Government employee attacks internal hiring decision without success

Administrative law – Decisions reviewed – Labour and employment boards – Bias – Judicial review applications – Appeals – Jurisdiction – Procedural requirements and fairness – Standard of review – Reasonableness – Correctness – Employment law – Appointment

Gulia v. Canada (Attorney General), [2021] F.C.J. No. 522, 2021 FCA 106, Federal Court of Appeal, June 1, 2021, W.W. Webb, J.B. Laskin and M. Rivoalen JJ.A.

The applicant, Yoginder Gulia, was a registry officer with the Courts Administrative Service of the Respondent, Government of Canada.  Mr. Gulia applied for an internally advertised position of senior registry officer with the Tax Court of Canada.  He was not selected for the position.  Mr. Gulia made a complaint pursuant to section 77 of the Public Service Employment Act.  He alleged abuse of authority in the choice of process, the area of selection, and the assessment of merit.  He also alleged retribution for his union activity, and racial bias in the appointment process.

The one-member panel of the Federal Public Sector Labour Relations and Employment Board (“Board”) dismissed Mr. Gulia’s complaint.  The board held it had no jurisdiction to consider the allegation relating to area of selection, and none of the other grounds of complaint had merit.   In the context of its decision, the Board summarized its concerns with Mr. Gulia’s conduct during the hearing of his complaint.

Mr. Gulia applied for judicial review of the Board’s decision.

The Board explained, and the Court emphasized, that Mr. Gulia had the burden of proving, on a balance of probabilities, that there was an abuse of authority in the appointment process.

The Court rejected Mr. Gulia’s argument that the correctness standard was applicable on this application for review.  The Court referred to the Vavilov decision and confirmed that reasonableness was the presumptive standard of review.  The Court also said that, for procedural fairness arguments, the test is whether the procedure was fair having regard to all of the circumstances.

Mr. Gulia first alleged that the Board improperly applied the evidence when it found there was no abuse of authority in the choice of process and area of selection.  Mr. Gulia argued that the Tax Court registry had a negative view of Federal Court registry officers.  Mr. Gulia and the Respondent called evidence on this issue at the hearing.  The Board held that Mr. Gulia’s evidence was unattributed gossip.  The Respondent put forward evidence showing the successful applicant was from the Federal Court.  The Court held the Board’s decision was reasonable.

Mr. Gulia next alleged the Board was wrong to conclude it had no jurisdiction to hear complaints about areas of selection.  The Board relied on its own caselaw to conclude it had no jurisdiction.  The Court held this was reasonable.

Mr. Gulia next alleged that his written examination was marked in a biased and erroneous manner.  He pointed to the bonus marks given to other applicants for their answers.  Mr. Gulia was eliminated from the appointment process because he received a failing grade on one of the questions.  The Board was satisfied that the marking was objective and conformed with the rating guide.  The Court held there was no reasonable apprehension of bias, or any errors, in the marking of the examination.

Mr. Gulia further pursued his allegation of bias by pointing to the Board’s reasons in which the Board commented on his conduct during the hearing.  Mr. Gulia alleges the Board’s description was inaccurate and this supported his allegation of bias.  The Court disagreed.

The Court dismissed the application and ordered costs against Mr. Gulia.  The Court fixed costs at $2,500.

This case was digested by Scott J. Marcinkow, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Scott Marcinkow at smarcinkow@harpergrey.com.

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