Federal Court Decisions

     T-2373-95

BETWEEN:

     ALICE McAULIFFE,

     Applicant,

     - and -

     THE ATTORNEY GENERAL OF CANADA,

     Respondent.

     REASONS FOR ORDER

DUBÉ J:

     This application is for an order setting aside the decision of the Public Service Commission ("the Commission") rendered on October 6, 1995, declining to implement the recommendations of a Board of Inquiry concerning competition 91-DND-KGN-OC-52.

1. The Facts

     In December 1991, the Department of National Defence ("the Department") identified vacancies for Kitchen Helper positions at the Department's premises in Kingston, Ontario. A total of 90 candidates were assessed. In July 1992, several complaints were made to the Commission regarding the way in which candidates had been assessed. For example, marks had been erased or changed; marks awarded for the ability to communicate were not consistent for all candidates; references were not contacted for the assessment of personal suitability, and some marks awarded for personal suitability and abilities could not be substantiated. Some 23 complaints were made.

     In October 1992, a Commission investigator conducted an on-site investigation and found a number of irregularities. In spite of these problems, three eligibility lists were established as a result of the competition, one dated August 13, 1992, a second one dated October 19, 1992, and a third one on December 16, 1992.

     The Department conceded that errors had been made in the marking of candidates and it agreed to appoint an impartial, experienced Selection Board to look into the matter. A second assessment of candidates was undertaken and completed in September 1994 and, as a result, it was determined that, of the 24 individuals that had been appointed, 22 were still qualified but they were not necessarily the best qualified candidates. The other two were found to be unqualified.

     In October 1994, the Commission asked the Department to establish a new eligibility list but in November 1994, the Commission investigator recommended that a Board of Inquiry be established to review the original 24 appointments and accordingly in February 1995, the Commission appointed Helen Barkley to act as a Board of Inquiry.

     Ms. Barkley proceeded with her inquiry and invited all interested parties to present evidence and make representations. The hearing was conducted in April 1995. On June 15, 1995, she issued a report in which she found serious flaws in the assessment of candidates. She found, inter alia, that the Department had seriously contravened the terms and conditions of its delegated staffing authority. She issued, among other recommendations, the following two:

(a)      "that the Commission designate one of its employees to expeditiously assess all candidates who are still interested in positions of Kitchen Helper at CFB Kingston";

(b)      "based on the results of the completely new assessment, the top 24 candidates be placed or remain in positions of Kitchen Helper at CFB Kingston. I recommend that the appointments of those persons who are not among the 24 best qualified as a result of the new selection process be revoked."

     After receiving the Board of Inquiry recommendations, Commission representatives reviewed the report and made their own recommendations as follows:

(a)      that it should confirm the appointments of those who had been appointed after having qualified twice and ranked in the top 24 in both assessment processes;

(b)      that it should not question the qualifications of these persons as they have qualified twice in the top 24, they had acquired experience during the last two years on their job, and the Department was satisfied with their performance;

(c)      that the Department should be asked to conduct a new assessment of those persons who had qualified only once, those who may have qualified twice but did not rank in the top 24 on the second assessment, including Mr. Loiselle, Ms Soroka and Ms Thompson.

     By letter dated October 6, 1995, the Commission adopted the in-house recommendations and released its final decision respecting the matter. It confirmed that its proposed course of action was different from that recommended by the Board of Inquiry on the following ground:

"The rationale to confirm certain appointments was based on our view that we should not question the qualifications of those candidates who had qualified twice, both times ranking among the top 24. The fact that these candidates have acquired experience during the last two years on the job and the fact that the department is satisfied with their performance were also considerations."

     The complainants who appeared before the Board of Inquiry were not advised that the Commission might make such a decision and no representative of the complainants was involved in the Commission's decision. Consequently, the complainants were not given the opportunity to make submissions to the Commission.

2- The issues

     The applicant attacks the decision of the Commission on two grounds: first, the Commission did not follow the rules of procedural fairness and second, the merit principle was not observed.

3- Procedural fairness

     It is trite law that an administrative tribunal or a decision-maker is required to comply with the rules of procedural fairness. It is the duty of the decision-maker to inform interested parties of the case against them and to afford them a genuine opportunity to respond by making all relevant representations in relation thereto. In this regard, Sopinka J., of the Supreme Court of Canada, said as follows¹, at p. 902:

. . . I agree with the reasons of Marceau J. that the Commission had a duty to inform the parties of the substance of the evidence obtained by the investigator and which was put before the Commission. Furthermore, it was incumbent on the Commission to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto.

     That decision was followed by the Federal Court of Appeal in Mercier v. Canada² wherein Décary J.A. noted along with Lord Denning that the requirements of procedural fairness vary with the nature of the investigation and the consequences upon the interested parties. He said, at p. 12:

As Lord Denning noted, that which procedural fairness requires depend on the nature of the investigation and the consequences which it may have on persons affected by it. Fundamentally, there must be assurance in each case that the individual affected has been informed of the substance of the evidence on which the tribunal intends to rely in making its decision and that the individual has been offered an opportunity to reply to that evidence and to present all relevant arguments relating thereto. Cory J. recently recalled the applicable principles, as follows:3

This Court has repeatedly recognized the general common law principle that there is "a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual" (see Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653). It follows that the Deputy Minister was under a duty to comply with the principles of procedural fairness in the context of security clearance decision-making. Generally speaking, fairness requires that a party must have an adequate opportunity of knowing the case that must be met, of answering it and putting forward the party's own position.

     In the present context I agree with the applicant that the Commission did not observe basic principles of procedural fairness when it failed to acquaint interested parties with the case they would have to meet and to provide them with an opportunity to respond before the Commission decided to disregard the recommendations of the Board of Inquiry. That Board found that the competition was flawed and made recommendations which were satisfactory to the applicant. However, after some in-house consultations, the Commission decided on its own to act differently. It confirmed the appointments of those candidates who had qualified twice, under admittedly flawed selection processes, and considered their experience on the job as a valid criterion for their selection.

4- The merit principle

     In accordance with the provisions of section 10 of the Public Service Employment Act ("the Act")⁴, appointments to the Public Service must be based on selection according to merit. The merit must be determined by the Commission at the request of the Department concerned. The merit principle is the central building block upon which the selection system of the Public Service must be based. It calls for the selection of the best qualified candidates. As stated by Pratte J.A., of the Federal Court of Appeal, in Attorney General of Canada v. Greaves⁵, at p. 810:

. . . The requirements of the merit principle are, in my view, always the same. They do not vary with the method of selection chosen. That principle requires that the selection be made "according to merit", which means, "that the best persons possible will be found for the various positions in the Public Service . . ."

     In other words, it is not sufficient that the candidates be qualified. They must be the best qualified for the positions. The candidates selected under the original flawed competitions in the instant matter have undoubtedly gained some experience by being on the job for the past two years. That experience may stand to their benefit in a new competition, but it is manifestly unfair to the other candidates for the Commission to give the experienced candidates its blessing on the ground that they have already benefited from a flawed selection system, at the expense of other candidates who might possibly be better qualified.

     In another Federal Court of Appeal decision, Canada v. Pearce⁶, Mahoney J.A. said that if a flawed selection results in an assignment which persists for so long that it becomes an appointment, that also may offend the merit principle. He said as follows, at p. 280:

That is not, in my respectful opinion, authority, as the applicant has argued, for the proposition that the only circumstance associated with an assignment which can offend the merit principle is if it persists for so long as to become an appointment. It seems to me that other circumstances taken together with an assignment may equally offend the merit principle. The merit principle requires the appointment of the candidate best qualified to fill a position. That is not necessarily the candidate best informed about it.

     Thus, the merit principle may be compromised where a candidate in a selection process receives an unfair advantage due to his assignment to the position in question prior to a valid selection being made. Familiarity with the actual duties of a position may provide the candidates in place with an unfair advantage with the risk that a selection process may not result in a selection according to merit.

     Thus, through the implementation of its corrective action in the instant matter, the Commission failed to select according to merit. The corrective action largely confirmed the selections made on the basis of two demonstrably flawed assessments, as determined by two separate Boards of Inquiry. Unfortunately, the results of these flawed assessments cannot be so combined as to achieve the ultimate goal of selection according to merit. Those presently occupying the positions pursuant to flawed assessments ought not to be retained merely because of their satisfactory performance. Their actual performance only shows that they qualify for the job. It does not indicate that they are the best qualified in accordance with the merit principle.

     The only way out, in my view, is for the Commission to undertake a fresh assessment process which will account for, and compare, the qualifications of all available candidates (including those presently occupying the positions) and to insure that the specific flaws clearly identified by the Board of Inquiry are not repeated.

     Consequently, the Commission's decision is quashed and the matter is referred back to it with the direction that it act promptly in accordance with these reasons.

O T T A W A

February 12, 1997

    

     Judge

__________________

¹      S.E.P.Q.A. v. Canada (C.H.R.C.), [1989] 2 S.C.R. 879.

²      [1994] 3 F.C. 3.

³      Thompson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, at p. 402.

⁴      R.S.C. 1985, c. P-33.

⁵      [1982] 1 F.C. 806.

⁶      [1989] 3 F.C. 272.