Executive Summary: Key legal and evidentiary issues

• Applicant was screened out of a CRA job competition for not meeting the required 24 cumulative months of experience, as 8 of his 25 months at the AU-03 level were spent on parental leave

• CRA's accommodation effort involved reviewing the Applicant's prior external employment against Veteran Hiring Act experience requirements, which his previous role did not satisfy

• Applicant argued the Decision was contrary to CRA policy, citing Patterson v. Canada (Revenue Agency), and discriminatory based on family status, citing Fraser v. Canada (Attorney General)

• Internal CRA emails acknowledged that protected leave "shouldn't be used against the candidate to screen them out," yet the Applicant was ultimately screened out

• The Court applied the reasonableness standard of review per Canada (Minister of Citizenship and Immigration) v. Vavilov rather than the correctness standard applied in Patterson

• Discrimination was not formally raised during the Individual Feedback process but only in an email sent on May 21, 2025, after the Decision was delivered on May 2, 2025

Background and facts of the case

Hamza Nasir, a CPA-certified professional, began employment with the Canada Revenue Agency in March 2023 as an AU-03 Tax Avoidance Auditor in Global High Wealth. On March 17, 2025, the CRA issued a Notice of Job Opportunity for AU-04 positions in the High Complexity Audit Tax Services Office, advertised for Western Canada. The posting required a minimum of 24 cumulative months of experience within the last four years administering the Income Tax Act while working at an AU-03 or higher level position with the CRA in one of four program areas: Domestic Tax, Offshore, International Tax, and Tax Planning/Tax Avoidance.

Nasir applied on March 19, 2025. At the time of his application, he had been employed by the CRA at the AU-03 level in one of the four identified program areas for 25 months. However, he was on parental leave for 8 of those 25 months.

The screening decision and accommodation efforts

On April 15, 2025, Mr. Anthony De Guzman, a Human Resource Specialist Advisor with the CRA, emailed Ms. Brenda Jang about the Applicant's job application, noting that since it was protected leave, "it shouldn't be used against the candidate to screen them out," and the board was exploring options including whether they could "backdate" the candidate's experience for 8 months. On April 23, 2025, Mr. Nils Erzinger replied to Mr. De Guzman with a detailed review. The CRA attempted to accommodate the protected leave by considering the Applicant's external experience in the 8 months preceding March 2023 and comparing it with the experience requirement listed on the Notice of Job Opportunity for those qualifying under the Veteran Hiring Act. The VHA experience requirements included working in a senior-level position and working with large or complex corporations in public practice, industry, or other non-CRA government bodies performing functions such as the preparation of Canadian corporate tax returns, including providing tax advice and interpretations related to complex issues under the Canadian Income Tax Act. The Applicant's prior experience from May 2021 to March 2023 was as a senior internal controls auditor with Statistics Canada, which did not meet the VHA experience requirement. On April 23, 2025, the CRA advised the Applicant that he was being screened out of the job competition because he did not meet the 24-month experience requirement.

The Individual Feedback process

On April 25, 2025, Nasir submitted a formal request for Individual Feedback on RC Form 136, a recourse measure available under section 5.2.1 of the Policy on the Staffing Program. Individual Feedback is available for a person to object to arbitrary treatment. He also sent a copy of his Letter of Offer showing his start date to be March 13, 2023, "to showcase me meeting the 24 months experience qualification." On May 2, 2025, the CRA delivered its Decision, confirming the initial decision to screen out the Applicant from the job competition. The Decision explained the experience shortfall, described the accommodation efforts through the VHA external experience assessment, and concluded that the screening criteria was applied appropriately and there was no arbitrary treatment. The Applicant sent an email on May 21, 2025, to the CRA saying that the failure to recognize his time on parental leave as part of his experience was discriminatory. There was no response to the email.

The policy framework

The CRA's Procedures for Staffing defines "arbitrary" as conduct done "in an unreasonable manner, done capriciously; not done or acting according to reason or judgment; not based on rationale or established policy; not the result of a reasoning applied to relevant considerations; discriminatory, i.e. as listed as the prohibited grounds of discrimination in the Canadian Human Rights Act." Under the Staffing Recourse Program, Individual Feedback is a review of an employee's concerns of arbitrary treatment and must be completed before requesting either DR or ITPR if available. The review includes a formal discussion between an employee and a manager. Individual Feedback was the lowest level of recourse and the only recourse available to the Applicant in respect of the screening decision.

The Applicant's arguments before the Federal Court

Nasir sought judicial review, arguing the CRA's Decision was contrary to its policy and to the decision in Patterson v. Canada (Revenue Agency), 401 F.T.R. 211. He also submitted that the Decision was discriminatory since it was based on family status, contrary to the decision of the Supreme Court of Canada in Fraser v. Canada (Attorney General), [2020] 3 S.C.R. 113. The Applicant further submitted that the Decision was arbitrary since it was based on discrimination. He also argued that the reasoning in the Decision was not transparent or justified, and that the reasons did not explain how the "accommodation" provided was appropriate or how the Decision was not discriminatory. The Applicant contended that he had shown a prima facie case of discrimination, and the burden now lay on the CRA to show that it tried to accommodate him to the point of undue hardship.

The Respondent's position

The Attorney General of Canada submitted that the CRA reasonably accommodated the Applicant. The Respondent argued that the decision in Patterson was of limited application since it was decided under a different standard of review, that is correctness. The Respondent argued that the appropriate authority in this case was the decision of the Federal Court of Appeal in Cooper v. Canada (Attorney General), 2024 FCA 159, submitting that when a prima facie case of discrimination is established, an employer must show that it "reasonably" accommodated the employee. The Respondent also noted that in Patterson, the Court acknowledged that it should not decide how the CRA should accommodate an employee who takes parental leave and subsequently applies for a position with an experiential requirement. The Respondent further submitted that an administrative decision-maker is not expected to write decisions in the same manner and style as courts and maintained that the Decision clearly explained the basis of the accommodation provided to the Applicant and that there was no basis for judicial intervention.

The Court's analysis and ruling

Madam Justice Heneghan of the Federal Court applied the reasonableness standard of review following the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 S.C.R. 653, asking whether the Decision bore the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it was justified in relation to the relevant factual and legal constraints. The Court found that the CRA's approach to accommodation — reviewing the Applicant's prior external experience to offset the parental leave period — was a reasonable means of accommodation, showing that the CRA was alert to the nature of parental leave as "protected" leave. The Court noted that in Patterson, the Court acknowledged recourse to alternate means of assessing an experience requirement, and found the screening decision was reasonable. Citing Kirkpatrick v. Canada (Attorney General), 2019 FC 196 at paragraph 26, the Court agreed that the Applicant did not have the right to say "how" he would be accommodated. In Casper v. Canada (Attorney General), 2024 FCA 159, the Federal Court of Appeal found that when reasonable accommodation is made, it is not necessary for an employer to show undue hardship. The Court also referred to Canada (Attorney General) v. Duval, 2019 FCA 290, where the Federal Court of Appeal stated that what is required is reasonable but not perfect accommodation. The Court agreed that the decision in Patterson had limited application in this case because, although the facts were similar, that case was decided in a different legal context against a "correctness" standard of review; however, the Court found it relevant insofar as the Court recognized at paragraph 49 that it cannot tell an employer how to assess experiential requirements. The Court noted that the Applicant did not raise discrimination in his request for Individual Feedback but only in an email sent on May 21, 2025, several days after the Decision was made, and therefore the Applicant could not complain that the CRA failed to respond to that issue. However, it appeared that the CRA was aware of a potential discrimination issue when it addressed "accommodation" in its Decision.

The Federal Court dismissed the application for judicial review, finding the Decision adequately explained the basis upon which it was made, addressed the accommodation of protected leave relative to the experience requirement, and addressed "arbitrary" treatment. The Court noted that as stated in Vavilov at paragraph 92, an administrative decision-maker is not expected to write with the same detail as a judge, and that the Decision met the requirements of the applicable standard of review, that is reasonableness, with no basis for judicial intervention. Pursuant to the agreement between the parties, each side bears their own costs, and no monetary amount was awarded or ordered in the proceedings.