PUBLIC SERVICE
Judicial review of decision by advisor denying applicant independent third party review (ITPR) recourse because position filled designated as temporary lateral transfer, not permanent position—Applicant, employee of respondent (CCRA) received internal e‑mail announcing position (“Notice of Interest”) for property appraiser in real property appraisal division, replying thereto—Application, applications of three other employees accepted to take part in competition process—However, applicant not obtaining desired position, believing position permanent, sought recourse offered by respondent’s staffing program—Under Canada Customs and Revenue Agency Act, s. 54 respondent could create own staffing program determining not only how employee appointments made, but also recourse available to employees —Direction on Recourse for Staffing providing employee dissatisfied with decision made in staffing process or unsuccessful in going through staffing process ability to exercise one of three available recourses, depending on nature of employment: namely individual feedback, internal review of decision or ITPR—When respondent learned not given position, applied for individual feedback in accordance with Direction on Recourse for Staffing—After feedback session, CCRA allowing employees dissatisfied with feedback to initiate ITPR application by applying in writing to CCRA Office of Dispute Management manager making decision regarding position—Office of Dispute Management must then check application to verify whether all eligibility requirements for ITPR met—If requirements met, application forwarded for independent third party review—When respondent sought ITPR, advisor refused to refer complaint for ITPR stating recourse only available for permanent positions—Court must examine process advisor followed in arriving at decision position constituting temporary lateral transfer—Fact respondent controlling own staffing program not meaning can apply whatever directives respondent likes—Advisor never initiated any proceeding, in writing or by hearing, to determine nature of position—Fact Act allowing Program to give effect to Directives creating legitimate expectation of procedural fairness—Respondent nevertheless subject to rules of natural justice, must ensure employees able to expect remedial process as established by Directives observed—Even if advisor told applicant not permanent position and therefore not entitled to ITPR, applicant given no opportunity to respond to statement —Necessarily gave rise to breach of natural justice—Parties assumed if advisor had concerns, would inform applicant and give applicant opportunity to respond—Therefore, discussion about whether independent third party could hear dispute never addressed—Applicant could not automatically resort to ITPR recource—To refer application to independent third party, advisor had to decide whether applicant’s application eligible—Although proceeding before advisor not adversarial in nature, advisor’s decision significantly affected applicant’s rights—Applicant’s fundamental belief position permanent gave rise to reasonable expectation that advisor should have addressed fairly—If advisor unable to make decision based on information available, advisor at very least had duty to allow applicant to present case regarding nature of position in order to assess situation—Clearly issue of procedural fairness in present case—Even absent such issue, advisor’s decision patently unreasonable—No opportunity for Court to review advisor’s reasoning since advisor failed to explain decision— Thus impossible for applicant or Court to understand how advisor determined position temporary—Failure to explain reasoning (for ex., by writing reasons) risky for advisor given that, even if decision may not initially appear reasonable, guideline exists for Court to follow to determine how advisor reached decision—Since no guideline to follow in case at bar Court had to rely on evidence filed by parties to assess whether decision reasonable—If evidence suggests result different from result determined by advisor, then difficult for Court to support advisor’s reasoning—Advisor must determine what redressed by ITPR—One determining factor whether position classified as temporary or permanent—To do this, advisor failed to conduct independent research, examine evidence or consult individuals affected by matter—By refusing to make distinction, advisor failed in duties, matter of jurisdiction—Must interpret very nature of position and cannot rely on statement position temporary in order to designate as such—On account of fact candidate must devote several years of career, that position existed long before “Notice of Interest” posted, Court of view position permanent—Further, analysis of staffing program directives wording, ambiguity between French, English versions could be interpreted in applicant’s favour—While English version of directives state ITPR conditional on position being “permanent appointment”, French version refers to “promotion à un poste permanent”—In such contexts, if directives ambiguous, employer should not be able to base argument on one version of wording so as to adversely affect rights conferred by directives—Based on facts presented by parties, without advantage of understanding advisor’s reasoning, advisor’s decision patently unreasonable—Also, affidavit of person with no personal knowledge of facts inadmissible before Court pursuant to Federal Courts Rules, r. 81(1)—Sociological studies incorporated into applicant’s record to support claim position permanent inadmissible primarily because never submitted to advisor, thereby Rules, r. 81(1) against hearsay would be breached—Despite fact review in question made by independent third party interpreting directives specific to department such as CCRA, nevertheless necessary to ensure procedural fairness to individuals having recourse thereto—Application allowed—Canada Customs and Revenue Agency Act, S.C. 1999, c.17, s. 54—Federal Courts Rules, SOR/98‑106, rr. 1 (as am. by SOR/2004‑283, s. 2), 81(1).
Girard V. Canada (Canada Customs and Revenue Agency) (T‑1844‑04, 2005 FC 1341, Harrington J., order dated 30/9/05, 12 pp.)