Date: 20050216
Docket: T-776-04
Citation: 2005 FC 252
BETWEEN:
DR. SHIV CHOPRA, DR. MARGARET HAYDON
and DR. GÉRARD LAMBERT
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
STRAYER D.J.
Introduction
[1] This is an application for judicial review of a decision dated March 17, 2004 of an Appeal Board appointed under section 21 of the Public Service Employment Act (RSC 1985, c.P-33). In that decision the Board dismissed an appeal of the applicants in respect of three competitions to fill positions within Health Canada. The applicants were unsuccessful in those competitions.
Facts
[2] There were four Division Chiefs positions in the Bureau of Veterinary Drugs in Health and Welfare Canada. In each competition a test known as Management In-Basket (MIB) 810 was used to screen the candidates. These tests involved the presentation of hypothetical problems to the candidate and they were expected to show how they, as a manager, would deal with such problems.
[3] It appears from the record that personnel officers at Health and Welfare Canada (HWC) sought guidance from officers of the Public Service Commission (PSC) concerning the use of the MIB test and they sought assurances that the "adverse impact" on visible minorities would be negligible. An email of July 17, 2000 from the PSC to HWC stated in part as follows:
There is some adverse impact for visible minorities on the 810. The impact is less when the pass mark is lower. The test, however, becomes less effective is the pass mark is too low. Based on my discussion with Bastian, I would suggest the pass mark not go below 14/25. It seems that the impact is minimal at this level and the test is still effective . . . .
By this time the MIB tests had been administered to these candidates but had not been marked. Subsequently they were marked on the basis of 14 being a passing grade. Of the fourteen candidates taking the test, seven were successful and seven were unsuccessful at the screening stage. Of the seven successful candidates two were self-identified as members of visible minorities. Of the seven who did not succeed, there were also two self-identified as members of visible minorities.
[4] The present applicants brought an appeal to an Appeal Board under section 21 of the Public Service Employment Act. The respondent Attorney General of Canada failed to disclose the whole of the email of July 17, 2000. The full text was not disclosed until near the end of the hearing before the Board. The applicants sought an adjournment in order for them better to respond to this new evidence but the Board refused the adjournment. The Board dismissed the appeal of the applicants. They then brought an application for judicial review to this Court and Kelen J. set aside the decision of the Board on the basis that the Chairman had not given the applicants a proper opportunity to respond to this new evidence. The matter was sent back to the Board.
[5] In a new hearing before the Board the essential issue was the content of the email in question and the evidence which the applicants said it represented to the effect that the MIB 810 has an adverse impact on visible minorities. Even though the email stated the view that with a passing mark of 14 the impact would be "minimal", that would suffice, in the view of the applicants, to establish that the test was not in accordance with the merit principle as prescribed in subsection 10(1) of the Public Service Employment Act. At the second hearing before the Board, the applicants called no evidence. The respondent called two witnesses. The first was Trish Worgan who was Human Resources Advisor in HWC and was responsible for the staffing of these three positions. She set the passing mark of 14 in accordance with the advice from the PSC. On cross-examination she admitted that even with the mark set at 14 there could be a "minimal impact" on members of visible minorities.
[6] The respondent also presented an expert witness, Jean-Pierre Thivierge, an industrial organizational psychologist employed by the Personnel Psychology Centre of the PSC. He testified that an extensive study carried out by the PSC of the use of the MIB test over a number of years demonstrated the validity and reliability of the test. Longitudinal studies which the Commission had carried out demonstrated that the MIB does predict later career progression in managerial positions. He also referred extensively to the Hunter Report prepared by Professor John Hunter, Department of Psychology, Michigan State University, in 1991 concerning the validity and reliability of the MIB 810 test. Doctor Hunter also concluded that the test or its equivalent showed a high correlation between results and career progress.
[7] Mr. Thivierge also testified as to the "80% rule". This is a rule adopted by the United States Equal Employment Opportunity Commission in 1978 to protect minority groups from discrimination in hiring. This rule means that if a given test selects visible minority candidates at a rate that is at least 80% of the success rate of non-visible minorities it is prima facie acceptable. Put another way, if it produces less than 80% of successful candidates among visible minorities compared to successful candidates among the rest of the population, then prima facie it is defective and the employer has the burden of showing that there is some reason other than the colour of the candidate. According to him this rule has been widely accepted in the field of industrial organizational psychology in both the United States and Canada and has been used by the PSC since at least 1983. Other Canadian experts were cited in support of this rule. He also testified about "D-Score Analysis" which is a measurement of the difference between the mean test scores of visible minority and other groups. Based on the results of PSC candidates taking the MIB 810 test from April 1, 1996 to July 26, 2000, the deviation between visible minority candidates and others was less than one-third of what is considered by industrial psychologists to be a standard deviation.
[8] The Board concluded that the test "necessarily resulted in the selection of the most meritorious candidates" and therefore dismissed the appeals. The applicants apply here for judicial review, with an order setting aside the decision of the Appeal Board of March 17, 2004, and an order referring the appeals back to the Appeal Board with the direction that the appeals be sustained, or an order referring them back to be heard by another Appeal Board and dealt with in accordance with the reasons of this Court.
Analysis
Standard of Review
[9] I am satisfied that the proper standard of review of such a decision of the Appeal Board is that of reasonableness. What is involved is the application of the merit principle to a particular set of facts, namely the selection process used in this case. The merit principle is set out in subsection 10(1) of the Public Service Employment Act states that:
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10.(1) Appointment to or from within the Public Service shall be based on selection according to merit, as determined by the Commission . . . . |
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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 . . . . |
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As the Supreme Court of Canada indicated in Law Society of New Brunswick v. Ryan, [2003] 1 SCR 247 at paragraph 42, one should take into account the expertise of the Appeal Board, the purpose of its enabling statute, and the nature of the question in dispute in deciding whether a more deferential standard of review than correctness is required. In the present situation, I believe one must consider the Appeal Board to have expertise in the application of the merit principle. The purpose of section 10 of the Public Service Employment Act is to ensure that selection is by merit, and the question in dispute, namely the conduct of a competition to fill certain positions in the Public Service, both indicate that the Court should show considerable deference to the views of the Public Service Commission Appeal Board. Although the applicants have argued that the standard of correctness should apply, I believe that this case involves a mixed question of fact and law for which the Appeal Board has some expertise. I respectfully concur with several judges of this Court who have applied the standard of review of reasonableness to such decisions: see, e.g., Hains v. Canada (Attorney General), [2001] F.C.J. No. 1238, at para. 27; Gawlick v. Canada (Attorney General), [2004] F.C.J. No. 795, at para. 20 and Fox v. Canada (Attorney General), [2004], F.C.J. No. 1172 at para. 14.
Was Appeal Board's Decision Reasonable?
[10] In essence, in deciding whether the competition was consistent with the merit principle, the Appeal Board had to decide whether the test employed was relevant to determining the ability of the candidates for the job. That is, was the test truly in respect of job-related qualities? As this Court said in Delanoy v. Public Service Commission Appeal Board, [1977] 1 F.C. 562 at 568 it is necessary that there be a "rational link" between requirements imposed on candidates and selection according to merit in respect of the position in question. In Attorney General of Canada v. Greaves, [1982], 1 F.C. 806 (C.A.) Pratte J.A. described the merit principle as meaning "that the best persons possible will be found for the various positions in the Public Service . . . ."
[11] It was therefore appropriate for the Appeal Board to consider whether the test employed here, the MIB 810, could reasonably be considered to be a fairly accurate measure of ability to do the jobs in question. Of course the Board should be alert to any evidence that the test eliminated, for no job-related reason, members of visible minorities or any other segment of society because that would be inconsistent with the merit principle.
[12] In this case, however, the Board had before it expert evidence that this test had been studied and had been shown to have high "content validity" (that is it posed problems similar to those handled by a manager on a daily basis); had "construct validity" (it measures the skills that it was designed to measure); and it had a high "predictive validity" (that is the results obtained by candidates accurately reflected their subsequent career achievements).
[13] At the same time it also had evidence that by the standards of industrial organizational psychology in both the U.S. and Canada the adverse impact the test might have on visible minorities was not at a level to challenge the validity of the test on this basis. There was evidence of a study done by the Public Service Commission of the success rates of visible minorities compared to others over a four year period (1996 to 2000) where the pass mark for the MIB was set at numbers between 10 and 19. With respect to every mark other than 18, the success rate of visible minorities was 80% or more of that of the remaining population. In the case of the mark of 14, which was used in the test in question here, the success rate of visible minorities was 83.8%. In the view of experts in industrial organizational psychology a success rate in this order does not suggest that the test is intrinsically invalid in measuring abilities for the job in question and the onus would not normally be put on the employer to show that the results are not related to the racial characteristics of the candidate.
[14] I am satisfied that on the basis of this evidence the Appeal Board acted reasonably in concluding as it did and the application for judicial review must be dismissed with costs.
(s) "B.L.Strayer"
Deputy Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-776-04
STYLE OF CAUSE: DR. SHIV CHOPRA, DR. MARGARET HAYDON and DR. GÉRARD LAMBERT v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 25, 2005
REASONS FOR ORDER: Strayer D.J.
DATED: February 16, 2005
APPEARANCES:
Mr. D. Yazeck FOR THE APPLICANTS
Ms. Anne T. Turley FOR THE RESPONDENT
SOLICITORS OF RECORD:
Raven Allen
Ottawa, Ontario FOR THE APPLICANTS
Mr. John H. Sims, Q.C.
Deputy Attorney General
Ottawa, Ontario FOR THE RESPONDENT