Rajakaruna

Parties/Partis: Gaston Rajakaruna, Applicant, and Treasury Board [Revenue Canada Taxation], Respondent
Court # Cour: T-2735-94
Judgment/Jugement Date: 95-12-08

In the matter of an Application to review and set aside, pursuant to section 18 and section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended

And in the matter of a decision of the Public Service Commission Appeal Board, rendered by Joan Stewart, Appeal Board Chairperson, on October 4, 1984, respecting an appeal under section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended [Public Service Commission Appeal Board File No. 94-TAX-0683]

Reasons for Order

Gibson J.:

These reasons arise out of an application for judicial review of a decision of the Public Service Commission Appeal Board [the "Board"] dismissing the applicant's appeal against selections made for appointment in a closed competition [the "competition"] for positions of Senior Business Auditors at Revenue Canada, Taxation, Calgary, Alberta.

The Board's decision is dated the 4th day of October, 1994.

At all times relevant to this matter, the applicant was an auditor in the Calgary Office of Revenue Canada, Taxation. He was an unsuccessful candidate in the competition.

The competition involved written and oral elements. The written element was scheduled to be held on the 26th day of April, 1994. Shortly before the date, the applicant suffered a recurrence of a back injury. He attended at his chiropractor on April 25th. The chiropractor recommended that the applicant be excused from work "for 2 to 4 days", that is, until April 30th at the latest. The next day, the day scheduled for the written element of the competition, the applicant apparently attempted to reach his team leader at work and the Chairman of the Selection Board to inform them that he would be unable to undertake the written element of the competition that day. On April 27, he apparently was successful in contacting the Chairman of the Selection Board. The recollections of the applicant and of the Chairman of the Selection Board of their conversation varied to some degree but the reasons of the Board reflect the following:

On the one hand, the following evidence at a minimum, was not in real dispute. Mr. Rajakaruna requested to write the exam the week following April 29, and he suggested Tuesday May 3, 1994. Mr. Finch [the Chairman of the Selection Board] did say he would be very reluctant to grant an extension, while Mr. Rajakaruna understood that he absolutely refused to do so. Mr. Finch knew that Mr. Rajakaruna's request was because of his back problem. At the time of the Wednesday, April 27 conversation, the Friday, April 29 was then only 2 days away. Of the 2 to 4 days" in Exhibit A2 [the chiropractor's recommendation for absence], 2 days, April 26 and 27, had already passed. Mr. Finch knew Mr. Rajakaruna was not at work on April 27 and that he was at least very concerned about having to/being fit to, write on Friday. Mr. Finch also knew that Mr. Rajakaruna had an appointment with his chiropractor on Monday, May 2. Mr. Finch, at the very least, did notagree on April 27 that Mr. Rajakaruna could write the exam on May 3.

In the result, the applicant attended, apparently with three other candidates, for the "make up" written element of the competition on Friday April 27. He apparently was in some discomfort or pain. He was unsuccessful on the written element. He appealed to the Public Service Commission Appeal Board against the selections made on the ground that:

It was unfair for the Board not to grant the appellant [the applicant herein] a postponement of his written Knowledge exam. If they had, he would probably have been able to pass. As a result of what the Board Chairman had told him, he had concluded that even though he was unwell, he had to write as scheduled or forego the opportunity.

In its reasons for decision, the Board commented on earlier decisions in similar cases that had been tabled with it. It stated:

I think that one thing those cases, and the case at hand, do illustrate, is that in cases of illness, the timing of a request for postponement of an exam or interview can be critical. Specifically, the candidate must make, or may have to repeat, a clear request for a postponement at a time when he knows for certain that he is unfit to demonstrate his qualifications at the scheduled time.

The Appeal Board concluded in the following terms:

... I have concluded that in this case I could only have allowed Mr. Rajakaruna's appeal if he had requested a postponement on April 29, the day of the exam. I am satisfied that on the Wednesday, what Mr. Rajakaruna said was insufficient to convince Mr. Finch of the certain need to postpone his exam beyond the Friday ...

...

... the issue is not accommodation of preferences, but rather of needs, real needs, within reason. Mr. Finch was not in any way obliged to accommodate preferences, in the way he was to accommodate needs. So, to express my conclusions about the evidence another way, it was not unreasonable for him to conclude on Wednesday that Mr. Rajakaruna was stating a preference [albeit a strong one] but that he had not gone as far as to establish an absolute need to write the exam the following week.

In Caldwell et al v. Public Service Commission et al [ [1979], 25 N.R. 458 [F.C.A.]] , Mr. Justice Pratte stated at page 459:

The question to be determined by an Appeal Board under section 21 [of the Public Service Employment Act] is not whether the selection process that culminated in the appointment under attack was, in all respects, regular and fair, but whether that appointment would contravene the merit principle.

This review is from such an appeal. The merit principle is reflected in section 10 of the PublicService Employment Act [ R.S.C. 1985, c. P-33] , where it is stated:

10.[1] Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.

In the appeal of Richard Nieman [ 1992, A.B.D. [11-3] 268] , a Public Service Commission Appeal Board stated:

It seems to me that the issue to be decided is whether the Selection Board acted reasonably on the information which it had before it. In my opinion a request to have an examination postponed must be clear and unequivocal. It is not up to a selection board to interpret a conversation dealing with an unspecified illness of unspecified severity. I believe the appellant in this case had the onus of clearly requesting a postponement of his examination with reasons for the request so that the Selection Board could make an informed decision as to the propriety of the request.

The same could be said here. The Public Service Commission Appeal Board, on the hearing of this matter, concluded that the applicant had not made such a request in his telephone conversation with the Chairman of the Selection Board on Wednesday, April 27. On Friday, April 29, when he attended for the written element of the competition, he did not state his request for a postponement in clear and unequivocal terms, or, indeed, at all.

On the facts before it, and notwithstanding the able argument of counsel on behalf of the applicant, I conclude that the Board hearing this matter made no reviewable error in reaching its decision to dismiss the appeal of Gaston Rajakaruna. In light of the foregoing, this application for judicial review will be dismissed.

Frederick E. Gibson, Judge

Ottawa, Ontario

December 8, 1995