on the correctness standard, citing in this regard Canadian Assn of Broadcasters v Society of Composers, Authors and Music Publishers of Canada, 2006 FCA 337 and VIA Rail Canada Inc v National Transportation Agency (2000), [2001] 2 FC 25.
[34] The parties are correct that assessment of whether there was a breach of Mr. Agnaou’s rights to procedural fairness is a matter for the Court to determine as no deference is to be afforded to a tribunal in the review of whether its conduct respected the parties’ procedural fairness rights (see e.g. Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa]; CUPE v Ontario (Minister of Labour), 2003 SCC 29 at para 100; Sketchley v Canada (Attorney General), 2005 FCA 404 at para 53).
[35] Mr. Agnaou, however, is mistaken in his assertion that an alleged failure to provide adequate reasons gives rise to a claim of denial of procedural fairness. The decisions he relies on to support this claim have been overruled by the subsequent decision of the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses], where the Court ruled that failure to give adequate reasons, where there is a duty to give reasons, does not amount to a violation of procedural fairness but, rather, is to be considered as part of the assessment of whether the decision is reasonable. In other words, inadequate reasons may mean that a decision lacks transparency and is therefore unreasonable but does not constitute a denial of procedural fairness (see e.g. Turner v Canada (Attorney General), 2012 FCA 159 at para 40; Lebon v Canada (Minister of Public Safety & Emergency Preparedness), 2012 FCA 132 at para 17).
[36] Thus, the correctness standard of review applies to the various breaches of procedural fairness Mr. Agnaou raises with the exception of the alleged failure of Vice-Chairperson Mooney to provide adequate reasons. This alleged failure is to be examined as part of the assessment of the reasonableness of the decision.
[37] In terms of the other arguments that Mr. Agnaou raises, he submits that the correctness standard is likewise to be applied to several legal errors he alleges the Vice-Chairperson made in his interpretation of the CHRA, EEA and PSEA. The respondent disagrees, arguing that the reasonableness standard is to be applied to these matters, noting that the case law supports the conclusion that the PSST is to be afforded deference in its interpretations of the foregoing legislation, citing in this regard Canada (Attorney General) v Kane, 2012 SCC 64 [Kane]; Abi-Mansour; and Jalal. Both parties, however, concur that the reasonableness standard of review is applicable to the findings of mixed fact and law made in the decision, which here include the application of the EEA, CHRA and PSSA to the evidence before the PSST.
[38] I agree that the reasonableness standard is to be applied to the review of Vice-Chairperson Mooney’s determinations that involve findings of mixed fact and law, as indeed has been firmly settled by the jurisprudence (see e.g. Dunsmuir v New Brunswick, 2008 SCC 9 at para 53 [Dunsmuir]; Khosa at para 89; Rodger v Canada (Attorney General), 2013 FCA 222 at para 29; Payne v Bank of Montreal, 2013 FCA 33 at para 32). Likewise, the Supreme Court of Canada has held that a tribunal’s interpretation of its constituent statute – which typically falls squarely within the scope of its expertise – is also normally to be afforded deference by a reviewing court and therefore generally should be subject to review on the reasonableness standard (Dunsmuir at para 54; Alberta Teachers at para 34; Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 50; McLean v British Columbia (Securities Commission), 2013 SCC 67 at para 21; Canadian National Railway Co v Canada (Attorney General), 2014 SCC 40 at para 55). Thus, the Vice-Chairperson’s interpretation of the PSEA, and, most notably of the type of conduct that may constitute an abuse of authority sufficient to vitiate a staffing action pursuant to section 77 of the PSEA, is subject to review on the reasonableness standard, as was held in Kane v Canada (Deputy Head - Service Canada), 2011 FCA 19 at para 36, rev’d on other grounds in 2012 SCC 64; Abi-Mansour at para 54.
[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 need not decide in this case whether the correctness standard is applicable to the PSST’s interpretation of the CHRA or EEA as, in this case, Vice-Chairperson Mooney interpreted only the CHRA and the interpretation he advanced was correct and thus, by definition, also reasonable.
[41] Therefore, to recap, in terms of the applicable standard of review, the PSST is not entitled to defence in the assessment of the violations of procedural fairness alleged by Mr. Agnaou, with the exception of the alleged failure to provide adequate reasons, which does not constitute a violation of procedural fairness. The other breaches alleged – with the possible exception of the interpretation given by the Vice-Chairperson to the CHRA – are all reviewable on the reasonableness standard. Finally, it is not necessary to determine the standard applicable to the Vice-Chairperson’s interpretation of the CHRA as his interpretation of the CHRA is correct and therefore also reasonable.
IV. Were Mr. Agnaou’s Rights to Procedural Fairness Violated? [42] Having settled the standard of review to be applied to the various errors that Mr. Agnaou alleges the Vice-Chairperson made, I turn now to the assessment of the myriad of breaches of procedural fairness that Mr. Agnaou alleges occurred in this case (with the exception of the allegations regarding the inadequacy of the Vice-Chairperson’s reasons, which I address in reviewing the reasonableness of the decision).
[43] Mr. Agnaou makes several procedural fairness arguments. First, he claims that Vice-Chairperson Mooney was biased against him and asserts 21 particulars of the alleged bias. Second, he argues that Vice-Chairperson Mooney failed to ensure his rights to a “transparent procedure” were respected. Third, he claims that the failure to enjoin counsel for the employer from communicating with witnesses violated his procedural fairness rights. Fourth, Mr. Agnaou argues that his rights were violated because the Vice-Chairperson arbitrarily and erroneously excluded the evidence he sought to tender after the close of the case. Finally, Mr. Agnaou claims that the PSST failed to deliver the decision within a reasonable period of time and that this also amounts to a violation of procedural fairness. None of these claims has merit as is more fully discussed below.
A. Was there a reasonable apprehension of bias on the part of Vice-Chairperson Mooney? [44] Turning, first, to the allegation of bias, it is beyond question that administrative tribunals such as the PSST must both be and appear to be free from bias as litigants who appear before them are entitled to have their cases decided by an impartial tribunal (R v S (RD), [1997] 3 SCR 484 at para 92 [RDS]; Old St Boniface Residents Assn Inc v Winnipeg (City), [1990] 3 SCR 1170 at para 78 [Old St Boniface]; Alexander v Canada (Attorney General), 2011 FC 1278 at para 62). The right to an impartial and independent decision-maker is also a principle of fundamental justice for the purposes of section 2(e) of the Canadian Bill of Rights, SC 1960, c 44, which applies to the PSST, as a federal tribunal.
[45] Allegations of bias may take one of two forms: a litigant may allege either actual bias – that is, claim that the decision-maker had an actual predisposition against the applicant’s case – or may allege that the facts are such that there is a reasonable apprehension of bias (Brown and Evans, Judicial Review of Administrative Action in Canada, loose-leaf (Canada: Thomson Reuters Canada Ltd, 2013, 2014), ch 11 at 1 [Brown and Evans]). Where actual bias is alleged, the claimant must prove that the decision-maker pre-determined the result. These sorts of allegations are rarely made and even less frequently proven as there is rarely evidence to support them. Indeed, it has been suggested that an inquiry into the subjective state of a decision-maker’s mind is inappropriate (Brown and Evans, ch 11 at 4). Thus, most bias allegations raise a claim of apprehended bias.
[46] Where apprehended bias is alleged, the Court applies an objective test to the assessment of the claim that involves asking whether an informed person, viewing the matter realistically and practically, would think that it is more likely than not that the decision-maker, whether consciously or unconsciously, could not or did not decide fairly (Committee for Justice & Liberty v Canada (National Energy Board), [1978] 1 SCR 369 at 394-95; Old St Bonafice at para 92; RDS at para 31; Lippé c Charest, [1991] 2 SCR 114 at para 82).
[47] In claims of both actual and apprehended bias, the inquiry is highly contextual and fact-specific, and the party alleging bias bears the onus of proving the claim (Old St Bonafice at para 94). Moreover, a presumption of impartiality applies to administrative decision-makers (see e.g. Zündel v Citron, [2000] 4 FC 225 (CA) at paras 36-37; Arsenault-Cameron v Prince Edward Island, [1999] 3 SCR 851 at para 2; Beno v Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia), [1997] 2 FC 527 (CA) at para 29). Therefore, a high standard of proof applies to assertions of bias (see e.g. RDS at para 113). As such, suspicions, insinuations, conjecture, impressions or opinions will fail to establish the existence of bias (see Arthur v Canada (Attorney General), 2001 FCA 223 at para 8; Es-Sayyid v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FCA 59 at paras 39-40).
[48] Here, as noted, Mr. Agnaou makes 21 assertions that he alleges either singly or collectively should result in the determination that Vice-Chairperson Mooney’s conduct of the case gives rise to a reasonable apprehension of bias. I disagree. Whether taken individually or as a whole, these claims do not establish a reasonable apprehension of bias and, indeed, amount to little more than conjecture and thus fall well short of establishing bias. I examine each of them, in turn, below.
(1) Allegations 1-3 – Prior Employment of Vice-Chairperson Mooney [49] Mr. Agnaou first asserts that the fact that Mr. Mooney was previously employed by the DOJ and the PSC and then as a technical advisor to the government in respect of the 2003 amendments to the PSEA give rise to an apprehension of bias, especially because Mr. Mooney appeared as part of the government’s delegation before a Parliamentary Committee to answer questions about the proposed amendments. Mr. Agnaou further argues that the fact that neither Mr. Mooney nor the DOJ disclosed these facts to him strengthens the reasonable apprehension of bias.
[50] Neither of these points has any merit both because no reasonable apprehension of bias can possibly flow from Mr. Mooney’s background and because Mr. Agnaou, although aware of the issues, chose not to request Mr. Mooney to recuse himself.
[51] In terms of Vice-Chairperson Mooney’s background, the evidence reveals that he had been an adjudicator for several years at the PSC, and that prior to that he was counsel to the PSC (but employed through the DOJ, as most federal government lawyers are). Neither of these antecedents gives rise to any possible apprehension of bias. The PSC – when Mr. Mooney was associated with it – played in large part the same role as the PSST now plays, namely, that of an independent tribunal charged with reviewing public servants’ complaints in staffing matters. It goes without saying that employment in such a role or as counsel to those exercising the adjudicative function cannot possibly give rise to an apprehension of bias.
[52] As for Vice-Chairperson Mooney’s role in respect of the amendments to the PSEA, the curriculum vitae that Mr. Agnaou filed indicates that Mr. Mooney was part of the working group at the Privy Council Office when the amendments to the PSEA were developed. From the transcript of proceedings before the Parliamentary Standing Committee on Government Operations and Estimates, which Mr. Agnaou also filed, it appears that Mr. Mooney did appear in 2003 before the Committee when it was studying the amendments and that, in light of his technical expertise, Mr. Mooney was asked to answer a few questions about the proposed amendments.
[53] This, likewise, does not give rise to any reasonable apprehension of bias for several reasons. First, and most importantly, the PSEA foresees that the Vice-Chairperson of the PSST will possess precisely this sort of expertise. Subsection 88(2) of the PSEA provides that members (and thus by definition the Chairperson and Vice-Chairperson of the PSST, who are designated from among the tribunal’s members) must have “knowledge of or experience in employment matters in the public service”. Secondly, the impugned involvement occurred more than five years before Mr. Agnaou filed his complaint. Third, contrary to what Mr. Agnaou insinuated in his argument on this point, Vice-Chairperson Mooney did not express an opinion on the issues at play in Mr. Agnaou’s case whe