PRIVACY |
Forsch v. Canada (Food Inspection Agency)
T-405-03
2004 FC 513, Mosley J.
2/4/04
29 pp.
Judicial review of tribunal's decision upholding results of staffing competition conducted by Canadian Food Inspection Agency (CFIA) and refusing to compel disclosure of certain information regarding other candidates--(1) Tribunal erred in concluding it had no jurisdiction to order CFIA to disclose documents to applicant--While tribunal not having explicit, legislated grant of power to order disclosure, unlike appeal board appointed under Public Service Employment Act, which has authority to summon witnesses or compel production of documents, such power exists, in general sense, as part of basic principles of procedural fairness--Principles of procedural fairness apply to tribunal, and tribunal erred in determining such principles play "no part" in its deliberations --Power to ensure individual, who is part of hearing process created by virtue of general statutory mandate (Canadian Food Inspection Agency Act (CFIA Act), s. 13) having meaningful ability to know of evidence relevant to complaint, upon which both employer and tribunal rely, exists as part of common law of procedural fairness--Express recognition in Staffing Complaint Policy that tribunal to act in accordance with procedural fairness--Q & A Guide stating tribunal must decide if information relevant to resolution of complaint, and if so, admit it--Then, tribunal must give other party to complaint time and opportunity to review and respond to evidence--This supports finding tribunal has authority to order disclosure of evidence in proceedings before it--(2) Tribunal erred in determining not having jurisdiction to offer interpretation of Privacy Act (PA)--President of CFIA, under PA considered "head of the government institution", by virtue of definitions of "government institution" and "head" in PA-- President has authority, under CFIA Act, s. 7, to delegate to "any person any power, duty, or function conferred on the President under this Act or any other enactment", including authority to make decisions related to disclosure requests under PA grounds--Tribunal, created by Policy of CFIA, has authority pursuant to Policy to review actions of CFIA managers in competition and generally, as well, application of delegated authority to make PA determinations related to disclosure requests--As specialized board established to provide directions with respect to any corrective action CFIA should undertake in implementation of staffing policies, tribunal could/should have provided own analysis of whether selection board properly refused applicant's request for disclosure pursuant to PA--Policy containing no limit as to areas of staffing process tribunal may consider--(3) Tribunal erred in finding procedural fairness had "no place" in its deliberations--Employer adopting Staffing Complaint Policy to ensure employees appointed to CFIA in fair and open way--Policy stating internal tribunal "will operate in accordance with rules of procedural fairness" and setting out basic principles of such duty--Such is manner in which CFIA determined it will act in discharging authority pursuant to CFIA Act, s. 13--In light of this, and fact applicant's interests affected by tribunal's decision, duty of procedural fairness engaged in this administrative context--Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 setting out non-exhaustive list of factors to consider, in determining content of duty of fairness in particular administrative setting--Applicant maintaining PA cannot override obligation of tribunal to follow rules of procedural fairness--In relation to requested information here, selection board and then tribunal incorrectly determined successful candidates' applications protected from disclosure by PA-- Further, tribunal erred in assuming simply telling applicant successful candidate meets required experience, negates any obligation to allow complainant to review information supporting this assertion and relevant to applicant's complaint --However, correctly concluding disclosure of successful candidate's examination answers not relevant to applicant's complaint, and therefore disclosure not required--Complaint having medium impact on applicant--Balanced against nature of decision (not designed to be adversarial), and process (not intended to resemble judicial process) tribunal's decision not to disclose successful candidates' applications violating principles of procedural fairness--Applicant could not fully and fairly present complaint without this information, and privacy rights of successful candidates protected by PA would not have been infringed by disclosure, as CFIA could have provided information in manner not violating PA--Disclosure of successful candidates' applications within staffing com-plaint process consistent with purpose for which information obtained, i.e. in seeking appointment within CFIA through staffing competition--Selection board should have recognized this fact and disclosed this information--Personal information in successful candidates' applications not relating to past employment positions and duties related thereto while employed at a "government institution" beyond scope of permissible disclosure--Not relevant to applicant's complaint, and would have to be severed from requested records--As to disclosure of successful candidates' examination answers and selection board's related notes of assessment, applicant claiming examinations unfairly or inconsistently assessed for first time at hearing--This ground not forming part of either original complaint or follow-up correspondence with delegated manager--Procedural fairness not requiring CFIA or tribunal, in accordance with Policy, to provide this portion of requested disclosure--Examination answers of other candidates not relevant to applicant's original complaint sent to tribunal (scheduling of written examination, adequacy of questions as test of knowledge)--Decision examinations answers not relevant to complaint not violating applicant's ability to state case--Application allowed--Privacy Act, R.S.C., 1985, c. P-21, s. 3 "government institution", "head"-- Canadian Food Inspection Agency Act, S.C. 1997, c. 6, ss. 7, 13--Public Service Employment Act, R.S.C., 1985, c. P-33.