This was an unsuccessfull appeal by appellant (“Lavigne”) of Department of Justice, Assessment Board’s decision not to consider him as a canditate for an employment opportunity

Administrative law – Decisions of administrative tribunals – Abuse of public office – Employment law – Competition for employment – Judicial review – Compliance with legislation – Statutory powers

Lavigne v. Canada (Deputy Minister of Justice), [2009] F.C.J. No. 827, 2009 FC 684, Federal Court, July 2, 2009, Shore J.

A manager at the Department of Justice Canada’s Tax Litigation Directorate in Montreal posted advertisements for two positions with the Department. The advertisements stated that in order to qualify for the two positions, candidates had to demonstrate that they met the essential qualifications. These essential qualifications were defined by the director and signed on September 22, 2006. However, the definitions were dated September 8, 2006 to reflect the approximate moment they were created.

The appellant, Lavigne, had extensive experience in both commercial litigation and tax litigation. He submitted two applications for the positions. The assessment board concluded that he did not meet one of the essential qualifications because he did not have approximately 10 years of experience in conducting complex and varied civil litigation before the Tax Court of Canada. The qualifications that were posted by the director stated only that the applicant had to have experience before the Tax Court of Canada, and did not specify that ten years of experience was necessary. This criteria was the subject of an internal document.

Lavigne was not considered for the positions. He filed a complaint and argued that the Assessment Board had abused its authority in rejecting his applications on the basis of selection criteria that were not advertised. He alleged that the manager’s discretion to determine and define essential qualifications cannot extend to a discretion not to advertise those definitions. He alleged that the manager had made substantial changes to the information presented in the advertisements and, in so doing, unjustly caused him to be eliminated from the appointment process where he otherwise would have been accepted.

The Federal Court held that there is no such thing as absolute authority in administrative decisions, and that in this case discretion in the exercise of power is held in check by the guiding principles in the Public Service Employment Act, 2003, c. 22 (the “Act”). Analyzing the provisions of the Act, the Court held that a complaint of abuse of authority will be founded where bad faith or personal favouritism is established. The principle of bad faith requires an element of intent, and requires more than error or omission, or even improper conduct.

The selection criteria were finalized on September 8, 2006, even though the document was not signed until September 22, 2006. The selection criteria were established before applications were assessed. As set out in the governing rules and legislation, it is within the manager’s authority to create selection criteria, even though they were never published and not finalized until after the advertisements were posted. There is no evidence that the assessment board or the manager used the selection criteria for an improper reason or that the selection criteria were designed to improperly exclude Lavigne. In these circumstances the court held that there is no abuse of authority.

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