PAUL ABI-MANSOUR Appellant v. DEPUTY MINISTER, 2015 FCA 135

Date: 20150529 Docket: A-426-13 Citation: 2015 FCA 135 CORAM: DAWSON J.A. TRUDEL J.A. RENNIE J.A. BETWEEN: PAUL ABI-MANSOUR Appellant and DEPUTY MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE CANADA Respondent Heard at Ottawa, Ontario, on May 19, 2015. Judgment delivered at Ottawa, Ontario, on May 29, 2015. REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: DAWSON J.A. TRUDEL J.A. Date: 20150529 Docket: A-426-13 Citation: 2015 FCA 135 CORAM: DAWSON J.A. TRUDEL J.A. RENNIE J.A.

BETWEEN: PAUL ABI-MANSOUR Appellant and DEPUTY MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE CANADA Respondent REASONS FOR JUDGMENT RENNIE J.A. [ 1 ] This is an appeal from a decision of the Federal Court, dismissing the appellant’s judicial review application of a decision of the Public Service Staffing Tribunal (the Tribunal).

Before the Tribunal, the appellant alleged that the Department of Foreign Affairs and International Trade (DFAIT) discriminated against him on the basis of his race and/or national or ethnic origin in finding him not qualified for a job posting and abused its authority by appointing two candidates who did not meet the education requirement of the Job Opportunity Advertisement (JOA). [ 2 ] The underlying facts are straightforward. The appellant applied for an information technology position.

Both the JOA and the Statement of Merit Criteria & Conditions of Employment specified that applicants had to satisfy an education requirement of two years post-secondary education in computer science, information technology, information management or another speciality relevant to the position. The JOA instructed applicants to include a cover letter that demonstrated how they met the education and experience requirements. The JOA specified, in very clear terms, that the failure to provide the information in the cover letter would result in the rejection of the application.

[3] The appellant did not mention his education in his cover letter. In consequence, the appellant’s application, as well as 35other of the 332 applications, was screened out of the competition. [4] The appellant subsequently filed nine complaints of abuse of authority pursuant to

section 77 of the Public ServiceEmployment Act (S.C. 2003, c. 22) before the Tribunal. For reasons reported at 2012 PSST 8 , 2012 PSST 0008, the Tribunalfound that the appellant had established a prima facie case for discrimination but held that DFAIT demonstrated a complete andreasonable explanation for the appellant’s elimination from the process.

The Tribunal also rejected the abuse of authority claim advancedby the appellant, finding no evidence that would dispute the testimony of DFAIT’s witnesses regarding the assessment of the successfulcandidates’ educational credentials. [5] The Federal Court dismissed the appellant’s application for judicial review of the Tribunal’s decision. In Reasons forJudgment (2013 FC 1170) the Judge concluded there was no breach of procedural fairness in the conduct of the hearing and that theTribunal had rendered a reasonable decision in dismissing the appellant’s complaints.

The appellant now appeals to this Court from thedecision of the Federal Court. I would dismiss the appeal, substantially for the reasons given by the Judge. [6] The role of this Court on appeal from a judicial review is to determine whether the judge correctly identified and properlyapplied the standards of review to a tribunal’s decision: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36at para 47; [2013] 2 S.C.R. 559. The Judge, at paragraphs 53 and 54 of his decision, correctly identified the applicable standards ofreview.

Issues of procedural fairness are reviewable on the standard of correctness: Mission Institution v. Khela, 2014 SCC 24; [2014] 1S.C.R. 502. The remaining issues of abuse of authority and discrimination were properly reviewed on a standard of reasonableness. [7] While the appellant advances many arguments in support of his appeal, I will only address those that are strongest. Theymay be categorized as breaches of procedural fairness and errors in respect of the finding that there was no discrimination or abuse ofauthority.

Insofar as the breaches of procedural fairness are concerned, the appellant alleges that the Tribunal breached proceduralfairness by limiting his cross-examination of a DFAIT witness, by refusing to allow him access to DFAIT’s premises to accessdocuments relating to other candidates for the appointment, and in basing its decision on allegedly perjured testimony from one ofDFAIT’s witnesses. I will address this latter point in the context of the abuse of authority argument.

In his oral submissions, the appellantalso contended that the Tribunal breached procedural fairness in not maintaining a transcript of the proceedings. [8] None of these grounds disclose a reviewable error. [9] The Tribunal ruled that the appellant’s cross-examination as to the educational qualifications and credentials of Ms. Fata, theofficer who screened out the appellant, were not relevant to either of the appellant’s complaints concerning discrimination or abuse ofauthority.

In eliminating the appellant from the competition for failure to comply with the instructions with respect to educationalrequirements, Ms. Fata was performing an administrative function, to which her educational background had no demonstrable relevance.Determinations as to relevancy are within the jurisdiction and discretion of the Tribunal.

The exercise of that discretion in this case didnot breach any duty of fairness. [10] The Tribunal also appropriately rejected the appellant’s request for access to DFAIT’s premises to obtain the full applicationrecords of the nine successful candidates since the records of only two of the candidates were relevant to his allegations ofdiscrimination. Further, the Tribunal, as an element of its ability to manage and conduct its proceedings, is under no obligation tomaintain a recording and produce a transcript.

In any event, the absence of a transcript had no material bearing on any of the appellant’sarguments. [11] I turn to the issues of discrimination and abuse of authority. [12] The Tribunal’s finding that DFAIT adduced a complete explanation for the appellant’s elimination from the competition wasentirely reasonable. The appellant failed to show that he met the educational criteria according to the prescribed and clearly-communicated application requirements.

Ultimately, it was the appellant’s responsibility to comply with the JOA instructions anddemonstrate in his cover letter how he met the education and experience requirements. The appellant conceded, in this Court and theFederal Court, that the instructions in the JOA were clear and the consequences of non-compliance expressly set out.

Further, theTribunal found that the screening method was objective, transparent and not discriminatory. [13] The appellant also contends that the Tribunal erred in not finding that there was an abuse of authority arising from theappointment of one particular candidate, who the appellant claimed did not have the required educational qualifications. As the Judgenoted, the Tribunal heard evidence from those responsible for the assessment of the candidates on this precise issue and did not find anyreason to conclude that the successful candidates did not meet the educational requirements.

I see no reason to interfere with theTribunal’s assessment of this evidence. [14] Tangential to this ground, the appellant contends that the Judge erred in refusing to accept new evidence produced on judicialreview by the appellant. The purpose of this evidence was to establish that one of the successful candidates did not receive his educationfrom a recognized institution. The Judge found that this issue was specifically addressed by the Tribunal and that its considerationincluded both documentary exhibits and the testimony of officials responsible for the process.

The Judge concluded that the proposednew evidence could have been submitted at the time of the hearing before the Tribunal. Further, the evidence would not be sufficient tosupport the appellant’s allegations of perjury by the witness. A mistaken belief or disagreement between witnesses does not mean one orthe other is necessarily a perjurer. [15] Finally, the appellant contends that DFAIT was obligated to hire him in order to fulfill employment equity needs. Thisargument was properly rejected by the Tribunal.

Subsection 30(2) of the Public Service Employment Act grants a discretion to considerbroader organizational needs, but only after a candidate has been found qualified. In this case the discretion granted by subsection 30(2)was not engaged as the appellant had not demonstrated the essential qualifications of the position.

In any event, as the Judge noted, theevidence before the Tribunal was that 50% of the successful candidates were visible minorities, a point which significantly underminedthe contention that the requirement to expressly address the educational requirements in the cover letter as a component of the screeningprocess was designed to exclude minorities.

[ 16 ] To conclude on a procedural point, the style of cause of this appeal should be amended to remove “Department of Foreign Affairs” as the respondent and substitute the “Deputy Minister of Foreign Affairs and International Trade Canada” as respondent. Government departments are not legal entities and cannot be named as parties: Gravel v. Canada (Attorney General) , 2011 FC 832 , 393 F.T.R. 219. [ 17 ] Several observations are in order in respect of costs.

The appellant submitted that portions of an affidavit he attempted to file as part of the appeal book were redacted because it “fell into” the hands of a judge who was biased. Allegations of bias against a judge are very serious. They were made without any evidentiary foundation and were withdrawn at the hearing. The appellant also made unsubstantiated allegations that counsel for the respondent was acting without instructions, and that a witness had given perjured testimony.

In light of this, an award of costs at higher level is warranted. [ 18 ] Accordingly, I would dismiss the appeal, with costs, inclusive of disbursements and taxes, fixed at $2,527.65. "Donald J. Rennie" J.A. “I agree” Eleanor R. Dawson “I agree” Johanne Trudel FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD (APPEAL FROM A JUDGMENT OF THE HONOURABLE JUSTICE RICHARD BOIVIN, DATED NOVEMBER 18, 2013, FEDERAL COURT DOCKET NO.: T-868-12) DOCKET: A-426-13 STYLE OF CAUSE: PAUL ABI-MANSOUR v.

DEPUTY MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE CANADA PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: May 19, 2015 REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: DAWSON J.A. TRUDEL J.A. DATED: May 29, 2015 APPEARANCES : Paul Abi-Mansour The Appellant Christine Langill For The Respondent SOLICITORS OF RECORD : William F. Pentney Deputy Attorney General of Canada Ottawa, Ontario For The Respondent