Sutton v. Canada ( Employment and Immigration Commission )
T-3148-92
Cullen J.
15/2/94
13 pp.
Application for judicial review of Public Service Commission Appeal Board's decision dismissing appeal against selections for appointment for positions within Canada Employment and Immigration Commission -- Applicant unsuccessful candidate in three closed competitions for analyst's positions -- Appealed proposed appointments pursuant to Public Service Employment Act, s. 21 -- Before Appeal Board, members of Selection Board excluded from hearing room until called upon to testify-Applicant submitting written allegations -- Department filing reply signed by all four members of Selection Board although only Chairperson available for cross-examination -- Appeal Board relying on written reply in dismissing appeals -- Role of Appeal Board to ensure selection process complied with Act, s. 10 (i.e. appointments made according to merit), and to consider reasonableness of Selection Board's assessment -- Tribunal master of own procedures, subject to limitations expressed in creating statute -- Act not placing restrictions on Appeal Board's procedure, except requirement person appealing and deputy head shall be given opportunity to be heard -- Form or conduct of s. 21 appeal not prescribed -- Appeal Board has measure of discretion to decide whether to allow certain evidence to be heard or whether to require cross-examination of witness -- Discretion subject to rules of natural justice: Evans v. Public Service Commission Appeal Board, [1983] 1 S.C.R. 582 -- As Department's reply contradicting some evidence offered by other authors in previous viva voce evidence, applicant should have had opportunity to cross-examine witnesses before reply relied upon as explanation of earlier testimony-Without cross-examination, no means for applicant to determine whose version changed and why -- Failure to grant exclusion order can amount to error of law, but scope of order not extending to preparation of departmental reply-Weight given to document reflecting nature of preparation -- That Board members jointly produced document could lead to inference document representing best explanation, not necessarily story as each member remembered it -- Within trier of fact's discretion to determine weight to attribute to document subject to rules of natural justice-Document admissible as part of practical procedure developed over years -- While Appeal Board not having power to compel attendance of witnesses, principle of natural justice requiring each of four members of Selection Board be made available for cross-examination-Potential for change in cross-examination existing -- Appeal Board erred in relying on document without cross-examination of each of authors -- Application allowed -- Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 10 (as am. by S.C. 1992, c. 54, s. 10), 21 (as am. idem, s. 16).