Date: 20040414
Docket: T-2127-01
Citation: 2004 FC 557
Ottawa, Ontario, this 14th day of April, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
ABUBAKAR CHOWDHURY
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Abubakar Chowdhury works part-time as a Data Researcher at Human Resources Development Canada. In 2000, he applied for a full-time position with Citizenship and Immigration Canada ("CIC"). The competition for that position was closed, meaning that only persons employed in the federal public service were eligible to participate in it. Mr. Chowdhury was successful. In April 2001, he was appointed to a full-time, indeterminate position.
[2] The next month, CIC discovered that Mr. Chowdhury had not been eligible to compete for his new job because he worked part-time, not full-time. CIC asked the Public Service Commission to establish a Board of Inquiry to look into the matter. In due course, a Board reviewed Mr. Chowdhury's appointment and concluded that he had been ineligible to participate in the competition. It recommended to the Commission that his appointment be revoked. The Commission accepted that recommendation.
[3] Mr. Chowdhury argues that the Commission erred and asks me to overturn its decision. However, I can find no error on the Commission's part and must, therefore, dismiss this application for judicial review.
I. Issues
[4] Mr. Chowdhury presented three issues:
1. What is the standard of review applicable to the Commission's decision?
2. Did the Commission err in its interpretation of the Public Service Employment Act, or the Part-time Work Exclusion Order?
3. Were the written reasons of the Board of Inquiry adequate?
II. Analysis
A. What is the standard of review applicable to the Commission's decision?
[5] Mr. Chowdhury argues that the Commission erred in accepting the Board of Inquiry's interpretation of the Public Service Employment Act, R.S.C. 1985, c. P-33. He suggests that on matters such as statutory interpretation, the Commission should be held to standard of correctness, as the Federal Court of Appeal recognized in Boucher v. Canada (Attorney General), [2000] F.C.J. No. 86 (QL) (F.C.A.).
[6] For its part, the respondent argues that this case turns more on the interpretation of the Part-time Work Exclusion Order than on the Public Service Employment Act. Since that Order was issued by the Commission itself, the Court should defer to the Commission's own interpretation of it. The respondent submits that the appropriate standard of review is patent unreasonableness citing Adams v. Canada (Attorney General), 2002 FCT 80, [2002] F.C.J. No. 98 (QL) (T.D.).
[7] In my view, the Commission was required to interpret and apply both the Public Service Employment Act and the Part-time Work Exclusion Order. I agree with Mr. Chowdhury that the standard of correctness should apply to the Commission's interpretation of statutes: Boucher, above. I also agree with the respondent that the Commission deserves greater deference in respect of the Order. Given that nothing turns on it here, I will simply apply a standard of correctness to both aspects of the Commission's decision.
B. Did the Commission err in its interpretation of the Public Service Employment Act or the Part-time Work Exclusion Order?
[8] The Commission endorsed the Board's interpretation of both the Act and the Order. In respect of the Act, the Board found that subsection 2(1) defines a "closed competition" as one that is limited to persons employed in the Public Service, and defines an "employee" as a person who is employed in a part of the Public Service over which the Commission has authority. The Order excludes from the Commission's authority persons who ordinarily work a third or less of a normal work week. The Board held that the combined effect of the two instruments was to render part-time workers ineligible to participate in closed competitions. Further, it determined that Mr. Chowdhury "ordinarily" worked part-time as that term was defined in the Order and, therefore, was ineligible to compete for the position at CIC.
[9] Mr. Chowdhury argues that the Board and, in turn, the Commission interpreted the Act wrongly. To repeat, the Act says that only "persons employed in the Public Service" can participate in closed competitions. It does not say that closed competitions are only open to "employees" of the Public Service. Yet, the Board relied on the Act's definition of "employee" to find that part-time workers cannot participate in closed competitions. Mr. Chowdhury suggests that as a "person employed in the Public Service", he should have been considered eligible to compete in a closed competition even though he was only employed part-time. I disagree with this submission. The Commission clearly had the power to exclude certain persons from the Act entirely (s. 41(1)). It decided, by way of the Order, to exclude part-time workers, as it was entitled to do. This really renders superfluous any further arguments about the interpretation of the Act. The Commission's conclusion on this issue was clearly correct.
[10] Mr. Chowdhury also argues that he should not have been found to be a "person not ordinarily required" to work more than one-third of a normal work week. In fact, he was often asked to work longer hours.
[11] However, I note that Mr. Chowdhury was asked to work extra hours during a six-month period between April and September 1999, and occasionally during 2000 and 2001. Ordinarily, he worked 12.5 hours a week or less. The Part-time Worker Agreements that he signed stated that he should not work more than 12.5 hours a week, that he was not a Public Servant and was not eligible for closed competitions. In my view, it was clear that Mr. Chowdhury ordinarily worked part-time and was not eligible to compete in closed competitions. Again, the Commission's decision was correct.
C. Were the written reasons of the Board of Inquiry adequate?
[12] The Board gave detailed written reasons. However, Mr. Chowdhury argues that the reasons are deficient because they failed to address his argument that he should have been considered a person employed in the Public Service and, therefore, eligible to compete in closed competitions.
[13] The Board set out Mr. Chowdhury's argument, but its conclusion did not respond to it explicitly. In my view, the Board's reasons were adequate in that they set out a clear and coherent explanation for its conclusion.
[14] Accordingly, I must dismiss this application for judicial review.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed.
"James W. O'Reilly"
J.F.C.
| Public Service Employment Act, R.S.C. 1985, c. P-33
2. (1) In this Act, "closed competition" « concours interne » "closed competition" means a competition that is open only to persons employed in the Public Service;
Exclusion of persons and positions 41. (1) In any case where the Commission decides that it is neither practicable nor in the best interests of the Public Service to apply this Act or any of its provisions to any position or person or class of positions or persons, the Commission may, with the approval of the Governor in Council, exclude that position, person or class in whole or in part from the operation of this Act.
|
|
Loi sur l'emploi dans la fonction publique, L.R.C. 1985, ch. P-33
2. (1) Les définitions qui suivent s'appliquent à la présente loi. « concours interne » "closed competition" « concours interne » Concours réservé aux personnes employées dans la fonction publique.
Exemptions 41. (1) Avec l'approbation du gouverneur en conseil, la Commission peut exempter un poste, une personne ou une catégorie de postes ou de personnes de l'application de tout ou partie de la présente loi, si elle estime pareille application difficilement réalisable et contraire aux intérêts de la fonction publique.
|
|
|
|
|
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2127-01
STYLE OF CAUSE: ABUBAKAR CHOWDHURY v.THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 29, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr. Justice O'Reilly
APPEARANCES:
Sheila Cuthbertson FOR THE APPLICANT
James Gorham FOR THE RESPONDENT
SOLICITORS OF RECORD:
SHEILA CUTHBERTSON FOR THE APPLICANT
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada