A-553-84
Ronald Sorobey and Saul Popoch (Applicants)
v.
Public Service Commission Appeal Board
(Respondent)
INDEXED AS: SOROBEY v. CANADA (PUBLIC SERVICE COM
MISSION APPEAL BOARD)
Court of Appeal, Hugessen, MacGuigan and
Lacombe JJ.—Ottawa, October 1, 1986
Judicial review — Applications to review — Application to
set aside Board's decision — Unsuccessful candidates for
positions of senior program officer alleging some successful
candidates having prior knowledge of general nature of ques
tions — Successful candidates intervening, giving their version
of facts at Appeal Board hearing — Becoming witnesses —
Applicants seeking to cross-examine — Board asking interve-
nants if prepared to answer questions — Intervenants refusing
— Fairness requiring opportunity to test evidence by cross-
examination — By inviting witnesses to decline to submit to
cross-examination, Board failing to give applicants fair hear
ing — Court unprepared to assess consequence of breach —
Application allowed — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28 — Public Service Employment Act, R.S.C.
1970, c. P-32, s. 21.
Public Service — Appeals — Unsuccessful candidates in
closed competition appealing to Public Service Commission
Appeal Board — Board hearing evidence from successful
candidates — Cross-examination not permitted — Denial of
fairness — Board's decision set aside — Public Service
Employment Act, R.S.C. 1970, c. P-32 s. 21.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Cardinal et al. v. Director of Kent Institution, [1985] 2
S.C.R. 643.
DISTINGUISHED AND DOUBTED:
Schaaf v. Minister of Employment and Immigration,
[1984] 2 F.C. 334; (1984), 52 N.R. 54 (CA.).
REFERRED TO:
Perry v. Public Service Commission Appeal Board,
[1980] 1 S.C.R. 316; Schwartz v. R., [1982] 1 F.C. 386
(C.A.).
COUNSEL:
Andrew J. Raven for applicants.
Dogan Akman for respondent.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
HUGESSEN J.: This is a section 28 application to
review and set aside a decision of an appeal board
constituted under section 21 of the Public Service
Employment Act (R.S.C. 1970, c. P-32). The
applicants had been unsuccessful candidates in a
closed competition held to establish an eligible list
for appointment to a number of new positions of
senior program officer in the Department of Na
tional Revenue, Customs and Excise.
The Appeal Board hearing, together with two
related matters heard at the same time, extended
over ten days. One of the applicants' allegations
before the Board was that some of the successful
candidates had had an unfair advantage in the
selection process through having had prior knowl
edge of the general nature, if not necessarily of the
details, of the questions to be asked and that this
had resulted in the applicants' being excluded
through failure to obtain a sufficiently high mark
in the written examination. On the seventh day of
the hearing, four of the successful candidates
appeared and intervened. They did not, as they
might have, limit themselves to simple commentar
ies or representations with regard to the appli
cants' case but also gave their own versions of the
facts. In a word, they became witnesses. The appli
cants' representative sought to cross-examine them
but, before he could do so, the Appeal Board asked
each intervenant if he would be prepared to answer
questions. Each refused and was then excused by
the Board.
It is settled law that fairness required that the
successful candidates be given notice of the Appeal
Board hearing and an opportunity to intervene
therein if they so wished.' The opposite side of
that coin must surely be that, if such intervention
takes the form, as it did here, of the successful
candidates offering their own evidence on some of
the questions in issue, the applicants must be given
the opportunity to test that evidence in the usual
way, that is by cross-examination. The question is
not to know whether the Appeal Board could
oblige the intervenants, or anyone else, to testify;
they chose to do so voluntarily. Nor is it to know
whether the Appeal Board could force them to
answer questions to which they objected; the appli
cants were never given the opportunity to put any
questions. They were foreclosed from doing so by
what may fairly be interpreted as an invitation
from the Appeal Board to the witnesses to decline
to submit themselves to cross-examination. If, as
the Board seemed to think, it did not have the
power to oblige the witnesses to submit to cross-
examination on matters which were relevant to the
enquiry, then it should have advised them that
their evidence-in-chief would be regarded as
having little or no weight and acted accordingly.
By acting as it did, the Appeal Board failed to give
the applicants the fair hearing to which they were
entitled.
Nor are we prepared to say, as invited by the
respondent, that this breach is of no consequence.
The evidence offered by the intervenants, as we
have said, bore, at least in part, upon questions
which were in issue before the Appeal Board. It is
simply impossible to say what might have come
out if they had been cross-examined on those
questions. As has recently been stated by high
authority,
... the denial of a right to a fair hearing must always render a
decision invalid, whether or not it may appear to a reviewing
court that the hearing would likely have resulted in a different
decision.
(Cardinal et al. v. Director of Kent Institution,
[1985] 2 S.C.R. 643, at page 661).
' See Perry v. Public Service Commission Appeal Board,
[1980] 1 S.C.R. 316; Schwartz v. R., [1982] 1 F.C. 386 (C.A.).
Whether or not the decision of this Court in
Schaaf v. Minister of Employment and Immigra
tion, [1984] 2 F.C. 334; (1984), 52 N.R. 54
(C.A.), can survive the Cardinal decision, it is
clear that Schaaf is limited to a situation where
the alleged errors [at pages 341 F.C.; 58 N.R.]
... could not and did not have any effect upon the outcome of
the inquiry
and were therefore not errors committed "in mak
ing" the decision within the meaning of paragraph
28(1)(b) of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10]. That is a far cry from the
present case.
The section 28 application must be allowed, the
impugned decision set aside, and the matter
referred back to the Commission for it to establish
a new appeal board pursuant to section 21 of the
Public Service Employment Act.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.