Burke v. Cape Breton (Regional Municipality), 2011 NSSC 457

SUPREME COURT OF NOVA SCOTIA Citation: Burke v. Cape Breton (Regional Municipality), 2011 NSSC 457 Date: 20111212 Docket: Syd. No. 346500 Registry: Sydney Between: Warren Burke Applicant v. Cape Breton Regional Municipality and Deputy Chief Brent Denny Respondents LIBRARY HEADING Judge : The Honourable Justice Patrick J. Murray Heard: June 20, 21, 22, 2011 in Sydney, Nova Scotia Written Decision: December 12, 2011 Subject: Administrative/Employment Law

Summary: The Applicant applied for a Declaration that the Respondent ’ s hiring procedures where performed contrary to a duty of procedural fairness. The Applicant applied for a position of firefighter with the Municipality. His assessment was interrupted due to an allegation of dishonesty. Subsequently the Municipality agreed to continue with the assessment and re-engage the hiring process. Issue: Whether the Applicant was entitled to a Duty of Procedural Fairness? If not what other remedy may be available to him?

Result: The Applicant was not entitled to a duty of Procedural Fairness, as the employer was acting as any other private employer would be in the hiring context. The Respondent ’ s own policies gave rise to a duty of fairness to the Applicant, which duty had

been met by the Respondent. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: Burke v. Cape Breton (Regional Municipality), 2011 NSSC 457 Date: 20111212 Docket: Syd. No. 346500 Registry: Sydney Between: Warren Burke Applicant v. Cape Breton Regional Municipality and Deputy Chief Brent Denny Respondents Judge: The Honourable Justice Patrick J. Murray Heard: June 20, 21, 22, 2011 in Sydney, Nova Scotia Written Decision: December 12, 2011 Counsel: Mr. Blair Mitchell, for the Applicant Mr. Eric Durnford, Q.C., for the Respondents By the Court :

INTRODUCTION: [ 1 ] Warren Burke (the Applicant) seeks an Order declaring the Respondent, Cape Breton Regional Municipality ’ s 2009 - 2011 process for selecting firefighters has been conducted contrary to the principle of procedural fairness and contrary to contractual obligation of the Municipality. [ 2 ] On April 28, 2011, I rendered an interim decision (and granted an interim order) in respect of Mr. Burke ’ s application for an interlocutory injunction. He requested that I cease the hiring process of the CBRM.

My Order allowed it to continue but I did require the CBRM to allow one position to remain open, in the event Mr. Burke ’ s application was successful, once a full hearing of the merits was concluded and a decision rendered. A hearing of the merits of the application was heard on June 20, 21, and 22, 2011. This decision flows from that hearing. BACKGROUND: [ 3 ] The main issue to be determined in respect to Mr. Burke ’ s application is whether he was entitled to a duty of procedural fairness in respect of his job application to become a firefighter. Mr.

Burke ’ s application proceeded in 2011 to the final stages, he having successfully made it to a final group of six candidates for selection, according to rank. He is seeking a Declaration that the hiring process of the Respondent was contrary to procedural fairness and the obligations of CBRM to its candidates. [ 4 ] As had been explained by me in my April decision, a problem arose at the point in March of 2011 when Mr. Burke was required to complete what would be the final step in the assessment of him for a position, the polygraph examination. [ 5 ] Mr.

Burke made disclosures in the 2011 pre-polygraph booklet which differed from the answers given in the previous test in 2009. His answers in 2009 booklet differed significantly as to his previous drug use, which he in 2009 admitted to the then polygrapher, Staff Sergeant Lloyd MacCormack. In particular, in the 2009 Booklet he disclosed that he had used the drug “ cocaine ” on five occasions while in the 2011 booklet, his answer was that he had never before used cocaine. [ 6 ] There was as well, further discrepancies between the two booklets.

This caused concern to CBRM officials, including Deputy Chief Denny who concluded Mr. Burke was being untruthful. Thus he was terminated from the hiring process. Deputy Chief Denny says it was made clear to candidates in the 2010 Hiring Procedure ( Exhibit #2) that “ untruthfulness at any stage of the hiring process would result in immediate termination from the process ” . That is what happened to Mr. Burke. [ 7 ] Mr. Burke says he was rushed in completing the answers for the 2011 booklet and simply made an honest mistake, a mistake which he attempted to correct.

He says further he was treated differently in 2009 when the questions and responses were thoroughly explained to him by Staff /Sgt. Lloyd MacCormack. This gave him a better understanding, at that time, of what frequency of use meant and how ingestion of substances was to be calculated and interpreted. Mr. Burke says the polygrapher in 2011, being a different polygrapher (Constable Ross), drew a conclusion that Mr. Burke was being untruthful before the polygraph was administered. Thus Constable Ross did not administer it for ethical reasons. Thus the assessment of Mr.

Burke was not completed before he was terminated from the process. [ 8 ] He states he was treated unfairly and what he had feared had actually came about, that he could not remember all of the disclosures he had previously made and thus it appeared as though he was lying when in fact he had no motive to lie. The point is, he says, he has continued to make good life choices as suggested to him by Deputy Chief Denny following the 2009 hiring process. In 2009, although he was not hired, his application including the polygraph, was properly concluded. This was not the case in 2011.

According to Deputy Chief Denny, he was not hired in 2009 due to his disclosures in respect of his drug use.

THE APRIL 28 th, 2011 DECISION (

i) Hiring Process - leading up to Mr. Burke ’ s termination [ 9 ] As to the circumstances leading to the termination of Mr. Burke from the hiring process in 2011, the following evidentiary

summary from my earlier decision is provided as background: “[6] Mr. Burke completed all of these phases and assessments to the end but was not hired following the 2009 process. According to Mr. Burke, he "responded to all questions including questions concerning past unprescribed drug use". (See paragraph 15, Burke affidavit). [7] According to Deputy Chief Denny who supervised the hiring of firefighters for the CBRM fire service, "Mr.

Burke was not offered a firefighter position in 2009 because of his disclosure concerning illegal and non-prescribed prescription drug use". [8] Prior to the 2009 polygraph examination there was extensive discussion and explanation between Mr. Burke and the polygrapher, CBRPS S/Sergeant MacCormick. Sergeant MacCormick explained how answers should be given in respect of drug use and ingestion. On the basis of this Mr. Burke reanswered questions on the 2009 prepolygraph booklet prior to taking the polygraph examination itself.

Sergeant MacCormick later provided a report concerning that polygraph examination to Deputy Chief Denny. Subsequent meetings were also held between Mr. Denny and Mr. Burke whereby Mr. Denny explained the circumstances and according to his affidavit indicated that "people sometimes have things in their past and it does not necessarily preclude them from employment with CBRM". He indicated as well the main concern is that applicants be honest when reporting their past. [9] Although Mr. Burke was upset, he later contacted Mr. Denny for advice as to how he could apply for the position of firefighter in the future.

According to Mr. Denny's affidavit, Mr. Burke needed to be honest in filling out the pre-employment polygraph booklet and he would need to make better life choices. There are certain discrepancies as to the extent of what was discussed between Mr. Denny and Mr. Burke. For example Deputy Chief Denny denies that he told Mr. Burke that the last unlawful use of drugs was the only matter that would be considered. He also denies he told Mr. Burke that the benchmark was two years since the last drug used. In fact Mr. Denny denies telling Mr.

Burke about any benchmarks as they are "kept confidential". [ 10 ] At a new round of job hiring in 2010 Mr. Burke reapplied and was required to undergo a similar process as in 2009 including the polygraph examination. This time the polygraph examination was scheduled for March of 2011. It had to initially be rescheduled due to the unavailability of the officer, Constable Ross, the polygrapher who was to perform the test on Mr. Burke in 2011. [ 11 ] Mr. Burke filled out the 2011 pre-polygraph test. As a result of the answers to questions given on the pre-polygraph test, Constable Ross concluded that Mr.

Burke was not being truthful when he compared those answers to the answers given in his 2009 booklet , as well as the answers contained in the report of the 2009 polygrapher, Mr. MacCormick. Constable Ross in his affidavit stated in paragraph 32: "32. I compared S/Sgt. MacCormack's 2009 Report with Burke's 2011 Booklet and I noted several discrepancies with respect to the frequency and nature of Burke's stated illegal substance use. Attached hereto as Exhibit "B" is the page from Burke's 2011 Booklet regarding his substance use." Further in paragraph 36 and 37 Constable Ross stated: "36.

Burke's self-reported answers provided enough information to conclude that he was not being truthful. Given that my duty, when conducting polygraph testing for job applicants, is truth verification, I concluded that my inquiry was compete without the need of conducting a polygraph test. 37. Another consequence of the significant discrepancies in Burke's answers is that I knew him to be lying. Therefore, as the Examiner,

I could no longer administer a polygraph test in a neutral and objective manner." [ 12 ] The crux of the matter than is that Mr. Burke never did get to complete the second polygraph examination which was required in order for his assessment for 2011 to be completed. In paragraphs 65, 67 (sic) and 70 of Deputy Chief Denny's affidavit he states: "65. As a result of Cst. Ross' report and my discussion with him, I telephoned Burke on March 15, 2011 and told him that there were some concerns with his Booklet. I asked him if he could meet with me in the morning.

Burke agreed. 69. ...I also detailed each of the discrepancies and he tried to provide explanations. For example, with respect to his answer that he had never before used cocaine, he stated that he had been in a hurry when he filled out the Booklet. I told him that he should have taken more time in filling out the Booklet. 70. I explained that he had effectively removed himself from the job competition by being dishonest. I also reminded him of the advice that I had provided to him in 2009 regarding the importance of being honest." [ 13 ] One of the key parts of the evidence is that Mr.

Burke in his 2011 booklet failed to disclose that he had previously used the drug cocaine. In his 2009 booklet and in the pre-test he confirmed that he did use that drug, on five occasions. [ 14 ] The CBRM, though Deputy Chief Denny maintain that the position of a firefighter is one of trust requiring complete honesty. There are circumstances which a firefighter encounters which require absolute integrity and honesty. They believe they are justified in having Mr. Burke removed from the hiring process. [ 15 ] In the documentation provided as part of the hiring process for 2010, Exhibit D of Mr.

Denny's affidavit states: "This questionnaire is to determine the integrity and suitability of the candidate for a position of trust as a firefighter. If it is determined that the applicant has not been honest at any stage of this process, they will be eliminated from competition." (ii) Interim Findings [10] In my earlier decision, I arrived at a number of findings.

These findings are not necessarily binding upon me now as that decision stated that “ difficult questions of law ” , “ disputes in the evidence ” and “ credibility findings ” should not be decided at the interlocutory stage but rather are best left to be dealt with at trial. Nonetheless, to provide the proper context, I made the following observations and findings in respect of Mr. Burke ’ s application, as it relates to procedural fairness:

(39) In this case before me I find that the facts and circumstances suggest more than a mere expression of interest but less than a contractual obligation, even a unilateral one. See para [39].

(47) Applying this to the facts of this case, it seems logical the principles of contract law would only apply if Mr. Burke had a contract . Dunsmuir ( see Dunsmuir v New Brunswick, 2008, SCC 9 ) involved a dismissal of an employee. Mr. Burke is attempting to secure one. I am not persuaded that no duty of fairness was available to Mr. Burke because he would be a unionized employee under the contract of a collective agreement, if hired. The fairness he is seeking is in attempting to be hired and to be given a contract. With respect therefore, this argument misses the point. Mr. Burke has not been hired and therefore has no contract. See para [47]

(55) In terms of understanding the “ institutional and factual matrix ” surrounding this decision by CBRM, they have first suggested it was Mr. Burke himself who removed himself from the job competition. Second it was the decision of the CBRM Police Service through Constable Ross, who in effect decided that the second polygraph test could not be given. CBRM controlled the hiring process through Deputy Chief Denny. Ultimately they must accept it as their decision not to have Mr. Burke continue to be assessed, thereby eliminating him from the job competition. See para [55].

(59) Procedurally however, it is arguable that he was treated differently in the 2011 pre-test when compared with the 2009 pre-test. In the latter S/Sergeant MacCormick explained in detail how he interpreted the questions to be answered by Mr. Burke. Further it is at least arguable he was treated differently in the 2011 process by reason of his 2009 booklet being reviewed and compared with his 2011 answers. See para [59].

(62) Ultimately the Applicant will have to answer for the answers he gave in 2011. A breach of procedural fairness can render a decision void. A breach of procedural fairness therefore can render the decision to remove him from the job hiring process void. See para [62].

(63) Without deciding at this stage whether there was in fact or in law a breach, I am persuaded that the facts in this case suggest that it is at least arguable that CBRM owed a duty of fairness to Mr. Burke. He says he made a mistake, CBRM says he was untruthful. See para [63] [11] It is the decision to remove Mr. Burke from the hiring process which gave rise to his Application to this Court for a remedy. [12] The Applicant ’ s position now is that the respondent CBRM has acknowledged by their “ sudden change ” in position that the non-hiring of Mr.

Burke was flawed and his termination resulted from an “ improper use of discretion beyond the mandate conferred upon the respondent by statute ” . The Applicant alleges also that the non-hiring was due to arbitrariness and dictation. In effect, Mr. Burke ’ s counsel states that it was Constable Ross who dictated to Deputy Chief Denny the decision that Mr. Burke was being untruthful. The point being that neither of them was or could be considered the hiring committee.

The hiring committee now has been fundamentally changed, they say, with the termination of Union President Jody Wrathall, who gave evidence at the June 20 th hearing on behalf of Mr. Burke. NEW DEVELOPMENTS SINCE APRIL 28 TH DECISION: (

i) Constable Phillip Ross [13] In advance of the new hearing, the respondent CBRM filed affidavits of Deputy Chief Brent Denny, sworn to on June 7, 2011 and from the polygrapher Constable Phillip Ross sworn to on June 9, 2011. Constable Ross ’ affidavit confirmed that CBRM made an offer to Mr. Burke which was accepted by him to complete the polygraph examination which occurred on June 1, 2011. A

summary of that process is contained in paragraphs 20 to 27 of Constable Ross ’ affidavit as follows: 20. At the request of Cape Breton Regional Municipality, I scheduled Warren Burke (“Burke”) to receive a polygraph test on Wednesday, June 1, 2011 at 10:00 a.m. 21. In preparing to administer the polygraph test, I reviewed Burke’s 2011 Pre-Employment Polygraph Booklet (“2011 Booklet”), which I understand is attached as Exhibit “G” to the affidavit of Deputy Chief Brent Denny dated April 5, 2011. 22. I conducted the pre-employment polygraph process on Burke on June 1, 2011 from approximately 10:00 a.m. until 4:00 p.m.

23. Burke provided a number of additional disclosures during the pre-test stage of the process, which I noted. 24. After completing the pre-test stage of the process, I administered the polygraph test on Burke. 25. Burke’s polygraph charts were consistent with the disclosures made. 26. After the pre-employment polygraph process was completed, I prepared a report summarizing the disclosures made by Burke and the results of the polygraph test. Attached hereto as Exhibit “A” is my report dated June 3, 2011. 27.

I make this affidavit in response to the herein application and for no other purpose. (ii) Deputy Chief Brent Denny [14] As well in Deputy Chief Denny ’ s affidavit, he discusses the report which was received prior to the June hearing from Constable Ross in regard to Mr. Burke ’ s polygraph examination conducted on June 1, 2011. His affidavit discusses how the decision came about to offer the polygraph to Mr. Burke. [15] D/Chief Denny further advised that Mr. Burke was also offered to attend a meeting on June 17,2011 for the purpose of explaining his position fully to Mr.

Denny and CBRM ’ s union resources director, Angus Fleming. That meeting has occurred and according to Mr. Burke, he had an opportunity to explain his position and the answers given by him which gave rise to this application. [ 16 ] Paragraphs 13 - 23 of Deputy Chief Denny ’ s affidavit states as follows: 13. In late May, 2011, the CBRM decided to continue processing Burke’s application notwithstanding the herein litigation. CBRM decided to provide Mr. burke with the unconditional opportunity to essentially “pick up where he left off ” in the hiring process. (Emphasis added) 14.

Resuming the application process enabled CBRM to assess Burke according to the same terms as applied to other candidates in the 2010/2011 hiring process. 15. I am advised by CBRM’s Human Resources Director, Angus Fleming, and I believe that he contacted Forensic Polygraph Examiner Inspector (recently appointed Deputy Chief) Lloyd MacCormack and requested that a polygraph test be conducted as a one-time exception. 16. After some discussion and reflection on the matter, Deputy Chief MacCormack agreed that Cape Breton Regional Police would conduct the pre-employment polygraph test on Burke. 17.

On Friday, May 27, 2011, I contacted Burke and informed him that he was scheduled for a polygraph test with Cape Breton Regional Police on Wednesday, June 1, 2011 at 10:00 a.m. Burke indicated to me that he would appear for the test. 18. I am advised by Cst. Ross that he administered the polygraph test on Burke on Wednesday, June 1, 2011.

19. The following Tuesday, June 7, 2011, Cst. Ross provided to me his report with respect to burke’s polygraph test. 20. I am going to be out of the office from Wednesday, June 8, 2011 to Thursday, June 16, 2011. 21. Before going out of town, I contacted Burke and arranged a meeting on Friday, June 17, 2011. 22. The purpose of the meeting on June 17, 2011 will be to provide Burke with the opportunity to explain his position fully to myselfand CBRM’s Human Resources Director, Angus Fleming. 23. I make this affidavit in response to the herein application and for no other purpose. [17] I had earlier found that Mr.

Burke’s “interests” were affected in that the decision to terminate him from the hiring process couldbring “harm” to him as a young man seeking a career in his chosen field. I turn now to consider whether Mr. Burkes was entitled to aduty of procedural fairness. [18] Before doing so I must add that Mr. Burke gave no viva voce or affidavit evidence at the June 20th, 2011 hearing. He did callas a witness, Mr. Jody Wrathall, former Union President to give evidence. Mr. Burke also tendered in evidence the discovery transcriptsof himself, D/Chief Denny, S/Sgt.

MacCormick, Constable Ross, and Human Resources Director, Mr. Flemming. I had also ruled thatMr. Wrathall’s discovery evidence would not be admitted, as he had given oral evidence in Court. DUTY OF PROCEDURAL FAIRNESS [19] In Cardinal v Kent (SCC), [1985] S.C.J.

No. 78 the Supreme Court of Canada confirmed that the duty offairness in certain instances is a common law principle which may be applied to an individual as follows: “The court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authoritymaking an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of anindividual.” (Canadian Administrative Law - Régimbald at pg.10)” (emphasis added) [20] The notion or idea behind what we refer to as “particpatory” rights are grounded in a fair and open procedure having regard tothe type of decision being made and who is making it (Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 ).

Generally speaking it is “administrative decisions” that draw the attention when it comes to apply the dutyof fairness to the rights or interests affected, such that what procedures should be followed will depend on the given set of circumstances. [21] In Lakeside Colony of Hutterian Brethern v Hofer [1992] 2 S.C.R. 111, Justice McLaughlin, as she then was, stated (indissent) what a court must do in a particular set of circumstances at para 17: “As Gonthier J. points out, the content of the principles of natural justice is flexible and depends on the circumstances in which thequestion arises.

It follows that the court reviewing the decision under review must be careful to ensure that it fully appreciates theinstitutional and factual matrix in which the decision arises. The ultimate question is whether the procedures adopted were fair in all thecircumstances.”

[ 22 ] On the ultimate question of whether the procedures adopted were fair, this first presumes to some extent it is an administrative type decision being made. In Mr. Burke ’ s circumstances it involves the decision of an institutional entity, the CBRM. The Respondent though its hiring committee is charged with the responsibility of hiring employees, decisions which every municipality must make. [ 23 ] The Appellant argues ( relying on Baker ) that CBRM had a duty to Mr.

Burke arising out of administrative law having regard to its statutory authority delegated to it under the Municipal Government Act S.N.S. 1998, c. 18 , and specifically the Human Resources Services Policy. (Exhibit B to D/Chief Denny Affidavit, ( Exhibit #9) [ 24 ] In this context, human resources means employment. The court must approach with a degree of caution, the question of whether to impose procedures over and above what the municipality has prescribed by statute.

A similar approach must be taken the question (of procedural fairness) in the employment context. [ 25 ] In terms of the cases mentioned thus far, the decision in Cardinal involved prisoners and whether the Director ’ s decision, to continue segregation (following a hostage taking in the prison) contrary to a reviewing board ’ s decision, should stand. The prisoners were not informed of the Director ’ s reasons for not following the recommendations of the board nor were they afforded a hearing.

The Supreme Court of Canada allowed the appeal stating the Director was under a duty of procedural fairness confirmed by statute. (s. 40 of the Penitentiary Services Regulations) with respect to the question of “ disassociation or segregation. ” [ 26 ] The Court relied upon previous authority that procedural fairness applied to disciplinary matters and that these actions were a form of discipline.

The court noted however that the extent to which procedural requirements are imposed in the prison setting must be approached “ with caution ” . [ 27 ] In Lakeside Colony , a case relied upon also by the Applicant, the court had to decide whether to uphold the decision of the Hutterite colony to expel certain members from the colony. The court held that the expulsion was not carried out in accordance with natural justice. A key issue was whether the defendants had proper notice that their expulsion would be considered at the meeting.

Interestingly it was found by the trial judge that he was “ expelling himself ” by reason of his behaviour, not unlike what has been suggested here by the Respondent in respect of Mr. Burke (see para. 70, Denny affidavit of April 5 th , 2011 Exhibit 9 ). [ 28 ] The Respondent, CBRM, argues that the facts of Lakeside Colony cannot be compared to those in the present case as the Defendants in Lakeside Colony were forfeiting something they already had, membership in the colony. Here they say Mr. Burke had only an application when he was “ expelled ” from the hearing process.

Further says CBRM the Hutterites had a contractual relationship with each other by their voluntary membership in the colony. In my earlier decision, I found there was no contractual relationship as between Mr. Burke and CBRM. [ 29 ] In Baker , in issue was the decision of an immigration officer to deport a mother and her children by Order from Canada.

In focusing on the type of decision, the Court in Baker stated: “ A duty of procedural fairness applies to humanitarian and compassionate decisions. ” [ 30 ] And in terms of the reasons for its decision the Court stated at para 48: “ I do not believe that a reasonable well informed member of the community would conclude that (the reviewing officer) had approached this case with the impartiality appropriate to a decision made by an immigration officer. ” [ 31 ] In Baker , the Court set out five (5) factors that are relevant in determining the content of procedural fairness.

The factors listed in Baker are: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself. This list is not exhaustive.

[ 32 ] Before those factors can or should be addressed however, this Court must first determine whether the duty applies to this set of circumstances involving Mr. Burke. It is worth repeating that in Baker , L ’ Heureux , Dube, J. stated and affirmed what was said in Cardinal , at para. 20 that: “ Rights, privileges or interests of an individual is sufficient to trigger the application of the duty of fairness. ” [ 33 ] The Respondent has argued that the position being sought by the Appellant is contractual in that if hired Mr. Burke ’ s employment will be governed by a collective agreement.

As yet he has no contract and consequently no “ rights ” directly affected. He has an application and the hope of being hired have completed all of the necessary tests. His own individual hiring process has been interrupted by the failure to give him the polygraph and the resulting termination for “ dishonesty ” . [ 34 ] In Roback v University of British Columbia 207 BCSC 334 the Plaintiff claimed to have acquired a contractual right by submitting his application for a position with the University in response to a published advertisement.

The Plaintiff claimed that his response to the ad was analogous to a contractor/tenderer responding to a tender call. The Court rejected that argument stating: “ Nowhere in the advertisement does the University promise anything or make any representations relating to the hiring process.

The clear purpose of the advertisement was to invite applications. ” [ 35 ] Like Roback , the Respondent ’ s Human Resources Policy (Exhibit 11, tab 2 (b)) states, under the heading “ Recruitment and Selection ” : “ Employment is based on the Applicants qualifications and is consistent with the Municipality ’ s philosophy of merit and fairness . ” (emphasis added) [ 36 ] There are some material differences between Roback and the present case. One is that here there were specific requirements which the candidate had to meet. Secondly the C.B.

Regional Fire Service Hiring Procedure 2010 states at paragraph 4: “ Final Review: The Selection Panel reviews entire application file to determine which applicants are to receive a conditional job offer. A rank will be applied to each candidate and offers made in order of the ranking. ” (Emphasis added) [ 37 ] Unlike Roback , the statement that “ offers will be made ” comes closer to being a promise to hire. Mr. Burke ’ s ranking was disclosed in evidence and it was high. His ranking was second (2nd) overall. There were many specific requirements the candidate had to meet and Mr.

Burke had met them well up to the point of his polygraph examination. (See Exhibit 2, Hiring Procedure 2010) [ 38 ] While this language suggests a binding obligation, according to rank the final decision rests with the Selection Panel to determine which of the applicants would receive a conditional job offer. Therefore while it is more of a committment than in Roback , a contract is a “ meeting of the minds ” .

Until the panel makes the selection and it is accepted by the candidate, there is no contract, and therefore no contractual right. [ 39 ] I conclude and affirm therefore my earlier finding that there was no contractual right. I must now consider whether there exists a “ privilege ” , or “ interest ” to be protected by a duty of procedural fairness. The facts do not suggest there was a privilege owed to Mr. Burke. This therefore leaves the question of whether Mr.

Burke had an “ interest ” as an individual, which would give rise to such a duty. [ 40 ] In Baker , a consideration for the court was the potential for harm that would come to not only the mother but her children with deportation. [ 41 ] In Cardinal the issue was the form of discipline to which the prisoners were subjected. In Lakeside Colony it was the members expulsion from the Hutterite colony. Depending on each set of facts, it is possible these interests may stem from some form of right as well, whether by statute, common law or simply by being decisions that involved humanitarian and compassionate issues.

[ 42 ] In Canadian Administrative Law , and “ interest ” of an individual is discussed at p. 238: “ Finally, the term “ interest ” is generic and includes claims that cannot be included in the terms right or privilege. The term “ interest ’ is looser that that of “ right ” and has been used as the basis for some type of hearing where the individual would not be regarded as having any substantial entitlement or specific tangible right.( G. Regimbald, 1 st Ed., Lexis Nexis 2008) (P.P. Craig, Admin.

Law 3 rd Ed.) ” [ 43 ] The author continues on to say: “ In short the duty to act fairly may apply to any administrative decision that could significantly influence an ultimate decision or expose the individual to some other harm. ” (Emphasis added) [ 44 ] While the Respondent takes a different view of his evidence, Mr. Burke feared harm would come to him in connection with the second polygraph examination due to his inability to remember precise answers. In paragraph 20 of Mr. Burke ’ s affidavit (Exhibit #1), he states he informed Mr.

Denny as follows: “ I told the Deputy Chief that I was worried because there was no way I could remember precisely all the questions in the previous questionnaire. He told me not to worry about what you said in your first booklet just be honest with all your answers and answer to the best of your memory. We don ’ t expect you to remember exact numbers as long as you tell the truth, you will be fine. ” [ 45 ] I am satisfied Mr. Burke had an interest in the proceedings, not only because of his application, but also because of how far he had advanced in the hiring process.

What would have happened had he not been terminated and given the polygraph test at the scheduled time in March, 2011, with good charts? He had a sufficient interest in the process that could have been adversely affected by the decision, arguably was affected, as he was removed from it. [ 46 ] Clearly the decisions discussed thus far were administrative in nature, with the exception of Roback which was an employment hiring situation.

Arguably the duty of fairness applies only to administrative type decisions. [ 47 ] In Roback, decided in 2008, Justice Koenigsberg discussed what he considered to be a freestanding duty of fairness: “ There is no question that to impose a freestanding duty of fairness in an employment hiring situation like this one would be to create a new or novel cause of action . ” (Emphasis added) [ 48 ] The Respondent argues there is no freestanding duty of fairness in an employment hiring situation. Further it says the cases put forward by the Applicant demonstrate that point, as none are employment cases.

Instead these are pure administration law cases, where the duty of fairness, in varying degrees, applies. In short the Respondent ’ s position is consistent Roback in stating that duty of procedural fairness in an employment hiring situation is “ novel ” . [ 49 ] The Respondent relies on the well known case of Dunsmuir v New Brunswick , 2008 SCC 9 in support of its position that there is no public law duty of fairness available to Mr. Burke in his situation. Several paragraphs from the Respondent ’ s Brief illustrate their position. At paragraphs 46, 47 and 48 the Respondents state: “ 46.

The Respondents still maintain that it is proper to rely on Dunsmuir to find that a public duty of fairness should not be applied to hiring situations. 47. However the majority ’ s comments in Dunsmuir appeared to contemplate the circumstances leading up to employment as well as employment itself. 48. Therefore where a public body “ is acting as any other private actor would be in hiring its employees ” , then it should be treated by the courts the same as any private actor. ” [ 50 ] In reference to para. 48 above, there is contained in Dunsmuir however a statement that suggests that the hiring situation is not

“novel”, in determining procedural fairness, or at least not much different from dismissal cases, where the employee had been hired. Much depends on how and in what capacity the Crown is acting.

At paragraph 103 the Supreme Court of Canada stated: “If the Crown is acting as any other private actor would in hiring its employees, then it follows that the dismissal of the employeesshould be viewed the same way.” ( emphasis added) [51] The Court in Dunsmuir made it clear that the starting point “in any analysis” should be to determine the nature of theemployment relationship with the public authority, noting that most public employment situations involve a contract. The employee, Mr.Dunsmuir, a lawyer, started out as a probationary employee and after several reviews his employment was made permanent.

He was acontractual employee and in addition held a public office. Under statute he could only be dismissed under ordinary rules of contract. Hewas able to resort to contractual remedies in connection with his dismissal. Mr. Dunsmuir’s dismissal was for pay in lieu of notice andthe Court found that imposing a duty of fairness with reinstatement on the employer over and above its contractual obligations, was inerror. [52] The Applicant argues that Baker, not Dunsmuir, is the case that applies to Mr. Burke. His counsel Mr.

Mitchell says that“interests” of the individual affected has become the engaging factor in administrative law in Canada.

He argues further that Dunsmuiressentially reorganized how public employees are to be treated with the critical statement of the Court in paragraph 13: “A public authority which dismisses an employee pursuant to a contract of employment should not be subject to any additional publiclaw duty of fairness.” [53] In other words the Applicant argues that Dunsmuir simply means, there is no “piling on”, meaning that a public law dutycannot be added “on top of” or as an alternative to contractual remedies.

The previous leading case of Knight v Indian Head SchoolDivision No. 19 (SCC), [1990] 1 SCR 653, for example, was effectively overturned in Dunsmuir for ignoring theemployment aspect but stands firm on procedural fairness, according to the Applicant. Once again the factors set out in Baker applied tothe general duty of fairness in administrative law, which was preserved, not done away with in Dunsmuir, the Applicant submits. [54] Dunsmuir contemplated situations where the public law duty of fairness would still apply.

One, is where the employee is notprotected by a contract of employment or where the contract is silent or the contract provides for

summary dismissal. The rationale forthis is found in the following statement at paragraph 115: “Because an employee in this situation is truly subject to the will of the Crown, procedural fairness is required to ensure that publicpower is not exercised capriciously.” [55] That Mr.

Burke was subject to the will of the Crown (municipal) here is evident by the fact that in March of 2011 he could not be offered the polygraph test but in June of 2011 he could be as a “one time exception”. ( June 7th affidavit of D/Chief Denny, Exhibit #11,Tab.7) [56] Another situation in which Dunsmuir indicates a duty of fairness is owed when it flows by implication from a statutegoverning a relationship. There is a statute which governs the actions of the Respondent employer in regard to its employees and its fireservice.

Essentially this statute, the MGA, enables the Municipality of the CBRM to “appoint, suspend, or remove all employees”through it’s CAO (s. 32(2), and “to maintain and provide fire and emergency services” (s. 293 ). [57] Perhaps more to the point is s. 296(1) which empowers council to “make policies respecting full time, volunteer, and compositefire departments in the Municipality” and to make personnel policies with respect to its employees. [58] In paragraph 106 of Dunsmuir the Court stated, rather matter of factly that: “A public authority must abide by any statutory restrictions on the exercise of it’s discretion as an employer, regardless of the terms of anemployment contract, and failure to do so may give rise to a public law remedy.

A public authority cannot contract out of its statutoryduties.”

[ 59 ] The Respondent derives its policies from statutory authority and in that sense they are bound by the policies which they created by statute, not so much as restrictions but as duties. It has a duty therefore to honour its policy on recruitment and selection which as stated contains a reference to the Municipality ’ s philosophy of “ merit and fairness ” . (Emphasis added) [ 60 ] Apart from that wording, this case does not hold a strong “ statutory flavour ” .

Perhaps the rationale in Dunsmuir could or should be extended to protect job applicants not yet hired because they do not have the protection of the contract. It is not quite akin to the contract being silent however, because the holder of the silent contract is still an employee, unlike Mr. Burke. [ 61 ] I am not persuaded the CBRM as a public employer owed a freestanding duty of fairness to Mr. Burke in these circumstances or that the factors in Baker apply to him. The circumstances here are essentially in the nature of employment hiring, not administrative decision making in the true sense. While Mr.

Burke has an interest to be protected, it is not as an employee, only one seeking to be hired. There is no employment relationship, only the hope or prospect of one. [ 62 ] I have been provided with no authority which supports the duty of procedural fairness in an employment hiring context. [ 63 ] I do think whether the Respondent Municipality had a duty to treat him in accordance with their philosophy for fairness as set out in their policy is a legitimate issue. This however does not create a freestanding public law duty of procedural fairness.

It originates indirectly from the statutory obligation created by their policy. The general duty of fairness imposed by Cardinal to protect the rights, privileges and interests of an individual applies to administrative decisions, of which this is not one. This is an employment decision which must be made by the municipality, acting in its capacity as an employer, and “ no differently than any other employer would in hiring its employees ” subject to its policies set for that purpose. [ 64 ] Consequently I cannot accept that Mr.

Burke was owed a general duty of fairness, and therefore an ensuing remedy to him in this regard is not available. I turn now to consider whether the Respondent had an obligation under its policy to the Applicant based on its philosophy of fairness.

DUTY TO ACT FAIRLY UNDER THE POLICY [ 65 ] Apart from a freestanding duty of fairness the Applicant argues that CBRM must apply its rules objectively, predictably and in an impartial manner. (Clause 1 of Applicant ’ s Application.) [ 66 ] It may be said that a finding that no duty of procedural fairness exists is inconsistent with a finding that the Respondent Municipality has a duty to act fairly. How can there be a duty to act fairly without there being a duty of procedural fairness?

Here I address not a freestanding duty but whether one arises under the Respondent ’ s own policies. [ 67 ] Relying on the competing cases presented to me, Baker for the Applicant and McInnes [1978] 2 All ER 211 (Ch.D.) for the Respondent I offer the following comparison in respect of what a duty to act fairly means. [ 68 ] The statement in Baker most apt to the present case is that upon which the case is premised. That is, that the duty of fairness is applicable to cases involving humanitarian and compassionate issues. With a career on the line, compassion for the alleged mistake made by Mr.

Burke may be said to be a consideration here. In Baker however emphasis was placed first on the nature of the decision and the process followed in making it. [ 69 ] In Baker the Court concluded that the reviewing officer had not approached the case with the “ impartiality ” appropriate to a decision made by an immigration officer. In the hiring context an employer is not, nor are they expected to be an impartial decision maker, in my view. They are, I would suggest a “ partial ” decision maker. Partial to the interests, their own, which they naturally must protect.

Indeed one could say that CBRM has an obligation to protect it ’ s citizens and in order to carry out that obligation, it must hire firefighters who meet the qualifications set out in the policy. It is clear from that policy and as has been stated through the evidence, that honesty and integrity are two of the key ingredients in determining whether a prospective job applicant, is a good “ fit ” for the employer (evidence of Mr. Wrathall on cross exam). This would be the case even if the prospective firefighter had achieved a high ranking

throughout the process. [ 70 ] Once again the duty of fairness is flexible and depends upon the appreciation of the statute and the rights affected. In the context of hiring by a municipality for this trusted position, it may be said that the rights of the citizens are affected albeit indirectly. Consequently considerable deference should be accorded to the process adopted by the Respondent to arrive at its decision.

In the present case the municipality has adopted a philosophy based on “ merit and fairness ” as well as “ equal treatment ” . [ 71 ] As stated previously the ultimate question is whether the procedures adopted were “ fair in all of the circumstances ” . It must be borne in mind that “ what is unfair in one context may be fair in another ” . ( Professors Janes and deVillas at para. 176 of Lakeside Colony ) [ 72 ] What is fair in the context of an application for a position that affects one ’ s ability to earn a livelihood, was discussed in McInnes .

In McInnes the Plaintiff ’ s application for a boxing manger ’ s license was turned down. His claim was dismissed as it had not been shown that the Board acted unfairly. [ 73 ] The Court in McInnes referred to three (3) categories or types of decision. In the so-called “ forfeiture cases ” there is the threat to take something away which has already held, a right or a position or a license, and the person is expelled.

A second category is what is referred to as the “ application cases ” where the right or position applied for is refused. [ 74 ] In the former cases there is a higher degree of fairness and natural justice than with the latter where “ general suitability ” is the concern, bringing with it less in the way of notice and a right to be heard. [ 75 ] A third category discussed in McInnes was the “ expectation cases ” . In this intermediate category, there is some legitimate expectation, based on what has already happened, that the application will be granted.

Otherwise it is akin to an Application. [ 76 ] In the present case, the evidence is that Mr. Burke had been fully engaged in the hiring process leading up to the polygraph exam in 2011. He had been encouraged to continue by Deputy Chief Denny after the 2009 round of hirings, despite disclosure of drug use.

Depending on the ranking he was given, he could be said to have had a legitimate expectation of being hired, especially given the wording of the HR policy, “ offers will be made ” , according to rank. [ 77 ] McInnes itself was not a legitimate expectation case, as the Plaintiff had on numerous previous occasions, been denied a licence. According to the notable Justice, Megary, V-C, “ he had only to hope (which may be confident or faint or anything in between) which any applicant for anything may always have ” . In present case Mr.

Burke was confident and believed he would be hired if he passed the polygraph (paragraph 17 of Burke affidavit, Exh.#1). For him the question is, what has happened to make him no longer a suitable candidate for employment?

He was previously told to continue to make good life choices, and he had no further drug use, thus surpassing the benchmarks established, this according to his evidence. [ 78 ] In McInnes, the Court had to answer the question, “ What then does the requirement to act fairly mean in this type of case? ” In the end the Court in McInnes concluded that the duty to act fairly means “ a duty to reach an honest conclusion without bias and not in pursuance of any capricious policy. ” [ 79 ] In my respectful view the McInnes case aligns itself with the present case more so than does Baker .

It is true Baker is similar in that there was a public interest aspect (as with the hiring by a public employer), but the main interest is that of Mr. Burke as a prospective employee . I am not convinced that any expectation he had was legitimate once he answered the questions differently as to his past drug use. Mistake or no mistake, he himself admits to his credit that the Respondent Municipality had reason to be concerned. (Discovery of W. Burke at pg. 245. See also para. 91 herein )

[80] In McInnes, like the present case, the positions applied for involved a career and the ability to earn a livelihood. WhileMcInnes did not have an allegation of dishonesty the applicant's past was a relevant consideration. [81] In McInnes, the Court referred to Breen v. The Amalgamated Union 1971 One All ER 1148, where the allegation had beenone of dishonesty. The Court's conclusion seemed to be that if the committee were going to take that allegation into account, they shouldhave allowed the Plaintiff to address the matter before it was decided.

However because it was not a factor there was no unfairness inthe conduct of the proceeding. Coming to the facts of this case, had the municipality not allowed Mr. Burke to address the allegation asthey did in June of 2011 his case for unfairness would be much stronger, based on the rationale in Breen. [82] It is useful to consider what fairness Mr. Burke himself expected in these circumstances. Throughout he has maintained hewished two things of this process in terms of procedural fairness. First, an opportunity to complete the polygraph examination.

Secondan opportunity to meet with CBRM officials to explain his answers. He has now had both according to the facts in evidence in thismatter, described by Mr. Burke’s solicitor, Mr. Mitchell, as a “sudden change in position”. In short CBRM has agreed to re-engage thehiring process in respect of Mr. Burke. (W. Burke’s Discovery at pp. 70 -78) [83] The Court in McInnes stated that the Board were the best judges of desirability in granting the license and absent impropriety,the Court should not intervene.

Any impropriety should also in my view be judged by considering what the Applicant desired here interms of fairness. [84] Ultimately the Court in McInnes, as to what Courts must do or be slow to do, held: “I think the Courts must be slow to allow any implied obligation to be fair to be used as a means of bringing before the Courts for reviewhonest decisions of bodies exercising jurisdiction over sporting and other activities which those bodies are far better fitted to judge thanthe Courts.” [85] I think too, described in Baker as factor number five, that deference due to the decision maker as a public body in hiring mustbe acknowledged.

The same goes for factor number one, which suggests where the type of decision is that of an employer deciding whoto hire rather than an administrative body deciding upon another type of entitlement. Employment is not an entitlement as such. Otherfactors in Baker favour Mr. Burke, such as there being no appeal and the obvious importance of the decision to him. With respecthowever this analysis does not fit well into the hiring, pre-employment context. [86] This being an employment hiring decision, I have found that Mr.

Burke was owed no duty of procedural fairness, despite himhaving an interest that was clearly affected by the decision. Baker v Canada (Minister of Citizenship and Immigration), not being anemployment law case, but rather one that clearly involved an administrative decision maker, still stands, but is not appropriate here in myrespectful view. [87] I do find that CBRM did owe a duty to be fair to Mr. Burke. This is not something the law should have imposed, but rather oneunilaterally imposed upon them by their own policy.

I do find also that such a duty has been met by CBRM, in that they have now takensteps to complete Mr. Burke’s assessment (the 2011 polygraph) and granted his request for a hearing. I would suggest further that evenif a freestanding duty of procedural fairness had been imposed upon them, their actions may well be said to have met such a duty. [88] Before concluding my decision, I turn now to consider the remaining arguments of the Applicant as contained in his brief. IMPROPER EXERCISE OF DISCRETION [89] The Applicant argues that CBRM used irrelevant considerations in exercising its discretion to terminate Mr.

Burke from theprocess. Relying on Baker and Suresh v Canada (Minister of Citizenship and Immigration) (FCA), [2000] 2F.C. 592, and Koenig and the Queen in Right of Ontario (ON SC), [1994] O.J. 2948 Divisional Court, theAppellant states, any discretion must consider the policy and objects of the statute , and “manoeuvre” only within the limits of areasonable

interpretation. Under the applicable statute (the MGA), the Respondent here must provide a fire service, and hire itsemployees, with the ability to set policies. Beyond that there are no further constraints except for the philosophy to which I have

referred. This being a hiring decision, the discretion afforded to the Respondent in its capacity as employer, is broad. [ 90 ] On the one hand the Applicant states that the decision here is “ not discretionary ” as the policy states clearly that “ offers will be made ” according to rank. On the other hand the Applicant argues that the decision was made based on irrelevant considerations, and was therefore was an improper use of discretion. [ 91 ] First in my view a reasonable

interpretation of the policy is that offers would be made to those candidates found suitable for employment by the selection panel based on a review of the “ entire application ” . Secondly and without any finding as to whether Mr. Burke was honest or dishonest, it can hardly be said that honesty and integrity are not valid considerations. To his credit Mr. Burke acknowledged the importance of these criteria, even if he disagreed with how they were applied to him. There are answers given by Mr. Burke to questions in his discovery which reflect a high degree of credibility on his part.

At question 245, Page 42, he was asked whether his answers in the booklet could be seen as suspicious? To that he replied, “ I agree one hundred percent, it could be seen that way. ” [ 92 ] Another is when he was asked at Question 537 whether Mr. Denny made him a firm promise that all he had to do was have a successful polygraph and he would certainly be offered a position? To this Mr. Burke replied “ No, he never said certainly ” . He was asked to clarify at Question 538 by Mr. Durnford: “ Q. Okay, he said you ’ d be considered, then possibly get an offer? A.

He said...yes, you would probably receive a job offer. ” [ 93 ] In my respectful view, CBRM as an employer had a considerable amount of discretion available to them and this was not restricted by the statute per se, but by the policy created under the authority granted by the statute. I find therefore, that there was not an improper use of discretion by the Respondent CBRM as the considerations used by them were relevant in making their earlier determination to terminate Mr. Burke from the process. These considerations were made explained to Mr.

Burke both verbally and in writing before the implementation of the test. (see Hiring Procedure 2010 and also Denny Discovery at Ques. 227, 228, 318) The 2011 pre-polygraph booklet states clearly that applicants must be truthful in their answers (Exhibit 8, Constable Ross ’ affidavit of March 25, 2011.) ARBITRARINESS: [ 94 ] The Applicant argues that Deputy Chief Denny made an arbitrary decision in terminating Mr. Burke from being a candidate for the CBRM fire service. Mr. Wrathall gave evidence that the decision was not made by the hiring committee, nor were they consulted.

This is one of the troubling aspects of the evidence. [ 95 ] In his affidavit Deputy Chief Denny affirmed it was he, upon receiving the report from the polygrapher, Constable Phillip Ross, who informed Mr. Burke of the reasons he was being removed from the job competition. In fact Mr. Denny stated Mr. Burke had effectively removed himself. [ 96 ] It is equally troubling that Mr. Burke stated he was in a hurry filling out the booklet even though he was earlier concerned he would not be able to remember the previous answers.

This appears contradictory as was the evidence he provided in Court as to the amount of time he had to fill out the booklet. In Court Mr. Burke stated he had much less time that he actually had (Discovery of W. Burke at questions 147 -153). [ 97 ] It is obvious that his failure to disclose that he had ever before used the drug “ cocaine ” was a pivotal point in the decision, among other answers he gave with respect to drug use. In fairness it should be noted that his charts following the June, 2011 polygraph were good, meaning his answers were consistent with his disclosures.

Disclosures themselves may still present a problem to the hiring committee. It must also be remembered that the polygraph is but one criteria used in the hiring process along with other elements. [ 98 ] The Applicant cited case law which defined arbitrariness as the “ failure to direct one ’ s mind to the merits or to conduct an

appropriate investigation ” . ( Rankin v Local 721 Ironworkers of America

(1993) OLRB Rep. July 644 ) [ 99 ] The evidence is that Deputy Chief Denny sought out an alternative polygrapher when Constable Ross first stepped aside. He also met with Mr. Burke, according to Denny ’ s affidavit, to explain why the decision was being made. He (Denny) had also previously discharged candidates from the process before the selection committee became involved in scoring the candidates (Mr. Wrathall in cross examination). While Mr.

Burke was eliminated late in the process, the rigidity and importance of the self disclosure process is explained early in the written policy, at Phase One. [ 100 ] For reasons similar to those I have expressed in relation to the exercise of discretion, I find that Deputy Chief Denny was clearly the person responsible for overseeing the process of hiring fire fighters for the CBRM. Mr. Burke saw Mr. Flemming as having the ultimate say and went to him seeking redress. It was Mr. Flemming who ultimately arranged for Mr. Burke to be retested by Constable Ross in June of 2011. The evidence of Mr.

Wrathall in cross examination was that no one on the committee complained or took issue with the previous decisions of Mr. Denny. [ 101 ] In the absence of bad faith, I find that the actions of CBRM though Deputy Chief Denny were performed with the criteria in mind that the municipality felt was necessary to achieve the best results. The issue for the Court is not necessarily whether CBRM was right or wrong in its assessment but whether they considered the relevant factors. Their aim was to achieve candidates with honesty and integrity. Mr. Denny told Mr. Burke to answer the questions honestly. Mr.

Burke says ultimately this advice led to his downfall due to the mistakes he made in not remembering the previous answers. Mr. Burke also says that the different explanations and approaches by the two polygraphers also affected his ability to be consistent in his answers in 2011 compared with 2009. [ 102 ] In its brief the Applicant argues that under the sudden change in position, the Human Resources Officer Mr. Fleming, Fire Chief MacKinnon and Chief Deputy Denny would “ call the shots ” with respect to whether Mr.

Burke would be hired. (Page 7 of brief and Denny discovery, Q. 293) The Applicant argues this is contrary to what the process calls for where the interview recommendation would be made by the hiring committee to the Chief. It states further that there have been no recommendations made by the hiring committee which have not been followed and accepted by the Chief in the past. The hiring procedure 2010 states under Phase Four that "hiring will be in accordance with the CBRM Recruitment and Selection Policy." That policy in turn states in

Section 12 that offers will be prepared for the successful candidate by the Human Resources Officer. The hiring procedure makes it clear that candidates "will be dropped from the process" if unsuccessful at any step. Further the policy is specific in stating that candidates will be "eliminated from the competition" for dishonesty. [ 103 ] In Withler v. Canada (Attorney General )

(2011) S.C.C. 12 the Supreme Court ruled that equal treatment is not always identical treatment. At page eight of his brief the Applicant states: “ Now the matter is to be before Deputy Chief Denny, Chief MacKinnon, and not before Deputy Chief Bully or the union president, (who are under the process for all other candidates hired or put through the hiring process in the 2011 round of hiring) and Mr. Fleming. ” [ 104 ] In my view any departure, deviation, or uniqueness in the process now, must in part be laid at the door of Mr. Burke.

The Respondent says were he more honest and forthright the matter would not be before the Court. [ 105 ] I agree his answers have contributed in large measure to this matter being in court. Withler says the focus must be on substance rather than form. [ 106 ] The substance of this matter is that as Constable Ross put it Mr. Burke has been given "every opportunity to clarify what was in the booklet". Further Deputy Chief Denny stated in paragraph 13 of his affidavit of June 7th, that CBRM has decided to provide Mr. Burke with "the unconditional opportunity" to continue in the hiring process.

In paragraph 14 of Deputy Chief Denny's affidavit he states "resuming the application process enables CBRM to assess Mr. Burke according to the same terms as applied to other candidates in the 2010/2011 hiring process ” . Neither Constable Ross nor Deputy Chief Denny were cross examined in court on their most recent affidavits. [ 107 ] Mr. Wrathall gave evidence that the interview committee (including Mr. Wrathall) completed its interviewing, scoring and ranking of the candidates. This was in accordance with

Section 7.4 and 7.7 of the Human Resources Policy.

[108] Ultimately the recommendation will be made to the Chief and then to the CAO as before. In my view the substance of the matterfavours a finding that Mr. Burke has on balance been treated fairly. [109] In Gismondi v. Toronto (City) (2003), (ON CA), 226 D.L.R. (4th) 334 (ONCA) the Court found flaws inthe municipality's process for selecting its new managers, but found their actions were well intentioned and without malice.

It foundthere was no duty of fairness owed so as to warrant reinstatement. [110] There is no question that the differences in answers, being stark, started a series of events which were difficult to control andnegatively affected Mr. Burke. I find however that these decisions lack the arbitrariness alleged by the Applicants and I reject thisground of relief claimed by the Applicant. DICTATION: [111] Similarly I see no merit in the Applicant’s claim that the Respondent was dictated to by Constable Ross’ refusal to carry out thepolygraph exam.

The affidavit of Deputy Chief Denny makes it clear that CBRM received the report from Constable Ross and considered it before advising Mr. Burke of it’s decision, at a separate meeting (Paragraphs 65 and 69 of Denny affidavit of April 7th,2011, Exhibit # 7). [112] In my earlier decision , I found that CBRM controlled the hiring process and it was the municipality’s decision not to have Mr.Burke continue to be assessed.

I have heard nothing in the evidence at the June hearing to convince me that such a finding should notstand as of that time. (See paragraph 55 of the April Decision) I am not persuaded that Constable Ross made the decision to eliminateMr. Burke, even though his assessment of him for the polygraph component formed a critical component of that decision. This of coursehas now since changed with the Respondent agreeing to allow Mr. Burke to “pick up where he left off ”.

REMEDIES CLAIMED BY THE APPLICANT: [113] In his submission the Applicant’s counsel reviewed the relief claimed in his Notice of Application in Court filed on April 6,2011. Mr. Mitchell advised the Court that the principle remedy being sought was a Declaration that the hiring process for selectingfirefighters was contrary to the principles of procedural fairness and contrary to the obligations of the Municipality to its candidates asstated in item # 1 of the Application. [114] The Applicant further advised he was not seeking damages as claimed in item # 5, and that with respect to item # 4 ( an Orderthat Mr.

Burke be hired) he had anticipated a further decision of the hiring committee “by now”, meaning before the Court proceeding. He indicated to this Court that, that decision not having occurred, there was no authority for the proposition that the Court order that Mr.Burke be hired, indicating that the relief in item # 4 was an attempt to set out a practical resolution. To this end he had no furthersubmissions to make on this point. [115] The Court questioned Mr.

Mitchell on his references that this was a “judicial review” application noting that it was not framed assuch and only touched upon by him in passing in his submissions. On this point Mr. Mitchell referred to item # 2 in his relief wherein heclaimed an Order quashing the decision to preclude the Applicant from the hiring process, indicating this is where “the judicial reviewbent comes from”. [116] From the Court’s perspective no argument or authority was provided whatsoever in regard to the standard of review whichshould be applied.

It is acknowledged that many of the cases presented and discussed are those involving Judicial Review ofadministrative law decisions. While there is no doubt the decision of the Respondent was being reviewed in terms of procedural

fairness, the focus of the evidence as presented lacked any reference to the standard of review as did the pleadings in reference to it being a Judicial Review Application under Rule 7 of the Civil Procedure Rules of Nova Scotia . The Respondent took the view that this was not a Judicial Review application but a “ quasi judicial review ” case, with the germane aspect being that of an employer ’ s right to hire, in the employment law context. [ 117 ] In consequence the principle issue addressed by the Court was with respect to the Applicants claim for a Declaration based on the lack of procedural fairness.

Virtually all of the arguments of the Applicants were channelled in that direction. It is the principle remedy being sought, as confirmed by the Applicant in item # 1 of his Application. [ 118 ] I agree with the Respondent and for that matter the Applicant, that the Court should not become involved in the hiring process as far as directing an employer to hire an employee. I said in my earlier decision that deference should be shown in terms of their right to hire qualified candidates. They are in the best position to decide these issues. ( See Amdiss v.

University of Ottawa 2010 ONSC 4738 ). [ 119 ] From the representations of the Applicant through his counsel, I understand Mr. Denny was named only because he was a decision maker on behalf of his employer and not because liability was being sought against him in his personal capacity. Given this, and based on the evidence I have heard , there is and would be no finding against D/Chief Denny in any personal capacity.

CONCLUSION: [ 120 ] On the basis of the evidence and submissions heard, I am not satisfied that the Respondent CBRM owed a free standing duty of procedural fairness to the Applicant, Warren Burke, in respect of his application to become a firefighter with the CBRM Fire Service. [ 121 ] I agree with the authorities which state there is no authority or precedent for such a duty being imposed in an employment hiring situation. Mr.

Burke had a substantial interest in the proceedings, but the decision of the Respondent was one in which they were acting in the capacity of employer, not as an administrative decision maker. [ 122 ] I do find, that based on the wording of their own policy, that the Respondent had a duty to act fairly and base their decision on merit using the criteria they set out for such a hiring decision. I find that the duty has been met by the Respondent in that they made their decision using the criteria which they (CBRM) as an employer believed was relevant.

An employer must have broad discretion to make appropriate decisions in the hiring context. [ 123 ] This does not mean that Mr. Burke was being dishonest or lacked integrity, in the view of the Court. It means it is not the Court ’ s role to make that decision or assume the responsibility for hiring employees of any employer. There is no authority for that proposition. [ 124 ] It is now up to CBRM to make it ’ s decision whether to hire Mr. Burke. It has promised to do so in good faith and without caprice. I repeat it is not the Court ’ s place to assume that role. [ 125 ] Mr.

Burke has proven himself qualified for this position in many ways. He finished second in ranking among 67 or so candidates. [ 126 ] Through this process he has achieved both completion of his polygraph examination as well a meeting with CBRM officials to explain his answers. Mr. Burke ’ s honesty and integrity must be determined by the employer as would be the case in any hiring by a private employer. People make mistakes. It will be up to the Respondent to determine whether this applies to Mr. Burke. [ 127 ] Order Accordingly. J.