Executive Summary: Key Legal and Evidentiary Issues

• Prematurity of the judicial review application (T-35-25) due to the applicant's failure to exhaust administrative remedies under the Public Service Employment Act before approaching the Federal Court

• The Public Service Commission's discretionary decision not to investigate the 2021 Recruitment Process was challenged for alleged unreasonableness and procedural unfairness (T-164-25)

• Admissibility of affidavit evidence was contested, with portions ruled inadmissible for containing material not before the decision maker or falling outside recognized exceptions

• Allegations of disability accommodation failures and employment equity violations lacked sufficient evidentiary support to establish a reviewable error

• Requests for disclosure orders, statutory declarations, and systemic corrective actions were deemed improper relief in the context of both judicial review applications

• Inclusion in a qualified candidate pool does not guarantee an offer of employment, and organizations retain discretion over staffing decisions under the PSEA

The facts of the case

Munchang Choi, a self-represented applicant, participated in two recruitment processes at the Department of Fisheries and Oceans (DFO). The first, advertised in 2021 (process 21-DFO-WCCG-EA-CCG-323941), was an external appointment process for a TI-06/TI-07 inspector position. Mr. Choi participated in the process and, in October 2022, he was added to a pool of qualified TI-06/TI-07 candidates and told he would be advised if he was selected for the next phase of the process. In May 2023, Mr. Choi was told that TI-06 positions were no longer available but this did not change his status in the pool because DFO and other government departments could use the pool to staff positions that are similar to TI-06, or TI-07 positions. The second, advertised in 2024 (process 24-DFO-NCR-EA-CCG-615679), was for a Technical Inspector and Investigator position, where Mr. Choi was one of five candidates selected for inclusion in a pool of qualified candidates. In December 2024, one of the candidates in the pool was selected for a position. An internal DFO memorandum explained why this candidate was selected over others; among other things, the candidate had the highest overall score on interviews and was tied for the highest score in the assessment of their achievement record and references. Mr. Choi was not offered a position in either process.

Mr. Choi's complaints and allegations

Dissatisfied with the outcomes, Mr. Choi took two courses of action. Regarding the 2024 process, he commenced an application for judicial review (T-35-25) later in December 2024, alleging that: the staffing decision was procedurally unfair in that DFO withheld scoring records and relied on undisclosed hiring criteria that deprived him of meaningful participation; DFO failed to adequately accommodate his disability; the staffing decision breached the merit principle under the PSEA by relying on subjective and undisclosed assessment criteria rather than merit-based criteria; and there was no assurance that DFO met its obligations under the Employment Equity Act, SC 1995, c 44, because the evaluation was opaque and the scoring was not disclosed. He asked the Court to quash the hiring decision and order DFO to re-do the 2024 Recruitment Process with full disclosure of evaluation records, elimination of undisclosed criteria, and meaningful accommodations.

Regarding the 2021 process, Mr. Choi submitted a complaint to the Public Service Commission on December 6, 2024, alleging significant procedural irregularities. He cited breaches of transparency contrary to PSEA section 48, in that there was no substantive communication or timeline for over two years and TI-06 positions had been reclassified without sufficient explanation or clarity. He also cited violations of procedural fairness contrary to PSEA section 30, and a failure to accommodate equity-seeking candidates contrary to PSEA section 31(3), in view of protections afforded to him under the Employment Equity Act and the PSEA as a visible minority and a person with disabilities. The Commission reviewed the complaint and, on December 9, 2024, decided that the concerns Mr. Choi raised were not sufficient to open an investigation, noting that the PSEA does not require hiring organizations to provide feedback to candidates in external appointment processes, reclassification decisions are not within the Commission's mandate, and organizations have the discretion to determine whether they are able to make an offer of employment at the end of an appointment process. The Commission added that being included in a hiring pool or "inventory" does not mean that a position is available or that a candidate will be offered a position. Mr. Choi asked the Commission to reconsider on the same day, and the Commission responded on December 13, 2024, repeating its position and noting that PSEA amendments extending its investigative powers to concerns about bias and barriers to equity-seeking groups did not apply to the 2021 Recruitment Process, which had commenced before the amendments came into force. Mr. Choi repeated his request for reconsideration again on December 13, and the Commission's December 16, 2024 response concluded that it did not have the mandate or sufficient information to open an investigation. Mr. Choi then filed a second judicial review application (T-164-25) challenging the Commission's decision.

The prematurity issue in T-35-25

The Federal Court, presided over by Madam Justice Pallotta, found that the application concerning the 2024 Recruitment Process was premature. The 2024 Recruitment Process was an "external appointment process," meaning it was not limited to public service employees. Section 66 of the PSEA allows the Commission to investigate an external appointment process and take corrective action if it is satisfied that an appointment was not based on merit, or if there was an error, an omission, or improper conduct affecting the selection of the person appointed or proposed for appointment. Mr. Choi did not ask the Commission to investigate the 2024 Recruitment Process. Citing CB Powell Limited v Canada (Border Services Agency), 2010 FCA 61, the Court held that the application was premature because Mr. Choi commenced it before exhausting all adequate remedial recourse in the administrative process. Absent exceptional circumstances, parties cannot proceed to the court system until the applicable administrative process has run its course. The additional requests for an order requiring DFO to disclose information allegedly withheld from the ATIP response, a declaration that DFO's actions violated his rights under the Canadian Human Rights Act, the Employment Equity Act, and the Access to Information Act, and an order requiring DFO to implement corrective actions were also found to be improper in the context of this proceeding.

The Commission's decision and the reasonableness review in T-164-25

For the 2021 Recruitment Process challenge, the Court confirmed that the only reviewable decision was the Commission's refusal to investigate, not DFO's underlying staffing actions, citing Lessard-Gauvin v Canada (Attorney General), 2016 FC 227 at para 10. Applying the reasonableness framework from Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, the Court assessed whether the Commission's reasoning was transparent, intelligible, and justified. The Court agreed with the respondent that the Commission reasonably decided not to open an investigation on the basis that the information Mr. Choi provided was insufficient to raise a possible error, omission, or improper conduct in the 2021 Recruitment Process, particularly since some of his concerns exceeded the Commission's investigatory powers under the PSEA. The Commission had found that: the PSEA does not require hiring organizations to provide feedback to candidates in external appointment processes; the decision to reclassify the TI-06 positions fell outside the Commission's mandate; the 2021 Recruitment Process was for a hiring pool or inventory, and organizations have the discretion to decide whether to make an offer of employment; and qualifying for inclusion in a pool or inventory does not mean that a position is available or that a candidate will be offered a position. The Court found Mr. Choi's submissions were largely bare assertions and did not establish a reviewable error with the Commission's decision.

Evidentiary and procedural fairness considerations

The respondent asked the Court to strike or give no weight to portions of Mr. Choi's January 27, 2025 affidavit. The Court ruled section 3 and Exhibit C-2 inadmissible because they contained evidence not before the Commission and did not fall within a recognized exception to the general rule that documents not before the decision maker are inadmissible on judicial review, citing Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 19. The email in Exhibit C-1 was found to be duplicated in Exhibit C-3, and since the respondent did not object to Exhibit C-3, the Court found it would serve no purpose to rule that part of Exhibit C-1 was inadmissible. The Court also declined to rule section 4, paragraph 6.2, and section 7 of the affidavit inadmissible, as these parts largely repeated arguments Mr. Choi made in his correspondence to the Commission or in his memorandum of fact and law, and there was no prejudice to the respondent. On procedural fairness, the Court found that Mr. Choi had a fair opportunity to make his case for an investigation. The Commission remained open to consider Mr. Choi's subsequent communications and whether there was new information to warrant an investigation, and it provided meaningful responses each time. While Mr. Choi alleged he was denied adequate accommodation as a visible minority and a person with disabilities, he had not shown that he made repeated requests for accommodation that were ignored or inadequately addressed.

The ruling and overall outcome

The Federal Court dismissed both applications for judicial review. T-35-25 was dismissed as premature for failure to exhaust administrative remedies under the PSEA, and T-164-25 was dismissed because Mr. Choi had not established that the Commission's decision was unreasonable or procedurally unfair, nor had he established a reviewable error that warranted the Court's intervention. The parties had agreed that the successful party should be awarded $500 in costs for each proceeding. The Attorney General of Canada, as the successful respondent in both matters, was awarded costs totaling $1,000.