Tsatsakis v. Canada ( Attorney General )
T-437-98
Cullen J.
28/9/98
21 pp.
Judicial review of Public Service Commission (PSC) decision deciding not to appoint applicant to position of Correctional Supervisor and directing applicant's name be removed from eligibility list for positions-Applicant had been included in 25-candidate eligibility list-Later, five individuals lodged complaints of harassment and abuse of authority against applicant-First investigation concluded three complaints substantiated to some degree-Deputy Warden of Kingston Penitentiary concurred with recommendation to suspend applicant for six days, remove him from acting Correctional Supervisor position and that he attend harassment training-Deputy Commissioner of Correctional Service of Canada (CSC) reduced suspension to four days as found only two complaints substantiated-Assistant Deputy Minister of CSC approached PSC with request to remove applicant's name from eligibility list, following which PSC conducted informal hearing-Assistant Deputy Commissioner of CSC, only witness to testify at hearing, based evidence on investigators' reports, concluded applicant no longer qualified to be Correctional Supervisor as deficient in area of personal suitability-At conclusion of hearing, investigator agreed with latter conclusion-Commission concurred and directed applicant's appointment to position of Correctional Supervisor not be made and name be removed from list-Issues whether investigator erred in law or acted outside jurisdiction in interpretation of onus on respondent and her role under Act, s. 6(2); by permitting respondent to impose more than one penalty upon applicant for same offence; in taking into account incidents of harassment that occurred subsequent in time to placement of applicant's name on eligibility list; by failing to determine that actions of respondent disciplinary in nature; whether investigator erred in law or failed to observe principles of natural justice or procedural fairness by basing decision upon investigation reports; whether investigator based decision on erroneous findings of fact without regard to material before her-Application allowed-Commission accepted hearsay evidence without providing applicant with opportunity to cross-examine authors of investigative reports, thereby clearly violating principles of natural justice-In case at bar, Commission's actions must be gauged by referring to Act, s. 6 rather than s. 21-Commission' s authority under Act, s. 6 discretionary in nature, but parties must be given opportunity to be heard, which it did-Act, s. 6 complied with-PSC specialized parliamentary agency administering Act and responsible for appointment of qualified persons-Discipline not part of its mandate-Matter before PSC simply process to remove applicant from list because of lack of qualifications and did not constitute supplementary discipline-Nothing preventing investigators assessing qualifications under Act, s. 6(2) based on incidents occurring after person placed on eligibility list-Removal from list not disciplinary matter-As disciplinary powers specifically delegated to Treasury Board, power to demote lying with Treasury Board and PSC's revocation of applicant from list not demotion-Finally, designated investigator did not ignore evidence submitted by applicant and did not base its decision on erroneous finding of fact without regard to material before her-Furthermore, Court must defer to PSC's findings of fact-Public Service Employment Act, R.S.C., 1985, c. P-32, ss. 6(2), 21 (as am. by S.C. 1992, c. 54, s. 16; 1996, c. 18, s. 15).