Date: 20020419
Docket: T-584-01
Neutral Citation: 2002 FCT 454
BETWEEN:
PATRICIA BARBEAU
Applicant
and
ATTORNEY GENERAL OF CANADA
T. MARWITZ and C. OLENIUK
Respondents
[1] This is an application for judicial review brought by the applicant against the decision of Public Service Commission Appeal Board [hereinafter referred to as the "Appeal Board"] dated February 23, 2001 which was rendered in response to an appeal filed by the applicant pursuant to section 21 of the Public Service Employment Act [hereinafter referred to as the "Act"].
FACTS
[2] On June 15, 2000, Human Resources Development Canada (HRDC) gave notice of its intention to run a closed competition for a specified term for the position of Human Resources Generalist & Supporting People Coordinator (PE-02) to all employees working within the HRDC's Kingston-Pembroke Management Area (KPMA).
[3] Rick Mallory, the Service Delivery Manager for the Kingston Human Resources Canada Centre (HRCC), gave notice of the competition by way of an e-mail message. The Statement of Qualifications and a Work Description were attached to the e-mail message.
[4] Rick Mallory and Karen Gunn composed the Statement of Qualifications for the PE-02 Position and were also members of the Selection Board for this particular competition.
[5] A second e-mail was sent out by Rick Mallory advising of a corrected Statement of Qualifications containing a differently worded experience criteria selection. This correction had no bearing on the competition and is not presently at issue.
[6] The job posting stated that only those potential candidates who met the minimum education and experience criteria would be called for an interview.
[7] Approximately ten (10) days prior to the closing date for applications, a potential candidate, Colleen Kelley, sent an e-mail enquiry to two (2) members of the Selection Board, Rick Mallory and Karen Gunn, requesting clarification of the minimum experience requirement.
[8] In particular, the Selection Board informed Colleen Kelley that candidates' experience need not relate to each of the listed elements and need not have been gained inside HRDC.
[9] This change was never officially communicated to any of the other candidates, but was solely communicated to Colleen Kelley in response to her enquiry.
[10] In the end, only three (3) candidates applied for the PE-02 Position: the applicant and the respondents Marwitz and Oleniuk. The Selection Board found that all three (3) met the experience qualifications and admitted them to the competition to be assessed against the criteria of ‘knowledge', ‘abilities', and ‘personal suitability'.
[11] The applicant did not meet the ‘personal suitability' criterion and therefore did not obtain the position.
[12] The applicant appealed to the Appeal Board in accordance with section 21 of the Act on July 6, 2000.
[13] The applicant made several allegations before the Appeal Board. At issue in this application however, is the allegation that the Selection Board applied a more relaxed experience requirement for qualification to the PE-02 Position than was specified by the Statement of Qualifications.
[14] Through this application, the applicant maintains that Chairman J.R. Ojalammi of the Appeal Board [hereinafter referred to as the "Chairman"] erred in law in rendering his decision.
RELEVANT LEGISLATION
[15] Subsection 10(1) of the Act enshrines the merit principle which requires that the best persons possible be selected for appointment in the Federal Public Service:
| 10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service. |
10. (1) Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission, et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique. |
|
[16] Section 21 of the Act provides for the possibility of an appeal against appointments or proposed appointments in the Federal Public Service:
| 21. (1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard. |
21. (1) Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre. |
|
ISSUE
[17] Did the Chairman err in law in failing to determine whether the Selection Board's interpretation of the experience criteria may have adversely affected the principle of selection according to merit?
ANALYSIS
The Standard of review
[18] The Federal Court of Appeal has confirmed that the Appeal Board does not possess sufficient expertise in interpreting the Act so as to warrant the deference of the Court except in particular circumstances. Consequently, errors of law, errors of jurisdiction, and the requirements of the merit principle which raise an issue of law, are all subject to review on the standard of correctness. This has been confirmed by the following cases:
[19] In Boucher v. Canada (Attorney General), [1998] F.C.J. No. 1557 (F.C.T.D.), McKeown J. held:
[para 7] There were many submissions made with respect to the standard of review applicable in this case. In my view, the standard with respect to findings of fact is at the high end of the spectrum--that is, such findings should be accorded considerable deference by the reviewing court. Conversely, findings with respect to errors of law are at the lower end of the spectrum and are to be treated less deferentially.
[20] This was later confirmed by the Federal Court of Appeal in Boucher v. Canada (Attorney General), [2000] F.C.J. No. 86 (F.C.A.).
[21] The applicable standard of review in a section 21 appeal was also discussed in Buttar v. Canada (Attorney General), [2000] F.C.J. No. 437 (F.C.A.) where Décary, Sharlow and Malone JJ. held:
[para 17] Dr. Buttar sought judicial review of this decision. This raises a question of law as to the requirements of the merit principle and the standard of review is correctness: Boucher v. Attorney General of Canada, A-699-98, January 20, 2000; [2000] F.C.J. No. 86.
Application to the case at bar
[22] The present case involves the interpretation made of the experience requirement in the Statement of Qualifications. This raises an issue of mixed fact and law. It is the respondent's position, which can be found at paragraph 32 of the Application Record of the Respondent, that:
Findings of fact made by an appeal board are entitled to a high degree of deference, except where such findings are erroneous as having been made in a perverse or capricious manner or without regard for the evidence.
[23] In support of this position, the respondent makes reference to the case of Maassen et al. v. Canada (Attorney General) et al., [2001] F.C.J. No. 961 (F.C.T.D.) where McKeown J. held:
[para 14] [...] In my view, this is a finding of fact to which I should give some deference. The standard of review of Appeal Board decision is correctness with respect to issues of law such as interpretation of PSEA. See: Boucher v. Canada (Attorney General), [2000] F.C.J. No. 86 (F.C.A.). However, findings of fact made by appeal boards are entitled to a higher degree of deference, except where such findings are made without regard to the evidence before the Appeal Board. See: Canada (Attorney General) v. Rogerville, (1996) 117 F.T.R. 53 (T.D.).
[24] The respondent also refers to the case of Lai v. Canada (Attorney General) et al., [2001] F.C.J. No. 1088 (F.C.T.D.), where Blanchard J. held:
[para 14] On errors of fact, the standard of review is set out in section 18.1(4)(d) of the Federal Court Act. This court may grant relief if it is satisfied that the Board based its decision or order on an erroneous finding of fact that is made in a perverse or capricious manner or without regard to the material before it.
[25] Therefore, it would seem that the applicable standard of review in the case at bar is that of reasonableness simpliciter.
Section 21 of the Act
[26] Section 21 of the Act provides for the right to appeal against appointments or proposed appointments in the Federal Public Service arising as a result of a closed competition. It is designed in part to ensure that unsuccessful candidates have the possibility to challenge whether the merit principle enshrined in subsection 10(1) of the Act is followed in respect of selections for appointment in the Federal Public Service.
[27] Appointments from within the Public Service must be based on selection according to merit. In Bambrough v. Canada (Public Service Commission Appeal Board), [1976] 2 F.C. 109 (F.C.A.) [hereinafter referred to as Bambrough], the Federal Court of Appeal held:
[para 10] The Public Service Commission has the statutory power and duty to appoint qualified persons to positions in the Public Service on the basis of merit. Selection according to merit is the dominant objective and consideration of the Public Service Employment Act and the essential criterion by which the exercise of powers under the Act is to be judged. Fairness may be regarded as an implied requirement of the Act in so far as it is necessarily related to selection according to merit, but appointments should not be set aside for alleged procedural irregularities when there is no reason to believe that the selection process has not been based on merit.
The Statement of Qualifications
[28] The original Statement of Qualifications was sent out on June 15, 2000:
Experience in providing advice, guidance, and service to HRCC directors, the management team and other staff related to human resource management.
[29] The Statement of Qualifications was then corrected and sent out again on June 16, 2000:
Experience in providing advice, guidance, and service to HRCC directors, the management team and staff related to human resource management, learning, staff development and staff training.
[30] The establishment of qualifications for a position is the exclusive prerogative of the department which proposes to create and fill a position. The Public Service Commission has no role to play in the establishment of those qualifications. This proposition has been confirmed in Bambrough.
Interpretation of the Statement of Qualifications
[31] I find that the wording of the Statement of Qualifications implies that experience must be gained from within HRDC: "Experience in providing advice, guidance, and service to HRCC directors, the management team and staff [...]" (my emphasis).
[32] However, in the series of e-mails exchanged between Rick Mallory, Karen Gunn and Coleen Kelley, a different interpretation of the experience requirement is made. Both Rick Mallory and Karen Gunn informed Colleen Kelley that experience can come from outside of HRDC. In the e-mail sent by Karen Gunn to Colleen Kelley, she wrote:
hi Colleen. Our feeling, when working on the SOQ for this position, was that anyone involved with preparing training, lesson plans, delivering training etc to staff, the management team or the director would meet the experience criteria. [...] And, this experience does not have to be HRDC specific.
(my emphasis)
[33] In addition, in the e-mail sent by Rick Mallory to Colleen Kelley, he wrote:
When Karen Gunn and I did the S of Q we kept the experience requirement as broad as possible, including "HR", but also "learning, staff development and staff training", so that it would "include" more people. [...]
Experience is not restricted to HRDC in any competitive process, the selection board will always look at any relevant experience.
(my emphasis)
[34] There is a serious discrepancy between the wording of the experience requirement as stated in the Statement of Qualifications and the interpretation made of it by Rick Mallory and Karen Gunn in their e-mails stating that experience gained outside HRDC would be acceptable.
[35] To this, the Appeal Board stated:
[...] Given that response and the fact that the activities specified in the experience requirement are rather generic in nature, applying the Brown judgment leads me to the conclusion that a candidate should not have been screened out of this competition only because the experience he/she had was not gained at HRDC. Simply stated, I cannot see any difference between the experience a candidate would have if it was gained at a department other than HRDC rather that at HRDC.
(my emphasis)
[36] The applicant alleges that information pertaining to the experience requirement being gained outside HRDC was not officially communicated to any of the candidates, aside from one and that this undermined the merit principle. I agree with the applicant's argument.
[37] It is my opinion that the discrepancy that was created between the wording of the Statement of Qualification and the interpretation made of it in the e-mail exchange, caused the competition process to become flawed from the outset.
Same individuals who composed the Statement of Qualifications are also members on the Selection Board
[38] In the case at bar, the individuals who composed the Statement of Qualifications also formed part of the Selection Board, namely Rick Mallory and Karen Gunn.
[39] This becomes apparent from the e-mails written by Rick Mallory and Karen Gunn to Colleen Kelley, which were produced above and can both be found at pages 68-69 of the Applicant's Application Record (Volume I of III). To illustrate, at page 68, Karen Gunn wrote:
Our feeling, when working on the SOQ for this position, was [...]
(my emphasis)
[40] And at page 69, Rick Mallory wrote:
[...] When Karen Gunn and I did the S of Q [...]
(my emphasis)
[41] The same individuals, Rick Mallory and Karen Gunn, were therefore involved in two (2) important and essential aspects of the competition process, specifically they composed the Statement of Qualifications and they formed part of the Selection Board.
[42] In an ideal world, different individuals would have drafted the Statement of Qualifications from those who formed members of the Selection Board. Since this is not the case in the present matter, the least one can expect is for the requirements written in the Statement of Qualifications to be applied and interpreted similarly by the very same individuals who composed it. This, however, was not the case. Rick Mallory and Karen Gunn provided Colleen Kelley with a very different interpretation than what was stated in the Statement of Qualifications thereby casting a shadow of doubt on the competition process.
The Selection Board
[43] A Selection Board is the instrument used by the Public Service Commission to perform its duty to select candidates on the basis of merit. Its role is to assess the candidates and choose the ones they feel are most qualified for the position on the basis of merit. A Selection Board must, after examining and considering the applications of the candidates, consider such further material and conduct such examinations, tests, interviews and investigations as it considers necessary or desirable, select the candidates who are qualified for the position and place their names on an eligibility list in order of merit and this in accordance with sections 16 and 17 of the Act. A Selection Board does not have the authority to establish qualifications for a position nor to change them, it may however elaborate on the requirements suggested by the original qualifications as per Bambrough.
[44] The applicant alleges that the Selection Board erred by improperly broadening the experience qualification and failing to communicate that change to potential candidates. In Canada (Attorney General) v. Asselin, [1999] F.C.J. No. 1572 (F.C.A.), the Federal Court of Appeal held:
[para 11] It appears, at first sight, that the power of review conferred by section 12.1, the parameters of which we described above, is a power that should be exercised by the Commission before a particular competition is completed. Counsel for the Commission emphasized to us that section 12.1 could be applied independently of the holding of a particular competition, since it allows a review of the qualifications established for "any ... class of positions". Even so, it still remains that in regard to a particular "position", it is inconceivable that the power of review would be exercised during the competition to the detriment of candidates who have already entered or those who were excluded or failed to apply owing to some qualification that the Commission now wished to review. Once it changes the ground rules along the way, the Commission should very definitely recommence the selection process or adjust it accordingly.
(my emphasis)
[45] I find that because the experience requirement stated in the Statement of Qualifications was interpreted differently by Rick Mallory and Karen Gunn in their e-mail exchange with Colleen Kelley, the entire competition process was tainted.
Interpretation made by the Selection Board
[46] The information communicated to Colleen Kelley, from the applicant's perspective, had the effect of excluding potential candidates from the competition. I am in agreement with the applicant on this point.
[47] This becomes further apparent by the admission made by Rick Mallory in his e-mail found at page 69 of the Applicant's Application Record (Volume I of III) which alerts to the fact that there was confusion in regards to the experience requirement as set out in the Statement of Qualifications:
P.S. Would you mind if I shared your questions and my answers with all staff?
[48] It is this confusion that led to a different interpretation of the words found in the Statement of Qualifications.
The Appeal Board
[49] It is well accepted that when an unsuccessful candidate exercises his or her right of appeal under section 21 of the Act, the central issue is not the protection of the appellant's rights, but rather the prevention of an appointment being made contrary to the merit principle. It is therefore the function of the Appeal Board to expose and correct errors in the application of standards and methods of assessment which have the effect of undermining the principle of selection according to merit.
[50] The Appeal Board in the present matter tried in good faith to correct a troubled situation. However, it is impossible to right a wrong that has occurred so early in the competition process.
[51] The Appeal Board found that the Statement of Qualifications was filled with redundancies and generalities which confirms the fact that it generated much confusion. For example, at page 7 of its decision, the Appeal Board wrote:
The wording of the experience requirement is also redundant when it refers to ‘directors' and ‘management'. A director is a manager and therefore management.
[52] And also at page 8 of its decision, the Appeal Board stated:
The redundancies in this phraseology are myriad. Learning and training, as used here, are virtual synonyms and staff development involves learning and training.
Interpretation of "and" and "or"
[53] The Statement of Qualifications contains the word "and" which is repeated (3) three times:
Experience in providing advice, guidance, and service to HRCC directors, the management team and staff related to human resource management, learning, staff development and staff training.
(my emphasis)
[54] However, there seemed to be lingering confusion due to the fact that the word "and" was interpreted by Karen Gunn as though it was written as "or". This becomes evident from the e-mail exchange that took place between Karen Gunn and Colleen Kelley.
[55] In the e-mail sent by Karen Gunn to Colleen Kelley, found at page 68 of the Applicant's Application Record (Volume I of III), it is read:
hi Colleen. Our feeling, when working on the SOQ for this position, was that anyone involved with preparing training, lesson plans, delivering training etc to staff, the management team or the director would meet the experience criteria. I do think there would be quite a number of staff who would have related experience such as this. [...]
(my emphasis)
[56] In the e-mail response sent by Colleen Kelley to Karen Gunn, found at page 68 of the Applicant's Application Record (Volume I of III), it is also read:
Thanks Karen,
I still find it a very confusing statement. It states that this individual would have had to provide this experience to directors, management team and not or [sic] staff. That would mean to me that to be eligible to apply the individual would have had to have some dealinings [sic] with the director and management team around issues of human resource management. Can you clarify. [...]
[57] To provide some clarity as to their meaning, I have produced the definitions of the words "and" and "or" from the Oxford English Dictionary On-line:
And, conj. Of logical relation: By the side of, besides, along with, in
addition to. [...] Simply connective.
Or,adv. As comparative.
[58] The Appeal Board commented on the interchange of the words "and" and "or" as follows at paragraph 21 of page 17 of the decision:
The appellant contended that the selection board ignored the words ‘and' in the experience requirement and appeared to treat them as ‘or'. Given the redundancies and generalities in the experience requirement phraseology, the distinctions that normally exist between ‘and' and ‘or' are rendered meaningless in this experience requirement.
[59] However, it is in the following paragraph of the decision that the Appeal Board incorrectly interpreted the Statement of Qualifications. Paragraph 22 found at page 17 reads as follows:
Based upon the above analysis of the experience requirement as written in the Statement of Qualifications, I have concluded that it simply called for candidates to have experience in providing a service related to human resource management to both management and staff.
[60] This interpretation of the experience requirement is erroneous and justifies the intervention of this Court.
[61] In its conclusion, the Appeal Board found that the Selection Board neither amended nor enlarged the experience requirement. In its view, the Selection Board did no more than reasonably interpret and apply the broad language of the Statement of Qualifications. At the top of page 9 of its decision, the Appeal Board stated:
From this conclusion, it would naturally follow that the approach adopted by the selection board was not an enlargement of the experience requirement set out in the Statement of Qualifications. Rather, it was simply an interpretation of that requirement. Accordingly, this first allegation is dismissed.
[62] I cannot agree. In light of the foregoing, I find that a serious discrepancy was borne from what was written in the experience requirement of the Statement of Qualifications and the e-mails which interpreted it differently. An error was committed ab initio which vitiated the entire competition process. The Appeal Board therefore, in its innocence, also committed an error.
[63] It is difficult to imagine that the same individuals who composed the Statement of Qualifications could form such a different interpretation of it. Such a situation must be corrected in order to uphold transparence in the competition process. Therefore, the intervention of this Court is justified.
O R D E R
[64] In consequence, this application for judicial review is allowed;
- The decision of the Appeal Board rendered February 23, 2001 will be set aside;
- The matter will be referred back to the Appeal Board for reconsideration in accordance with this order;
- The applicant is entitled to her costs.
Pierre Blais
Judge
OTTAWA, ONTARIO
April 19, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-584-01
STYLE OF CAUSE: PATRICIA BARBEAU v. ATTORNEY GENERAL OF CANADA AND OTHERS
PLACE OF HEARING: OTTAWA
DATE OF HEARING: APRIL 15, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE BLAIS
DATED: APRIL 19, 2002
APPEARANCES:
MR. DAVID YAZBECK FOR APPLICANT
MR. SANDERSON GRAHAM FOR RESPONDENTS
SOLICITORS OF RECORD:
MORRIS ROSENBERG FOR RESPONDENTS Deputy Attorney General of Canada
RAVEN, ALLEN, CAMERON & BALLANTYNE FOR APPLICANT Ottawa, Ontario