Date: 19991118
Docket: T-165-99
BETWEEN:
PAUL JEYAKUMAR
Applicant
- and -
ATTORNEY GENERAL OF CANADA,
ROSLYN MacVICAR, LAUREN DELGATY and HAL HICKEY
Respondents
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] Mr. Jeyakumar was denied an adjournment of a hearing before the Appeal Board of the Public Service Commission of Canada. The issue for determination in this judicial review is whether this denial violated the principles of natural justice.
A. Factual background
[2] Mr. Jeyakumar was an unsuccessful candidate in a competition for an executive position in the federal Public Service. Mr. Jeyakumar appealed against the selection of the successful candidates, pursuant to s.21 of the Public Service Employment Act. His bargaining agent, the Professional Institute of the Public Service of Canada (PIPSC), agreed to represent him at the appeal, and appointed Mr. Reniers as his representative. Mr. Reniers represented Mr. Jeyakumar in the disclosure process. The allegations submitted by Mr. Reniers on behalf of Mr. Jeyakumar raised complex issues, especially in light of the poor documentation and imprecise marking guidelines maintained by the Selection Board.
[3] On September 4th, 1998, the appeal was scheduled for hearing on November 24th, 1998. On October 30th, Mr. Reniers resigned his position effective November 10th. As there was no other representative from PIPSC available to assist Mr. Jeyakumar, PIPSC sought an adjournment to enable it to appoint a new representative. The adjournment request was made on November 18th during a conference call with the Appeal Board Chair. The Appeal Board Chair refused the adjournment request.
[4] The next day, PIPSC hired Mr. Lang, a retired PIPSC representative to assist Mr. Jeyakumar with his appeal. Despite Mr. Lang"s best efforts, he was unprepared to adequately represent Mr. Jeyakumar by the date of the appeal hearing. As a result, at the appeal hearing on November 24th , 1998, Mr. Lang requested an adjournment to ensure that Mr. Jeyakumar"s right to have meaningful representation was not violated. Mr. Lang made this request at the commencement of the appeal hearing, and later during the course of the hearing. On both occasions, the Appeal Board Chair refused the request. 1
B. The Appeal Board Chair"s decision
[5] The Appeal Board Chair"s decision respecting the adjournment application made on November 18th , 1999 is found in the transcript of that proceeding and is as follows:
| Upon weighing all of the competing interests, the request for postponement of this Appeal Hearing is denied. Mr. Fredericks has been the representative of record, although substantively the Appeal is new to him. He knew of the impending dilemma on November the 10th, 1998, which would have given him two weeks to prepare the Appellant"s case. |
| Although the Appeal Board recognizes the hardships that being short staffed can cause and recognizes that Mr. Fredericks is scheduled to move on Tuesday, November 24th, 1998, I do not find that these factors, inclusive with the fact that the Appellant, Mr. Jeyakumar, may be unrepresented, outweigh the competing interests brought forward by Ms. Black on behalf of the Department. For the above reasons, the postponement request is denied and the Appeal Hearing remains scheduled for Tuesday, November 24th, 1998. 2 [Emphasis added] |
[6] Respecting the "competing interests" found by the Appeal Board Chair, the following portions of the transcript describe them as stated by Ms. Black, representative for the Public Service Commission, and responded to by Mr. Fredericks, representative for PIPSC:
| Ms. Black: |
| Yes. We have a lot of difficulty with this postponement at what amounts to the eleventh hour. We don"t believe the Public Service Commission and Revenue Canada, that is to say my Program, (inaudible), should have to pay the cost of PIPS not being able to produce a representative. Surely a week is more than sufficient time for another representative to prepare themselves. |
| We feel the cost to the public of this Appeal is already very high, given the time spent by the hiring manager and myself preparing both for disclosure and the Hearing. And preparing again for this Hearing will be difficult, given the detail involved in the allegations. |
| The allegations a lot of them surround the actual content of the interviews. These events are becoming older in time, and more and more difficult to recall. The interviews took place the week of March 9th --- 3 |
| ... |
| Preparing again will be difficult given the detail involved in the allegations, most of which have centred on the content of the interviews. 4 |
| ... |
| I think the Appeal is reasonably straightforward, in the sense that largely the allegations centre around the conduct of the interview process. I do certainly believe that a week is sufficient time for another representative to prepare themselves. I don"t think there is extensive research involved in this Appeal. Just a question of reviewing the file. 5 |
| ... |
| Mr. Fredericks: |
| Initially Ms. Black suggested that preparing again for the Department would be very difficult, given the details of the allegations. And I see that as a bit contradictory to what she"s saying right now, that, you know, these allegations aren"t particularly complex and could be easily prepared for. |
| I agree that it will be difficult for the Department to prepare at a later time, but you can imagine the difficulty that that will face -- or that a new representative will face in order to even get into the -- at the outset from a fresh start. And I think that"s highly significant. 6 |
C. The legal test
[7] With respect to the test for finding a denial in natural justice, I find the following statement by Décary, J.A. in Siloch v. Minister of Employment and Immigration, 151 N.R. at 78-80 to be important:
| It is well settled that in the absence of specific rules laid down by statute or regulation, administrative tribunals control their own proceedings and that adjournment of their proceedings is very much in their discretion, subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. (Prassad v. Minister of Employment and Immigration, [1989] 3 W.W.R. 289; 93 N.R. 81; 57 D.L.R. (4th) 663, at 569 S.C.R., Sopinka, J.) |
| ... |
| ... where the adjudicator did not enquire as to the length of the adjournment being sought nor offer the applicant a short adjournment to enable her to find new counsel; and where there is absolutely no indication that a short adjournment would affect the immigration system or needlessly delay, impede or paralyse the conduct of this particular inquiry, the adjudicator, in denying the adjournment on March 4, 1991, deprived the applicant of her right to a fair hearing. |
| ... |
D. Analysis
[8] Applying the facts of the present case to the test found by Décary, J.A. in Siloch, I find that there has been a denial of natural justice.
[9] The decision that is really under review is the decision of November 18th, 1998 where the merits of the application were first considered. It appears that the decision was made as if Mr. Jeyakumar was somehow to blame for the events that lead to the request for the adjournment. That is, it is as if there was a history of delay and that the November 24th hearing was set peremptorily, and, therefore, no excuse for an adjournment would do.
[10] I find that there was no evidence of any previous fault on the part of Mr. Jeyakumar or his representatives, or any fault in the making of the adjournment request for entirely understandable reasons. The record discloses that there was only one previous adjournment at the disclosure stage which was by consent. The resignation of Mr. Jeyakumar"s representative was an unsuspected turn of events, and I find that due notice was given that Mr. Jeyakumar would not be adequately represented at the November 24th hearing, thus causing a significant concern to arise about the fairness of such a hearing. Nevertheless the adjournment was not granted.
[11] In my opinion, under these circumstances, for the decision not to grant the adjournment to not cause a denial of natural justice, a significant and compelling reason was required. I find that no such reason existed.
[12] As can be seen from the portions of the transcript of the November 18th proceeding as above quoted, Ms. Blacks" reasons for objecting to the request for an adjournment were weak. It is very hard to understand how the Appeal Board Chair could have found these reasons to constitute "competing interests" in the face of an almost certain unfair hearing due to the lack of representation, or adequate representation, of Mr. Jeyakumar.
[13] In any event, the fear expressed by Mr. Fredericks during the November 18th proceeding was proved to be warranted during the course of the November 24th hearing. During the course of the hearing, Mr. Lang, who it is acknowledged is a very experienced and capable representative, stated to the Appeal Board Chair that, even though he had given it his best efforts, he could simply not adequately conclude the hearing on behalf of Mr. Jeyakumar because he was insufficiently prepared. In the face of this statement, the Appeal Board Chair made the following finding in the subsequent reasons delivered:
| ... On the date of the hearing, I again considered the relevant facts presented to me by the appellant and the Department, and weighed the interests of the appellant, Department, successful candidates, and the Appeal Board, in ensuring the adherence to the principles of natural justice and fairness. At the hearing I found that natural justice and fairness would be best served by proceeding with the hearing as scheduled and denied the applicant"s request for an adjournment of the hearing.7 |
[14] Thus, even though the adjournment was not granted on November 18th, in part on the expectation that the case could be prepared and properly conducted on November 24th, this expectation was proved to be wrong. This should have been acknowledged.
[15] It is important to note that no attempt was made by the Appeal Board Chair on November 24th to find out how much time would be needed by Mr. Lang to become adequately prepared. It might very well be that a day, a week, or perhaps a few weeks was all that was required. As Décary J.A. cited in Siloch as quoted above, it was incumbent upon the Appeal Board Chair to canvass this issue as an essential part of exercising his discretion. This was not done, and, consequently, a reviewable error occurred.
O R D E R
Accordingly, I set aside the decision of the Appeal Board Chair and refer this matter back to the Appeal Board for redetermination before a differently constituted panel.
Since he is the successful party, I grant costs to Mr. Jeyakumar.
Judge
OTTAWA
__________________1 This precis is adapted from the Applicant"s Overview and Facts, Applicant"s Application Record, p.166.
2 Transcript of November 18, 1998 Proceeding, p.21.
3 Ibid. p.8-9.
4 Ibid. p.10.
5 Ibid. p.16.
6 Ibid. p.17.
7 Reasons of January 5, 1999, p.3.