Date: 20040511
Docket: T-1025-03
Citation: 2004 FC 691
Ottawa, Ontario, this 11th day of May, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
ROBERT J. APLIN AND BRUCE CLARK
Applicants
and
ATTORNEY GENERAL OF CANADA AND DAVID COUPAR
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of a chairperson of the Public Service Commission, Appeal Board (the "Appeal Board"), dated May 23, 2003. In that decision, the Appeal Board dismissed the applicants' appeals, made pursuant to s. 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 ("PSEA"), of the appointment without competition of David Coupar. The applicants request an order setting aside the decision of the Appeal Board and remitting their appeal back for reconsideration by the Appeal Board. The applicants also seek their costs in this application.
BACKGROUND
[2] The applicants, Mr. Robert Aplin and Mr. Bruce Clark, are investigation and control officers with Human Resources Development Canada ("HRDC"). They appealed the appointment without competition of David Coupar to the indeterminate position of Chief, Investigation and Control (PM-05) of HRDC.
[3] On April 4, 2001, a closed competition was conducted, open to HRDC employees who worked or resided in the B.C./Yukon Region, for the PM-05 position. This was a new position created to manage daily operations in the Investigation and Control unit, while the Regional Manager, Investigation and Control, PM-06 was assigned additional temporary duties. Since this realignment of the Regional Manager's duties was temporary, the PM-05 position was created as a term position.
[4] A selection board, comprised of three individuals related to the Investigation and Control branch of HRDC, was created to administer the competition and identify the most meritorious candidate. Five candidates participated in the competition, including one of the applicants, Robert Aplin, and the respondent, David Coupar. Mr. Coupar was found to be the only qualified candidate and commenced working in the PM-05 position on July 3, 2001.
[5] In the fall of 2002, due to the changing role of the Regional Manager, an indeterminate PM-05 position was required and such a vacancy was established in October 2002. In determining how to staff this indeterminate PM-05 position, HRDC considered the fact that the closed competition referred to above had been held one year earlier and that there did not appear to be a significant change in the pool of candidates. Furthermore, HRDC also considered that there had been a closed competition for a PM-04 position, Regional Investigation and Control Consultant, conducted in June 2002 and that this produced no qualified candidates. Therefore, it was determined that a without competition process was in HRDC's best interests and a two-member selection board assessed Mr. Coupar's qualifications for the position and found him qualified on December 5, 2002. The selection board then proposed that Mr. Coupar be appointed to the indeterminate position effective December 31, 2002. There is no indication that the selection board considered any other employees' qualifications for the indeterminate position in finding that Mr. Coupar was the most meritorious candidate.
[6] A notice of a right to appeal, open to all HRDC employees employed in the B.C./Yukon region was issued December 9, 2002 with the appeal period ending December 31, 2002. Both applicants appealed Mr. Coupar's appointment pursuant to subsection 21(1.1) of the PSEA within the appropriate time frame.
[7] At this point, after the applicants had filed their section 21 appeals against the appointment of Mr. Coupar, the selection board proceeded to assess both applicants against the Statement of Qualifications for the PM-05 position. The selection board undertook this assessment with the understanding that it was acting in compliance with the Federal Court of Appeal decision of Attorney General of Canada v. Greaves, [1982] 1 F.C. 806 (C.A.), leave to appeal to the S.C.C. refused, [1982] 1 S.C.R. v.
[8] After completing this assessment, the selection board found that the applicants had failed to demonstrate that they met the experience requirements for the position. The "selection/ rating guide", on the record before the Appeal Board, for each applicant is dated January 17, 2003, and is signed by both selection board members. In coming to this conclusion, the selection board relied on a reference for both applicants provided by a district manager who had only remote supervisory contact with them and the selection board did not attempt to contact the applicants' direct supervisor for a reference and description of their employment duties and experience. Furthermore, as set out in the decision of the Appeal Board, the selection board relied on performance review and evaluation appraisals contained on the applicants' personnel files that were quite outdated; Mr. Aplin's having been completed in 1995 and Mr. Clark's in 1998.
[9] Subsequent to this on February 26, 2003, a human resources advisor with HRDC, Ms. Johnston, emailed the appellants' union representative and stated that in light of the allegations brought forward in the applicants' appeals, the selection board may have overlooked some information in assessing the applicants' qualifications. This HR advisor stated that "in keeping with the 'Greaves' decision, we will be contacting the appellants directly to obtain their resumes/ applications. Once we have completed this re-assessment we will contact you."
[10] In response, Mr. Aplin provided one piece of new information, that he had completed two training courses in 2002. Mr. Clark declined to provide any further information, stating in his reply to such request that he believed that the matter was now with the Appeal Board to determine whether merit had been properly considered. Notes from the selection board dated March 7, 2003 indicate that after considering the additional information provided by Mr. Aplin, the selection board confirmed their assessment of January 17, 2003 for each of the applicants.
[11] In appealing Mr. Coupar's appointment, the applicants alleged that the selection board used inappropriate tools to assess their levels of experience and that the selection board had contravened the merit principle by performing a comparative analysis of the candidates for the first time in late February and early March 2003, and that the selection board, by that time, was functus officio.
THE APPEAL BOARD'S DECISION
[12] The applicants' appeal was heard by chairperson Allen H. Soroka of the Appeal Board on May 7, 2003. The applicants were represented by a member of their union.
[13] The Appeal Board dismissed the applicants' appeals in a decision dated May 23, 2003. With respect to the applicants' argument that the selection board had used inappropriate tools to assess the applicants' level of experience, the Appeal Board stated at pages 16 and 17 -18 of its reasons:
In this case, the Selection Board decided to assess the candidates through a review of their work history as reflected in their personnel files, including appraisal reports, reference narratives solicited from supervising managers, and Board members' personal knowledge of the breadth of experience associated with assignments in the appellants' work histories.
The uncontradicted evidence before me established that the successful candidate was assessed using the same tools employed to evaluate the appellants. ...
It is true that in my review of the evidence I have found a number of weaknesses, one might even say omissions, in the Selection Board's array of tools used to assess the appellants' experience. Each of the tools used was less than perfect. Also, the failure to afford Messrs. Aplin and Clark an opportunity to present detailed résumés and the failure to solicit references from the appellants' immediate supervisor, Ms. Gray are weaknesses as well. I do not think, however, that these weaknesses in the assessment tools cans properly lead me to find that the Board's findings were unreasonable and arbitrarily arrived at. The appellants proffered no evidence at all. There was no alternative display of their experience level introduced from which I might draw the conclusion that the Selection Board's tools were inappropriate and that the assessment thus arrived at was unreasonable. I conclude that the weaknesses and omissions outlined above were not fatal to the evaluation and were no more than mere irregularities in the facts of this case.
[14] The Appeal Board also rejected the applicants' argument that the selection board had contravened the merit principle in assessing the applicants' qualifications for the PM-05 position after they had launched their s. 21 appeals. In reaching this conclusion, the Appeal Board relied on the Federal Court of Appeal decisions of Greaves, supra, and Blagdon v. Canada (Public Service Commission), [1976] 1 F.C. 615 (C.A.).
ISSUES
[15] 1. What is the appropriate standard of review in this case?
2. Did the Appeal Board err in law in determining that the principle of merit had not been violated by the selection board through the manner in which it evaluated the applicants' experience?
3. Did the Appeal Board err in law in accepting that the process employed by the selection board in completing two "after-the-fact assessments" of the applicants' qualifications was not contrary to the PSEA?
ANALYSIS OF PARTIES' SUBMISSIONS
Standard of Review
[16] The applicants submit that the appropriate standard of review in this case is correctness, given that the issues for determination relate to matters of law involving the proper interpretation and application of the PSEA. The respondent, on the other hand, argues that the standard of review should be patent unreasonableness for the Appeal Board's findings of fact and correctness where determinations of law are involved. In the present case, the respondent submits that the standard should be reasonableness simpliciter, as the Appeal Board was not required to interpret the PSEA or make general pronouncements with respect to the law. The respondent argues that the issues under review are primarily factual and involve little legal analysis, and that the application of the merit principle does not involve any broad principles of law.
[17] In my opinion, the appropriate standard of review is correctness. I have come to this conclusion having regard to all four factors of the pragmatic and functional approach since, as directed by the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, a more nuanced analysis based on a consideration of all factors must be applied, rather than merely pigeon-holing the standard based on the nature of the question.
[18] The PSEA does not contain a privative clause or statutory right of appeal, making this a neutral factor. Second, the issues involved in this case deal with questions of law, that is whether the merit principle was respected and whether the Appeal Board was correct in its interpretation of the Greaves decision as permitting the selection board to complete further evaluations of the applicants after they had launched their section 21 appeals. Nothing in the PSEA or Regulations requires an Appeal Board to have any specialized training, experience or qualifications in the law. The Appeal Board is appointed on an "ad hoc" basis as recognized in Boucher v. Canada (Attorney General), [2000] F.C.J. No. 86 (C.A.)(QL) and its members are not required to have any particular expertise in the law, including interpretation of the PSEA or Federal Court jurisprudence. Therefore, the Appeal Board cannot be seen as having greater expertise then the Court on the questions at issue in this review.
[19] Third, the purpose of the PSEA is to provide that selection and appointment to the public service of Canada takes place in accordance with merit: see Bambrough v. Public Service Commission Appeal Board, [1976] 2 F.C. 109 (C.A.) at 115 and Buttar v. Canada (Attorney General), [2000] F.C.J. No. 437 (C.A.)(QL). Moreover, the purpose of a section 21 appeal is not to protect an appellant's rights, but rather to ensure that appointments are based on selection according to merit: Charest v. Canada (Attorney General), [1973] F.C. 1217 (C.A) at 1221. Determining whether the selection process in the applicants' case permitted the appointment of the most meritorious candidate does not engage polycentric decision-making involving the balancing of competing interest groups, so as to warrant deference by this Court. This factor favours less deference.
[20] Finally, as already noted, the questions involved in this judicial review are questions of law. I disagree with the respondent that if broad legal pronouncements are not involved in dealing with the merit principle, then the Appeal Board's application of the merit principle is lowered to a more deferential standard of review. Boucher, supra, and Buttar, supra, where the standard of correctness was applied, dealt with situations where the method of assessment and comparison of candidates was challenged as having contravened the merit principle. The issues involved in the case at bar are not of a different category. The first issue is whether the methods of evaluation adopted by the selection board allowed it to assess the candidates in accordance with the principle of merit set out in s. 10(1) of the PSEA. As held in Boucher, supra this points to the least amount of deference. The second issue relates to the Appeal Board's interpretation of the Greaves decision and whether the Appeal Board erred in finding that this jurisprudence authorized the selection board to complete assessments of candidates after they had filed appeals. Therefore, after analysing these factors, I conclude that the standard of review to be applied is correctness.
Appropriate method of evaluation
[21] Since the applicants challenged an appointment that was made by a process of personnel selection other than a competition, they commenced their appeals pursuant to section 21(1.1) of the PSEA. For reference, I set out both section 21(1) and (1.1) below:
| 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. (1.1) Where a person is appointed or about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service by a process of personnel selection, other than a competition, any person who, at the time of the selection, meets the criteria established pursuant to subsection 13(1) for the process 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.
[Emphasis added]
|
|
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.
(1.1) Dans le cas d'une nomination, effective ou imminente, consécutive à une sélection interne effectuée autrement que par concours, toute personne qui satisfait aux critères fixés en vertu du paragraphe 13(1) 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.
[Je souligne]
|
[22] Section 10(1) of the PSEA requires that appointments to positions in the federal public service be based on merit:
| 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.
|
[23] The applicants submit that the Appeal Board erred in law in concluding that the selection board had performed its duty to assess the relative merit of the candidates in accordance with section 10(1) of the PSEA. The Appeal Board made clear findings as to a number of weaknesses and omissions in the selection board's method of assessment of the applicants' experience and it was therefore incorrect for it to determine that the selection board had assessed candidates in accordance with the merit principle.
[24] The respondent argues that the Appeal Board's conclusion that the assessment tools used by the selection board were appropriate and in line with the merit principle was reasonable, as the Appeal Board clearly found that Mr. Coupar had been assessed using the same tools that were employed to evaluate the applicants. The respondent submits that even though the Appeal Board recognized that there were irregularities and problems with the selection process, there was nothing unreasonable about it finding that such irregularities did not have any material affect on the result of the appointment. The respondent argues that the issue of whether an irregularity in the selection process influenced the results of a competition is a pure question of fact, and entitled to a great deal of deference by this Court: Laplante v. Canada, [2003] F.C.J. No. 844 (T.D.)(QL), aff'd 2004 FCA 39.
[25] In my opinion, the irregularities admitted and noted by the Appeal Board, namely, the sparse reference provided by a manager who did not have a direct supervisory role in relation to the applicants, the initial failure to give the applicants a chance to present more detailed resumes, the failure to solicit references from the applicants' immediate supervisor and the use of dated performance appraisals, in combination with the Appeal Board's error in upholding the process employed by the selection board, set out in my analysis below, raise a "real doubt" as to whether the merit principle had been respected in this case: Charest, supra.
[26] This Court has held that the determination of whether an irregularity in the selection process resulted in an appointment being made in violation of the merit principle is to be reviewed on the most deferential standard of review, see: Lai v. Canada (Attorney General), [2001] F.C.J. No. 1088 (T.D.)(QL) at para. 39 and Laplante, supra, at para. 30. I am satisfied that even if this standard of review is applied, the Appeal Board's final determination that the merit principle was not violated in this case cannot stand.
Appeal Board's finding that the process followed by the selection board in conducting both "after-the-fact" assessments of the applicants was acceptable.
[27] The applicant has challenged the procedure followed by the selection board in assessing their qualifications on two subsequent occasions after they had launched their appeals. In my opinion, this issue involves two separate components. First is the issue of whether a selection board, in selections made without a competition, may subsequently evaluate the qualifications of candidates who have launched appeals pursuant to section 21(1.1) of the PSEA and are therefore identified as possibly being qualified for the challenged appointment.
[28] The second issue is whether after completing such evaluation and coming to a conclusion with regards to relative merit, the selection board can be re-established to further determine the question of relative merit. Having reviewed the applicable provisions of the PSEA and the Public Service Employment Regulations, 2000, SOR/2000-80 (the "Regulations") and the jurisprudence referred to by the parties, I have come to the conclusion that there was an error committed by the selection board that was then upheld incorrectly by the Appeal Board with regards to the selection process.
[29] The underlying argument of the applicants is that the selection board cannot reassess the qualifications of candidates after a candidate has been selected for appointment, as this would usurp the role and function of the Appeal Board. The applicants argue that it is beyond the jurisdiction of the selection board to act in this manner. The applicants also submit that it is fundamentally unfair to those who may qualify to be in the running for such positions since it places an onus on them to launch appeals of proposed appointments for which they should have been considered and in practical terms, permitting this procedure would delay and frustrate the section 21 appeals process since a selection board could perpetually revisit its determination. In such a situation, errors made by the selection board on subsequent evaluations of the candidates' qualifications may be omitted from the original appeal and the provision of ongoing disclosure would also complicate and delay the appeal of the appointment.
[30] The respondent argues that the Appeal Board did not err in finding that the selection board appropriately conducted an "after-the-fact" assessment of the applicants' qualifications after they had launched their section 21 appeals. The respondent stresses that the applicants were not prejudiced by the actions of the selection board and in fact benefited from the selection board's request for further information.
[31] The respondent also argues that even if the procedure of the selection board was flawed, this had no impact on the Appeal Board's ultimate decision, since the applicants did not possess the experience required for the PM-05 position, and the matter should not be sent back for a new hearing on this ground alone. The respondent characterizes the applicants' position as having raised a number of hypothetical arguments that do not have an impact on the outcome of this case because they failed to present evidence before the Appeal Board that the selection board's evaluation of their experience was incorrect or that they were somehow prejudiced by the procedures used by the selection board.
[32] It must be remembered that the Public Service Commission (the "Commission"), as represented by its delegates at the departmental level, is not obliged to proceed by way of competition when staffing a position. The legislation gives the Commission the discretion to choose other processes of personnel selection that it considers to be in the best interests of the Public Service: see s. 10(1) of the PSEA and s. 16(2) of the Regulations. Indeed, s. 21(1.1) recognizes this possibility and has provided for appeal rights to those individuals who would fall within the area of selection established by that alternate process for personnel selection: see section 13(1) of the PSEA.
[33] Renée Caron in Employment in the Federal Public Service (Aurora, Ont.: Canada Law Book Inc., 2003) at 2-59- 2-60 provides useful insight into the difficulty that arises when appointment without competition is used by the Commission in public service staffing:
The Public Service is not obliged to proceed by way of competition when staffing a position on the basis of relative merit. It has the discretion to choose such other processes of personnel selection as it considers to be in the best interests of the Public Service. However, this power does not relieve it from the obligation to respect the merit principle. The requirements of the merit principle under s. 10(1) of the Public Service Employment Act do not change depending on the selection process chosen. ...
One of the difficulties raised by the use of non-competitive processes of personnel selection to determine relative merit is that such processes will not include a call for applications. If applications are not solicited, it is not readily apparent which persons ought to be considered as candidates ...
Although everyone in the area of selection is, notionally, to be considered as having been a candidate for the appointment, most will usually not have been considered or assessed at the time the selection for appointment was made. In order to ensure that the appointment resulting from the selection process was made according to merit, the Commission allows all persons in the area of selection to appeal and, if an appeal is made, the appellant's merit is assessed and compared to that of the person proposed for appointment; thus, the process might loosely be called "relative merit after the fact". If the appellant is determined to be more meritorious than the person proposed for appointment, the appeal may be allowed and the proposed appointment cancelled.
[Footnotes omitted]
[34] The Federal Court of Appeal in Greaves, supra, confirmed that appointments made without competition remain subject to the principle of merit. As is clear from the record, HRDC officials and the selection board acted with the understanding that the Greaves decision permitted the selection board to undertake a comparative analysis of the merit of individuals who had launched appeals in relation to the merit of the chosen candidate in the without competition selection. The Appeal Board in turn found this process to be an appropriate interpretation of the requirements of the PSEA, since in situations of appointment without competition, "the selection process is often neither straight nor smooth." (page 14 of the Appeal Board's decision).
[35] The Appeal Board then determined that such subsequent comparison of qualifications "must be done" in order to ensure that comparative merit has been fairly established. In my view, Greaves does not mandate that such "after-the-fact" assessments must be done, yet it implies that this will usually be the case, since, as stated in the excerpt above from the Caron text, this is often the only way in which a selection board will become aware of possible candidates. At pages 811- 812 of Greaves, Justice Le Dain stated as follows regarding the process to be followed by a selection board in evaluating candidates where the Commission has determined that no competition is to be held:
...How, then, is the Commission, or those exercising its delegated authority, to know who the candidate for appointment is to be compared with in order to satisfy the requirement of section 10?... Such persons are usually identified after a selection is made, as happened in the present case after the first selection which led to the first decision of the Appeal Board, but they may, as a practical matter, be identified before a selection is made, and should there by any oversight in this respect it may be subsequently corrected. ...
[36] The applicants argue that any comparison of relative merit between the selected individual and those that appeal the appointment should only be made following a decision by the Appeal Board to refer the matter back to the Commission to take corrective measures. Those measures could include referring the matter back to the selection board to make a relative comparison of merit. In my view, this would be an overly cumbersome and unnecessary practice in many circumstances. I agree with the applicants that to the extent that the Appeal Board viewed that the procedure employed by HRDC and the selection board was required by the Greaves decision, it erred. However, I do not accept the applicant's submission that this type of subsequent assessment can never be done by a selection board attempting to comply with the merit principle in situations of an appointment without competition. The PSEA grants the Commission, and those delegated to exercise its authority, the discretion to select individuals for appointment without competition, meaning that a call for applications is not required and the Commission may proceed with the appointment, after having demonstrated a good faith and diligent attempt to consider all those who may be similarly qualified for the position. In this case, there is evidence that HRDC did this (see paragraph 5 above).
[37] I also disagree with the applicant that Greaves decision is now distinguished from the current right of appeal set out in s. 21(1.1) due to the fact that the Court in Greaves considered
s. 21 as it was previously worded, giving those in the appellants' situation who desired to challenge an appointment without competition, the right to appeal where they could demonstrate that their "opportunity for advancement" had been "prejudicially affected" by an appointment. The current provision now provides a less onerous route of appeal for those who can demonstrate that they fall within the area of selection as established by section 13(1) of the PSEA. Nonetheless, this does not change the fact that the selection board may not be aware, until after certain individuals have filed appeals, that certain candidates deserve to be considered and evaluated in accordance with the merit principle for a particular position that was staffed without competition.
[38] My comments should by no means be taken as relieving a department or selection board from diligently attempting to ascertain certain candidates who fall within the area of selection and who appear to meet the qualifications for a position for which an appointment without competition is contemplated. In this case, it appears that HRDC reasonably concluded, prior to recommending that Mr. Coupar be appointed to the indeterminate PM-05 position without competition, that there did not appear to be other candidates who would qualify for this position within the selection area. From my review of the evidence, this was based on a good faith and diligent search of the possible pool of candidates.
[39] The Appeal Board and the selection board perform separate and distinct functions in the selection and appointment of individuals to positions in the federal public service. The function of the selection board is to select and appoint individuals according to merit. The Appeal Board's function is not to re-evaluate the ranking of individuals determined by the selection board, but to conduct an inquiry in order to determine that the selection has been made in accordance with the merit principle: see MacDonald v. Canada (Public Service Commission), [1973] F.C. 1081 (T.D.) and Blagdon, supra. In my opinion, when proceeding with an appointment without competition, the selection board's function is to assess and compare the merits of candidates brought to its attention, even if this occurs subsequent to the initiation of appeals by individuals not previously identified. This function terminates upon the identification of such appellants and the selection board's decision to either compare their qualifications to the selected individual or to determine that such assessment is not necessary in order to comply with the merit principle.
[40] Moreover, where such a subsequent assessment is done, the applicant's right to appeal would continue and the Commission must ensure that the disclosure requirements with regards to the appeal are met with regards to any new evaluation or assessment completed by the selection board. If a newly identified individual is found to be more meritorious then the originally selected person, new appeal rights would come into existence and a new Notice of Appeal would have to be posted.
[41] Therefore, in relation to the first component of this issue identified above, the selection board did not err in completing an assessment of the applicants' qualifications after they had initiated their appeals. It follows that the Appeal Board therefore was correct in respect to its finding in this area, subject to my comments above that Greaves is not to be read as mandating that after-the-fact assessments "must be" conducted in every case where there is appointment without competition and individuals launch appeals under s. 21(1.1).
[42] Moving to the second part of this issue, I find that HRDC and the selection board erred in attempting to correct itself with regards to the second, subsequent assessment of the applicants' experience for the PM-05 position. The right of appeal identified individuals who had not been discovered after a reasonable and diligent attempt to find a pool of candidates. The selection board proceeded to evaluate Mr. Aplin and Mr. Clark in January 2003 and compared their qualifications to those of Mr. Coupar. In my view, this was the extent of the selection board's jurisdiction over the matter.
[43] The selection board second post-appeal assessment of further information that the candidates were invited to submit by HRDC, prompted by the applicants' allegations upon appeal, was not done in accordance with the PSEA or the Regulations. Such practice effectively usurps the role of the Appeal Board who must determine whether or not the merit principle was respected. I disagree with the respondent that this request for further information in February 2003 did not prejudice the applicants, as the applicant Clark declined to provide further information under the correct belief that an Appeal Board would be investigating whether the merit principle was respected in his case. In any event, whether or not the applicants benefited from or were prejudiced by an action that overstepped the jurisdiction of the selection board is, in my opinion, irrelevant.
[44] Allowing the selection board to "self-correct" itself in this fashion, beyond its first evaluation of the applicants after their identification as possible, qualified candidates, would bring about an array of practical problems related to their appeal. Subsequent assessments would engender problems with fairness in providing disclosure, not to mention added delay in getting to the Appeal Board stage. And most importantly, as I have concluded that such process is not authorized by the legislative scheme, given the distinct and separate functions of the selection board and the Appeal Board, as well as the need for finality to the selection process, this process was contrary to law.
ORDER
THIS COURT ORDERS that this application for judicial review is allowed, the decision of the Appeal Board is set aside and a different chairperson of the Appeal Board shall redetermine this matter in accordance with these reasons. Costs to the applicants.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1025-03
STYLE OF CAUSE: ROBERT J. APLIN AND BRUCE CLARK
AND
ATTORNEY GENERAL OF CANADA AND
DAVID COUPAR
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 6, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: May 11, 2004
APPEARANCES:
James Cameron FOR THE APPLICANT
Michael Roach FOR THE RESPONDENT
SOLICITORS OF RECORD:
JAMES CAMERON FOR THE APPLICANT
Raven, Allen, Cameron & Ballantyne
Ottawa, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario