[2013] 2 F.C.R. D-9
Public Service
Practice
Judicial review of final level grievance decision by Canadian Food Inspection Agency (CFIA) granting applicant’s grievance in part—While grievance granted, CFIA deciding not to grant applicant’s requested corrective action to revoke disputed appointment; rather, offering applicant opportunity to be assessed against requirements in ongoing VM-02 Veterinarian-in-Charge selection process—Applicant, veterinarian, employed by CFIA, holding VM-01 position in animal health division—CFIA holding competition to staff VM-02 position within meat hygiene stream but applicant not applying since experience, interests not relating to stream in question—CFIA later using eligibility list generated therein to staff VM-02 district veterinarian vacancy relating to animal health—Dr. Griffith (respondent) successful candidate in disputed job vacancy—Applicant filing grievance under Public Service Labour Relations Act, S.C. 2003, c. 22 challenging CFIA’s decision to use eligibility list to staff disputed vacancy, alleging that decision to treat two positions as similar violating CFIA’s staffing principles of fairness, openness, efficiency—CFIA denying applicant’s grievance at final level but decision quashed on judicial review—Whether CFIA erring in refusing to revoke respondent’s appointment; whether remedy provided to applicant reasonable—Outcome of final level grievance decision in present case unreasonable notably because not responsive to applicant’s claim, not providing applicant any meaningful remedy—Nothing suggesting CFIA’s offer remedying applicant’s loss of opportunity in any way, that CFIA took reasonable steps to provide applicant with suitable remedy in particular circumstances—Although open to CFIA to choose how to remedy loss applicant suffering as seeing fit, must do so in reasonable, meaningful manner—CFIA’s proposed corrective action unjustified in reasons, outcome; therefore unreasonable—Decision-making process lacking jurisdiction, transparency, intelligibility in many respects—CFIA’s right to revoke impugned appointment following successful grievance thereagainst existing as implied term of appointment—Final level grievance decision at issue not explaining why appointment made following erroneous, unreasonable process considered valid, irrevocable—CFIA not presenting compelling justification to read down authority to cancel appointment so as to include only practices, breaches on part of appointed candidates—CFIA vested with large powers regarding appointments of employees by virtue of Canadian Food Inspection Agency Act, S.C. 1997, c. 6, including authority to create policies surrounding appointment procedures—Had Parliament intended to create exception whereby appointments made by CFIA final, irrevocable except where fraudulent misrepresentations made by successful candidate, would have done so in express, unequivocal terms—Application allowed.
Backx v. Canada (Canadian Food Inspection Agency) (T-1793-11, 2013 FC 139, Gagné J., judgment dated February 8, 2013, 15 pp.)