ARCHIVED - Info Source Bulletin Number 28

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Nick Forsch v. Canadian Food Inspection Agency, Dolores Neilson, Bob Jackson and Barb Long

Indexed as: Forsch v. Canadian Food Inspection Agency

File No.:	T-405-03
Reference:	2004 FC 513
Date of decision:	April 2, 2004
Before:	Mosley J.
Sections of ATIA / PA:	Ss. 3(j), 8(2)(a), 73 Privacy Act (PA)
Other statute:	Ss. 7, 12 and 13 Canadian Food Inspection Agency Act

Abstract

• Complaint concerning staffing competition process within CFIA
• Jurisdiction of internal staffing tribunal to order disclosure of successful candidates' applications to the complainant
• Procedural fairness requiring disclosure of successful candidates' applications
• Purpose of disclosure consistent with purpose for which the information was obtained

Issues

1. Given the appropriate standard of review, did the tribunal err in concluding that it had no jurisdiction to order the CFIA to disclose documents to the unsuccessful candidate in a staffing competition?
2. Given the appropriate standard of review, did the tribunal err in determining that it had no jurisdiction to offer an interpretation of the Privacy Act?
3. Do the principles of procedural fairness apply to the tribunal established under the CFIA Staffing Complaint Policy? If so, did the tribunal breach the duty of fairness in refusing to order the production of the information evaluated by the selection board and reviewed by the tribunal in relation to the successful candidates?

Facts

The applicant, a veterinarian, was an unsuccessful candidate in a staffing competition by the respondent Canadian Food Inspection Agency ("CFIA"). The advertisement announcing the competition stated that the screening criteria for the Regional Operations Coordinator ("ROC") positions included experience "in the delivery of two or more CFIA programs".

The selection process included three phases:  a screening of the applicants' résumés for minimum qualifications, a written examination and an interview. The selection board consisted of two Regional Directors and a Human Resources Manager. The applicant was one of 16 candidates invited to write the examination. He was not among the seven candidates who proceeded to the interview stage.

The applicant raised concerns about the staffing competition process and the experience of the successful candidates in an e-mail to the Regional Director, a member of the selection board. The applicant subsequently requested copies of the three successful candidates' applications, résumés and examinations. The Regional Director informed the applicant that he was satisfied that CFIA staffing policies had been followed and, in particular, that the "criteria specified for 'Experience' was clearly applied fairly and consistently for all candidates". The Regional Director refused to disclose to the applicant the requested records on the grounds that they contained personal data regarding the candidates' education and employment history whose release would breach the Privacy Act. However, one of the three winning candidates did consent to the disclosure of his personal information to the applicant.

The applicant appealed to an internal tribunal established under a CFIA-approved Staff Complaint Policy ("the Policy"). This internal tribunal is the final level of recourse within CFIA and may, inter alia, dismiss the complaint or direct the delegated manager to take certain corrective measures. The internal tribunal may not substitute CFIA's opinion of an employee's qualifications with its own or direct that the CFIA appoint another person.

The internal tribunal, comprised of a representative each of the employer and of the collective bargaining unit and a third person chosen by the other two, was asked prior to the hearing and at its first sitting to order CFIA to disclose the applications of the two successful candidates in the competition who had not consented to disclosure. The tribunal declined, concluding that it neither had legal authority to challenge the selection board's interpretation of the Privacy Act nor the authority to compel the production of evidence. The tribunal stated that since it did not exercise a "quasi-judicial administrative function, the notion of fairness, as that term is applied in the law of judicial review, simply has no place in our deliberations".

The internal tribunal found that the successful candidates met the experience criteria set out in the advertisement for the ROC positions. The tribunal noted that it had viewed the successful candidates' applications and was satisfied that they met the required qualifications for the positions and that the definition of the required experience had been applied consistently. The tribunal decided that the competition should stand as conducted, but recommended that CFIA review its position on disclosure under the Privacy Act.

The applicant seeks judicial review of the tribunal's decision.

Decision

The application was allowed.

Reasons

Issue 1

Applying the pragmatic and functional approach, the Court ruled that the standard of review with respect to whether the internal tribunal properly interpreted its jurisdiction to compel disclosure is correctness.

The tribunal's decision with respect to its jurisdiction to compel disclosure of information is incorrect. While the tribunal does not have any explicit, legislated grant of power to order disclosure, such as that possessed by an appeal board appointed under the Public Service Employment Act ("PSEA"), such power exists, in a general sense, as part of the basic principles of procedural fairness. Those principles apply to the tribunal; the tribunal erred in determining that such principles play "no part" in its deliberations. Although the tribunal does not have the powers vested in the Inquiries Act, as do appeal boards under the PSEA, the power to ensure that an individual, who is part of a hearing process created by virtue of a general statutory mandate, has a meaningful ability to know of evidence relevant to his complaint, upon which both the employer and tribunal rely, exists as part of the common law of procedural fairness. The Policy explicitly recognizes that the tribunal is to act in accordance with procedural fairness. The fact that the Policy explicitly recognizes that the tribunal "must give the other party to the complaint the time to and opportunity to review and respond to the evidence" supports the finding that the tribunal has jurisdiction to order disclosure of evidence in proceedings before it.

Issue 2

The correct standard of review on this question is correctness, given that the question is one of mixed fact and law requiring the interpretation of the Policy and the analysis of the Privacy Act, regarding which questions the Court has greater expertise than the tribunal.

The president of the CFIA has authority, under s. 7 of the CFIA Act, 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 on Privacy Act grounds. The tribunal has authority pursuant to the Policy to review the actions of CFIA managers in a competition and generally, as well, the application of the delegated authority to make Privacy Act determinations related to disclosure requests.

The tribunal's finding that the Policy did not permit it to interpret the Privacy Act was incorrect, given that, as a specialized board established to provide directions with respect to any corrective action that the CFIA should undertake in the implementation of its staffing policies, it could have and should have provided its own analysis of whether the selection board properly refused the applicant's request for disclosure pursuant to the Privacy Act.

Issue 3

In light of the fact that CFIA has determined in the Policy to discharge its authority pursuant to s. 13 of the CFIA Act "in accordance with the rules of procedural fairness", and the fact that the applicant's interests are affected by the tribunal's decision, the duty of procedural fairness is engaged in this administrative context and the tribunal erred in finding that procedural fairness had "no place" in its deliberations. The scope of procedural fairness owed in this case must be determined in light of the principles set out by L'Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

The selection board and the tribunal incorrectly determined that the successful candidates' applications were protected by the Privacy Act. Further, the tribunal, and CFIA in its submissions in this proceeding, erred in assuming that simply because an applicant is told that a successful candidate meets the required experience, that this negates any obligation to allow the complainant to review the information that supports this assertion and is relevant to the applicant's complaint. However, the tribunal was correct to conclude that disclosure of the successful candidates' examination answers was not relevant to the applicant's complaint and therefore disclosure was not required.

As is clear from CFIA's own explanation of its Policy, the procedure to be followed in disclosing information to a complainant is a two-step process. First, the requested documentation is to be examined by CFIA to determine if it contains "personal information" as defined in the Privacy Act. If so, CFIA is directed to determine if the disclosure of such information would be consistent with the purpose for which it was obtained. Such direction is in line with subsection 8(2)(a) of the Privacy Act. Second, the information must be assessed for relevancy to the complaint.

CFIA has established this procedure for determining whether documents should be disclosed in the complaint process and stipulated that the rules of procedural fairness are to apply to the tribunal. That procedure was not correctly reviewed by the tribunal. While the respondent noted at the hearing that the impact of the decision on the applicant Forsch is not akin to the impact of the decision on the applicant in Baker, supra, the complaint has a medium impact on the applicant, who believes that he may have unfairly lost the opportunity for advancement within CFIA through the ROC competition.

Balanced with the fact that the nature of the decision being made is not designed to be adversarial, and that the process is not intended to resemble the judicial process, these factors led the Court to determine that the tribunal's decision not to disclose the successful candidates' applications violated the principles of procedural fairness. The applicant could not fully and fairly present his complaint without this information, and the privacy rights of the successful candidates protected by the Privacy Act would not have been infringed by the disclosure, as the CFIA could have provided the information in a manner that did not violate the Privacy Act. The fact that the employer and the tribunal reviewed the information does not alleviate this breach, as the applicant's participation in the process was impugned by not being able to review, for himself, the exact nature of the experience claimed by the successful candidates. This information was also relevant to his staffing complaint.

The disclosure of the successful candidates' applications within the staffing complaint process is a purpose consistent with the purpose for which the information was obtained, that is, in seeking an appointment within CFIA through a staffing competition. Personal information found in the successful candidates' applications that did not relate to their past employment positions and duties related thereto while employed at a "government institution" is beyond the scope of permissible disclosure set out in para. 3(j) of the Privacy Act, and would not be relevant to the applicant's complaint, and thus would have to be severed from the requested records.

Procedural fairness did not require CFIA or the tribunal, in accordance with the Policy, to provide the applicant with the successful candidates' examination answers and the selection board's related notes of assessment as they were not relevant to the applicant's original complaint and thus their non-disclosure did not violate the applicant's ability to state his case.

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