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Appeal-Judicial Review - Fairness - Limiting Witnesses. Ghafari v. Canada (Attorney General)
In Ghafari v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a JR against a decision of the Federal Public Service Labour Relations and Employment Board (FPSLREB) that dismissed a "complaint alleging abuse of authority in an internal appointment process".
In these quotes the court considered whether the Board breached procedural fairness by - after Board questioning in pre-hearing proceedings - limiting the witnesses that the applicant could call:[19] Having heard from Mr. Ghafari, and presumably the respondent, the Board advised the parties in writing, shortly after the teleconference, that it had decided that Mr. Ghafari would not be permitted to call two human resources advisors because their evidence was not relevant to the allegations in the complaint. While reserving on the relevance of their evidence until the hearing, the Board also limited Mr. Ghafari to one witness on each of two other subjects to avoid repetitive testimony. The Board also confirmed Ms. Simard could testify, but not as an expert, so no expert report was needed.
[20] Mr. Ghafari alleges that the Board’s email convening the teleconference did not inform him that he would have to explain his reasons for calling the proposed witnesses or that an exclusion of witnesses might follow. Furthermore, he says, while publicly available guides to hearings before the Board state witnesses may be the subject of pre-hearing conferences, nothing told him an exclusion of witnesses could result. In particular, Mr. Ghafari notes the difference in the email’s contents concerning Ms. Simard’s proposed testimony and that concerning the other witnesses. Finally, he questions whether a conference call was the appropriate forum for this discussion, suggesting that it did not allow him to present documentary evidence and may have interfered with other participants understanding him because they could not see him.
[21] Even in the absence of statutory provisions prescribing particular procedures, an administrative decision-maker has considerable discretion in determining its own procedure: Re:Sound v. Fitness Industry Council of Canada, 2014 FCA 48 at para. 37, citing Prassad v. Canada (Minister of Employment and Immigration), 1989 CanLII 131 (SCC), [1989] S.C.R. 560, 57 D.L.R. (4th) 663 at 568-569 (S.C.R.).
[22] However, here, the governing legislation expressly grants the Board the power to order pre-hearing procedures, to order that a pre-hearing conference or hearing be conducted by means of telecommunication provided all participants can communicate with each other, and to accept any evidence: Federal Public Service Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365, ss. 20(b), (c), (e) (Board Act) and Public Service Staffing Complaints Regulations, SOR/2006-6, s. 27. Moreover, the Board may decide any matter before it without holding an oral hearing: Board Act, s. 22.
[23] I accept that the email convening the teleconference might have been clearer. I also accept that Mr. Ghafari may not have understood that exclusion of his proposed witnesses might result from the teleconference. However, I am not convinced the process the Board followed amounted to a breach of procedural fairness.
[24] Mr. Ghafari had notice that the testimony of his witnesses was the subject of the teleconference. While there is no transcript of the call, I must presume that he was asked to explain to the Board both the nature of the testimony and the reasons that testimony was important to his complaint. Mr. Ghafari does not suggest that, once he understood the nature of the teleconference, he asked the Board for an adjournment or the right to make subsequent submissions and was refused. Consistent with this, the record shows that some time after the parties learned of the Board’s decision, Mr. Ghafari wrote to the Board expressing disagreement with the decision and explaining why those witnesses were important. However, he did not raise any concerns about the process itself. Following Mr. Ghafari’s email, the Board did not change its decision on witnesses, explaining its decision was final.
[25] In my view, this process was open, transparent and procedurally fair.
[26] I have also considered whether the Board’s refusal to consider any evidence from the two human resources advisors constituted a breach of procedural fairness. Mr. Ghafari explained that he believed their evidence was relevant to the design of the “tool”, by which I understand him to mean the job poster, the track record and the validation process. The Board considered that evidence irrelevant to the complaint and so inadmissible.
[27] The Board is “to be afforded considerable discretion in their assessments of the admissibility of evidence” and rarely will “the refusal to allow evidence … be so significant that it will amount to a denial of procedural fairness”: Agnaou v. Canada (Attorney General), 2014 FC 850 at para. 102, aff’d 2015 FCA 294, leave to appeal to refused, 36730 (26 May 2016), citing Université du Québec à Trois-Rivières v. Larocque, 1993 CanLII 162 (SCC), [1993] 1 S.C.R. 471, [1993] S.C.J. No 23 at 490 (S.C.R.) (Trois-Rivières). However, the rejection of evidence will be a breach of natural justice if the rejection “has such an impact on the fairness of the proceeding” that it “[leads] unavoidably to the conclusion that there has been a breach of natural justice” (procedural fairness): Trois-Rivières at 491.
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