[2011] F.C.J. No. 682

2011 FC 542

Federal Court

Zinn J.

May 11, 2011

The Federal Court held that the Public Service Staffing Tribunal breached its duty of procedural fairness by excluding potentially relevant evidence without proper consideration and set aside the tribunal's decision.

The applicant, Norman Murray, is an African-Canadian man who had been employed with the respondent, the Immigration and Refugee Board in Toronto since 1989. In October 2006, the IRB announced plans to reorganize in an effort to avoid layoffs. The reorganization plans included replacing current Refugee Protection Officer ("RPO") positions with Tribunal Officer positions using a non-advertised appointment process. The applicant, whose acting appointment as an RPO had ended, did not qualify for Tribunal Officer appointment.

The applicant filed a complaint with the Public Service Staffing Tribunal (the “PSST”) alleging that the non-advertised appointment process discriminated against him on the basis of race and that it constituted systemic discrimination against visible minorities. The respondent heard from several witnesses, and reserved its decision following the close of proceedings. Nearly one year later, the Public Services Commission of Canada (the “PSC”) released an audit report which was critical of the non-advertised appointment process. The applicant submitted a copy of the PSC’s audit to the PSST and to the respondent, neither of which appeared to have considered it before the PSST rendered its decision two months later, dismissing the applicant’s complaint.

The court considered whether the PSST’s decision to exclude the evidence submitted by the applicant regarding the audit report constituted a breach of procedural fairness. The court was of the view that while a tribunal has the discretion to refuse to admit evidence, refusing to admit relevant evidence engages the rule of natural justice that a party to an administrative proceeding has the right to be heard. While the respondent submitted that the evidence in question would not have had an important influence on the result of the case, the court held that as no mention of the audit report was made in the PSST’s decision, it did not appear that the evidence was properly considered before being rejected.

The court held that as a duty of a board to provide procedural fairness does not end with the conclusion of a hearing, evidence received by either party must be placed before a decision-maker for his or her consideration. As there was no evidence to suggest that the decision maker considered the audit report before rejecting it, the court held that the applicant’s right to procedural fairness was breached by the PSST, the decision was set aside and the matter was remitted back to the PSST.