The application by Taticek for judicial review of an investigator’s decision dismissing his complaint was allowed where the Court found that the investigator failed to forward a draft report or documentation, as promised, and merely issued her final report breaching a duty of procedural fairness owed to Taticek

Administrative law – Decisions of administrative tribunals – Government employees – Employment law – Competition for employment – Investigations – Judicial review – Procedural requirements and fairness – Evidence – Disclosure – draft report

Taticek v. Canada (Attorney General), [2009] F.C.J. No. 474, Federal Court, April 9, 2009, Phelan J.

Taticek, a federal public servant, participated in a job competition in which he was to self-assess his experience in a specific area without knowing what level of experience had been set as a requirement for the position. Taticek self-rated his experience as level 3. As a level 4 was required, Taticek was screened out of the competition. Taticek then submitted a complaint challenging the experience level required and requested an investigation. Taticek alleged that the investigator promised him to provide additional information, a draft copy of the investigator’s report, and an opportunity to make comments and submissions before the report would be finalized. The investigator denied that she had promised to provide the draft report and to afford an opportunity to make submissions. The investigator did not forward the promised documents or draft report to Taticek and issued her final report dismissing Taticek’s complaint. The final report was issued in December 2007 clearly indicating that it was a final report. Taticek sough judicial review of the investigator’s decision.

The Court allowed Taticek’s application and the investigator’s report was quashed. The Court found that Taticek’s evidence about the investigator’s promises was more credible than the evidence of the investigator. The investigator had given Taticek assurances that she would forward additional documents and undertook to provide him with a draft report for comment which was never done. The Court held that it was entirely unfair to promise one thing and do another, even if the investigator believed that the undelivered documents were irrelevant or of no consequence. The unfairness was compounded by the prejudice to Taticek’s ability to challenge the experience level required by the employer.

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