Digests

Tremblay v. Canada (Attorney General)

T-1201-01

2003 FCT 466, Kelen J.

22/4/03

26 pp.

Judicial review of decision made by Appeal Board of Public Service Commission of Canada (PSC) that Transportation Safety Board (TSB) properly accommodated applicant, suffering from multiple sclerosis, by modifying testing conditions for position--Public Service Employment Act, s. 10 requiring appointments to and from within public service be based on selection according to merit--Whether Appeal Board erred by finding TSB conducted selection process in accordance with merit principle broken down into four sub- issues--(1) Whether Appeal Board erred by finding TSB met obligation to provide reasonable accommodations to applicant --Applicant argued TSB did not provide objective evidence accommodations initially recommended by expert, and not found acceptable, would have negatively affected other candi-dates in competition--Appeal Board Chairperson characteri-zed communications between TSB and expert as "unfortunate mis-communication"--Determination of issue centred on TSB's handling of expert's initial recommendations--PSC's Generic Standards for Selection and Assessment stating equitable assessment does not necessarily require use of same assessment methods or sources of information for all candidates--For example, in some circumstances, such as sometimes occur in assessment of candidates with disabilities, equitable assessment will require modification of usual procedures--Decision to use alternative assessment method must also respect rights of other candidates to fair assessment --Question is what method of assessment needed to ensure selection based on merit--Final decision on appropriate accommodations in present case lay with TSB--Expert focussed solely on accommodating needs of applicant but TSB had to also consider effect use of alternative assessment method would have on other candidates--As such, TSB not bound to follow expert's recommendations--In order to justify decision to depart from recommendations of outside expert, government department only needs to demonstrate legitimate concerns problem would have arisen if process had moved forward--Finally, not necessary to use alternative assessment method as needs of applicant adequately addressed through modifications to testing conditions--Appeal Board made correct determination in finding TSB had fulfilled duty to accommodate--(2) Whether Appeal Board erred by finding applicant had not written test under duress (i.e. afraid if not accepting proposal would be excluded from competition)-- Unreasonable to expect TSB, after having implemented measures suggested by expert, to re-engage in search for acceptable accommodations without any information on what more needed--(3) Whether Appeal Board erred in finding incumbent upon applicant to raise concerns about distraction during exam--Candidate suffering hardship related to noise has burden of bringing hardship to attention of selection board--Applicant did not bring existence of distraction to attention of selection board until time of appeal hearing--(4) Whether Appeal Board breached rules of natural justice by excluding study conducted for National Multiple Sclerosis Society (Krupp report)-- Administrative decision-makers generally given some discretion as to choice of evidence to accept--Court not likely to interfere unless decision constitutes breach of natural justice--In light of lateness of request and fact summary already provided, Appeal Board Chairperson properly exercised discretion in excluding report--Decision did not prejudice applicant's ability to present case--Application for judicial review dismissed--Public Service Employment Act, R.S.C., 1985, c. P-33, s. 10.