Date: 20040504
Docket: T-305-02
Citation: 2004 FC 656
Ottawa, Ontario, this 4th day of May, 2004
Present: The Honourable Justice James Russell
BETWEEN:
ROY GAWLICK
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Chairperson of the Appeal Board of the Public Service Commission ("Chairperson" or "Appeal Board"), dated January 23, 2002 ("Decision"). In the Decision the Appeal Board dismissed the appeal by Mr. Roy Gawlick ("Applicant") filed under s. 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended ("PSEA"), from a decision of the Selection Board of the Public Service Commission made with respect to an appointment to the position of Intelligence Analyst in the Department of Citizenship and Immigration.
BACKGROUND
[2] In the spring of 2001, Citizenship and Immigration Canada ("CIC") decided to fund a position of Intelligence Analyst in the B.C./Yukon Region ("Position"). The Position had to be filled on an acting basis until March 2002. CIC established a list of qualifications for the appointment.
[3] CIC advertised a closed competition by issuing a competition poster. The Applicant submitted his application in response to the advertisement. Selections for the Position were made by Ms. Goodwin Gosen, Chief of Intelligence in the B.C./Yukon Region, acting as a one-member panel of the Selection Board of the Public Service Commission.
[4] Ms. Gosen screened the applications submitted by 17 candidates against the experience and educational pre-requisites for the Position and determined that four candidates, including the Applicant, qualified. She went on to assess these four candidates in the areas of knowledge, abilities, and personal suitability. As a result, two candidates were placed on the eligibility list in the order of their ranking. The other two candidates, including the Applicant, were not placed on the list because Ms. Gosen decided that they failed under the personal suitability factor.
[5] The main assessment tool used by Ms. Gosen was a reference questionnaire supplemented by her own knowledge and experience. One referee was chosen for each of the four candidates and was asked to respond in writing to approximately 25 questions. Different people acted as referees for different candidates. Where they could not provide an adequate response to a particular question, Ms. Gosen purported to remedy the deficiencies with her personal knowledge of the candidates.
[6] Ms. Gosen could not find an appropriate referee for the Applicant so she designated herself as his referee because she had been his supervisor for about 6 months in 1995 and then his colleague for a further 6 months at a later date.
[7] Ms. Gosen did not rank the candidates in the areas of knowledge and abilities. Rather, the candidates were assessed on a pass/fail basis and she passed all four. According to Ms. Gosen, "they were all good to very good" and were "rated equally" as having passed on knowledge and abilities. These factors, therefore, had no weight in her relative assessment of the candidates.
[8] As for personal suitability, the candidates were assessed on a comparative basis. There were four sub-categories within the personal suitability factor: effective interpersonal relationships; motivation; judgment; and reliability. No numerical score was generated. Instead, Ms. Gosen relied on descriptive assessments, or narratives, provided by the referees and supplemented by her personal knowledge of the candidates.
[9] On this basis, Ms. Gosen made her final decision: Ms. Helen Sand was considered the most qualified candidate and ranked No. 1; Ms. Tammy Sigurdson was ranked No.2; the Applicant and another candidate were not placed on the eligibility list as having failed to reach an average "satisfactory" score on personal suitability. According to Ms. Gosen, the Applicant's rating was "poor" in effective interpersonal relationships, motivation, and judgment, and "satisfactory" in reliability.
[10] As a result of the selection, Ms. Helen Sand was appointed to the Position. Her term of appointment was thereafter extended.
DECISION UNDER REVIEW
[11] The Applicant appealed to the Appeal Board under s. 21 of the PSEA, alleging that the selection procedure was flawed and failed to conform to the merit principle codified in s. 10(1) of the PSEA:
| 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. |
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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, 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. |
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[12] The appeal was heard on January 16, 2002, by the Chairperson and one-member panel of the Appeal Board. In its Decision dated January 23, 2002, the Appeal Board dismissed the Applicant's appeal.
[13] The Appeal Board found that the selection procedure employed by Ms. Gosen left much to be desired:
[T]he documents provided did not establish the required evidentiary framework. The manner in which the personal suitability of candidates was assessed was not set out adequately
... the selection board could have been much more transparent in the documentation which was prepared.
[14] The Appeal Board determined, however, that the deficiencies identified were "not fatal to the process in this case," because "there is no requirement that the evidentiary framework be entirely in writing," and nor does the law require that "the most fair process be used, or that infallible methods be adopted" [emphasis in the original]. The Appeal Board concluded that the selection procedure, while imperfect, met the "bare legal requirements" set out in the PSEA.
ISSUES
[15] The Applicant raises the following issues:
Did the Appeal Board err in law in concluding that the absence of a comparative assessment of the candidates' knowledge and abilities did not violate the merit principle?
Did the Appeal Board commit a reviewable error in concluding that the procedure employed in the assessment of the candidates' personal suitability did not violate the merit principle?
ANALYSIS
What is the standard of review to apply to the Decision of the Appeal Board?
[16] In several cases, the pragmatic and functional approach has been applied to decisions of the Appeal Board of the Public Service Commission with somewhat varying results.
[17] One and the same board or tribunal may be confronted with questions of law, of fact, and of mixed fact and law and I consider that the nature of the question in each case is important in deciding the appropriate standard of review.
[18] In this case, I regard the first issue raised by the Applicant as a question of law: does the merit principle require a comparative assessment of the various and discrete components under knowledge and abilities, or is a pass/fail assessment sufficient? This question concerns the identification of the correct legal principle to apply and is, in my opinion, a question of law.
[19] On a question of law, I believe the case law teaches that the appropriate standard of review is correctness: Boucher v. Canada (Attorney General) (2000), 252 N.R. 186 at para. 7 (F.C.A.); Hains v. Canada (Attorney General), [2001] F.C.J. No. 1238 at para. 25 (QL) (T.D.).
[20] The second issue raised by the Applicant concerns whether the procedure used by the Selection Board in this case to assess personal suitability violated the merit principle and whether the Appeal Board was correct in its conclusions in this regard. In other words, was the merit principle violated on the facts. I regard this as a question of mixed fact and law and my review of the jurisprudence suggests that a pragmatic and functional analysis will result in a choice of reasonableness simpliciter as the appropriate standard. See Hains, supra; The Queen v. Khan et al., [1981] 2 F.C. 454 (C.A.); A.B. v. Canada (Public Service Commission Appeal Board) (1996), 115 F.T.R. 54 (T.D.); and Canada (A.G.) v. Pearce, [1989] 3 F.C. 272 (C.A.).
Did the Appeal Board err in law in concluding that the absence of a comparative assessment of the candidates' knowledge and abilities did not violate the merit principle?
[21] On this issue, the Appeal Board made the following material findings:
...
8. In the case of knowledge and abilities, candidates were marked only on a pass/fail basis, as the emphasis for the Organized Crime Portfolio was personal suitability. Ms. Gosen testified that she was satisfied that all candidates exceeded what was required for knowledge and abilities, so they all received a "pass". For personal suitability, candidates received ratings of either "poor", "satisfactory" or "good" for each of the four subfactors. No subfactor was non-compensatory, so in order to pass personal suitability only an aggregate rating of "satisfactory" was required.
...
23. The assessment of knowledge and abilities in this competition was unusual in two respects. Firstly, there was no way to determine the relative competence of candidates in those factors. I do not agree, however, that this situation is analogous to what occurred in either Teifenbrunner or Boucher and McBride. In the former, the selection board did not consider the knowledge factor at all in its assessment. In the latter, knowledge was considered, but failing knowledge overall did not mean that the candidate could not succeed in the competition. Here, knowledge and abilities were considered, and candidates had to pass.
24. The second unusual aspect of the assessment of knowledge and abilities was that it relied entirely on reference checks and personal knowledge, rather than selection tools such as examinations and interviews which require candidates to demonstrate their qualifications to the selection board. The selection tools used were weak, but I am satisfied that the approach was reasonable given the relative importance of personal suitability to this position, and the personal knowledge of the selection board chair that all four candidates possessed the knowledge and abilities which were required.
...
[22] Having made these findings, the Appeal Board concluded there was no violation of the merit principle in this case.
[23] The first point about these findings by the Appeal Board is that what it calls the "relative importance of personal suitability to this position" is nowhere identified in the statement of qualifications for the postings or in the advertisement. My review of the record suggests that, because she was satisfied that all four candidates exceeded the basic requirements for knowledge and abilities, Ms. Gosen gave them all a pass in these categories and then proceeded to base her final selection on a comparative assessment of personal suitability.
[24] So, in my opinion, the Appeal Board clearly found that no relative or comparative assessment of candidates was made by the Selection Board under knowledge and abilities. The only assessment which involved rating and ranking was in the category of personal suitability.
[25] The Applicant submits that this scheme violates the merit principle by failing to evaluate the relative merit of candidates: "If two or more candidates are only ranked as a 'pass', it is impossible to determine which is the best and why." In support of his position, the Applicant cites several cases, the most relevant and significant of which are Tiefenbrunner v. Canada (Attorney General), [1992] F.C.J. No.1021 (QL) (T.D.), Boucher v. Canada (Attorney General) (2000), 252 N.R. 186 (F.C.A.), and Carroll v. Canada (Attorney General), [2000] F.C.J. No.1439 (QL) (T.D.).
[26] The same argument was raised before the Appeal Board, but did not succeed. The Appeal Board distinguished the cases on their facts. In Tiefenbrunner, for instance, one of the factors advertised as a qualification for the position in question, namely knowledge, was not considered in the selection process. Hugessen J. held that it was a violation of the merit principle to ignore one of the stated factors in the assessment of the candidates' merit. Likewise, in Boucher, supra, a few candidates failed on the knowledge factor, but were considered eligible anyway. The Court stated at para. 8 that the Selection Board "cannot change the advertised qualifications by eliminating one or more of them."
[27] In the case at bar, however, the Appeal Board noted that the factors of knowledge and abilities were not ignored or eliminated. They were considered in the selection process, and each candidate had to pass in order to be placed on the eligibility list.
[28] But the Applicant says this is not enough. He says the merit principle requires a discrete assessment and comparative analysis in each of the sub-categories under knowledge and abilities and the pass/fail assessment that was alleged to have taken place in this case does not satisfy the jurisprudence on point.
[29] The Applicant refers the Court to various decisions as authority for the proposition that relative merit is the essence of a system designed to ensure that the best persons possible will be found for the various positions in the public service. This means that, on the present facts and bearing in mind the written qualifications that were posted for the Position, the candidates had to pass each of the discrete factors referred to in the advertisement and they had to be assessed on each of those factors.
[30] Some of the principal cases relied upon by the Applicant can be distinguished from the present case. In Laberge v. Canada (Attorney General), [1988] 2 F.C. 137 (C.A.), the question was defined as being "whether a Department which has determined the duties attached to a position can, in a competition held to fill that position, require a selection board responsible for administering a competition to consider the abilities of various candidates in terms of only some of the position's requirements." The answer to this question is, of course, no. But saying that some requirements cannot be left out is not the same thing as saying that assessment and ranking must take place at the subcategory level. In this case, the evidence suggests that Ms. Gosen considered each of the factors under knowledge and abilities but she felt there were no meaningful distinctions to be drawn between the relative merits of the candidates in those categories. So she gave them all a pass and went on to personal suitability. And the Appeal Board did not find that she left any of the factors out. It found that, under knowledge and abilities "there was no way to determine the relative competence of candidates in these factors," and "[h]ere, knowledge and abilities were considered, and candidates had to pass."
[31] The question before this Court is whether, as a matter of law, it is sufficient to merely consider knowledge and abilities and award a pass or whether a comparative assessment of sub-categories is also required.
[32] Under Tiefenbrunner v. Canada (Attorney General), [1992] F.C.J. No. 1021, the knowledge factor was not considered at all, so that it is hardly surprising that the Federal Court of Appeal found an error of law had occurred.
[33] In Carroll v. Canada (Attorney General), [2000] F.C.J. No. 1439, Tremblay-Lamer J. found that, as in Tiefenbrunner, "given the duties and statement of qualifications for the position, it was a clear duty of the selection board to assess the candidate's relative merit on a critical element of the position."
[34] This, of course, begs the question of what is a "critical" element of the position. If education and abilities are considered but there is no relative assessment of subcategories, does this mean that a critical element has not been assessed and, in assessing a critical element, is it sufficient to say, as Ms. Gosen appears to have said in the case at bar, that there is little to distinguish the candidates in these categories and selection can be based on personal suitability.
[35] The point at issue comes into direct focus in Nelson v. Canada (Attorney General), [2001] F.C.J. No. 694 (T.D.) where Muldoon J. has the following to say on this matter at paragraph 28:
28. The respondents submit that the appropriate test is whether the selection board reasonably formed the opinion that the candidates met the knowledge factor as a whole, not whether they met each of the subfactors individually. Not so. That qualifications are listed under rubrics of "Knowledge" or "Personal Suitability" does not diminish the importance of each one. Each discrete qualification must be evaluated because each one is essential and independent of the others.
[36] This appears to me to be clear authority for the Applicant's contention that the merit principle requires that "each discrete qualification must be evaluated." This was recently affirmed by Snider J. in Carty v. Canada (Attorney General), [2003] F.C.J. No. 1712, 2003 FC 1338 (T.D.) who held that "there must be an evaluation of each qualification."
[37] The Respondent in the case at bar contends that Ms. Gosen, in fact, fulfilled this requirement because she devised questions related to each of the sub-categories and, based upon the answers from the referees and her own knowledge she gave each of the candidates a pass. The Respondent argues that, in fact, Ms. Gosen considered each of the sub-categories and ranked each candidate equally.
[38] But the Decision under review is that of the Appeal Board which clearly assumes, in my opinion, that "there was no way to determine the relative competence of candidates" in the knowledge and abilities categories and that, in this case, although knowledge and abilities were considered, it was sufficient to award the candidates a pass.
[39] In my opinion, the case law cited merely provides examples of the application of what must be the guiding principle in each case i.e. did the Appeal Board satisfy itself that, on the basis of the qualifications established for the position, the manner of selection was one that permitted an assessment of the relative merits of the candidates?
[40] In the case at bar, the Appeal Board said that, on the facts of this case, relative merit was established without a comparative assessment of the sub-categories under knowledge and abilities and it was sufficient for Ms. Gosen to simply award the candidates a pass in these categories.
[41] There is nothing in the stated qualifications for the Position that says knowledge and abilities should be treated in this way and that, provided a basic level in those categories is satisfied, the Selection Board should concentrate upon personal suitability.
[42] It would have been different, in my opinion, if the Selection Board had considered and compared the candidates in each of the sub-categories and concluded that, following a meaningful and cogent analysis, it ranked them equally in these categories. But my reading of the evidence is that this is not what happened here and the Appeal Board itself appears to be of the same view.
[43] Consequently, on this issue, I conclude that the Appeal Board erred in law when it concluded that the "bare legal requirements" were met in this case even though relative competence under knowledge and abilities was not assessed and that it was sufficient that the candidates be awarded a pass in these categories.
Did the Appeal Board commit a reviewable error in concluding that the procedure employed in the assessment of the candidates' personal suitability did not violate the merit principle?
[44] The candidates were assessed on a comparative basis in each of the four designated elements of personal suitability: effective interpersonal relationships; motivation; judgment; and reliability. The Applicant submits that this assessment was tainted by a lack of clear criteria, clear ratings, and a clear evidentiary framework. In particular, the Applicant notes a number of problems with Ms. Gosen's assessment procedure.
[45] The Applicant submits that it remains unclear which grading scale Ms. Gosen was using in her evaluation of the candidates in each of the four components of personal suitability.
[46] In addition, the Applicant submits that the evidence was confusing with regard to the compensatory or non-compensatory nature of the assessment in each of the four components of personal suitability. The Applicant says that Ms. Gosen contradicted herself as to whether a rating below satisfactory in one of the components could be compensated by a higher than satisfactory rating in other components.
[47] Furthermore, the Applicant notes that Ms. Gosen did not formally record the results of her assessment in grading scale terms. There was no documentary evidence demonstrating that Ms. Gosen used any grading scale or to show how the referees' narratives were transformed into the ranking of candidates.
[48] In these circumstances, the Applicant argues "one cannot find a single common thread which would ensure that all candidates were measured by the same criteria and on the basis of the same grading scale." As a result, no consistent and fair ranking of the candidates was achieved.
[49] The Appeal Board referred to the decision of McGillis J. in Field v. Canada (Attorney General) (1995), 93 F.T.R. 158 and actually quoted the following words:
In the present case, there was an absence of any cogent evidence, either oral or documentary, in the record to establish the manner in which the merit of the candidates was assessed by the Selection Board on the qualification of personal suitability. In the absence of an appropriate evidentiary framework, the Appeal Board could not have properly determined that the merit principle was respected in the assessment of the candidates on personal suitability. (Emphasis added.)
[50] The Appeal Board appears to find that the cogent evidence for the manner in which the merit of the candidates was assessed by the Selection Board under the category of personal suitability, and the appropriate evidentiary framework used to justify an application of the merit principle, in this case can be found in Ms. Gosen's oral testimony at the hearing in which she explained what she had done.
[51] The Respondent argues that the situation in the case at bar is different from Field, supra, because here we have Ms. Gosen's actual analysis as supplemented by her testimony before the Appeal Board, and if we look at this in total it provides the cogent evidence and evidentiary framework for the way in which merit was assessed. The Respondent also points out that it is not necessary to reduce the assessment process to a formal mathematical exercise because that would not assist the Appeal Board any further in gauging what Ms. Gosen did and whether she satisfied the law on the basis of the narrative approach she said she used.
[52] I believe it is worth taking a look at Ms. Gosen's testimony on how she handled the Applicant in this category:
The Chairperson: Is there a rating with numbers or words or something?
Ms. Allard: We did not use numbers. We used narrative, whether it be excellent, good, satisfactory, fair or poor.
The Chairperson: Is that in these documents?
Ms. Gosen: I don't think I actually wrote that down in those words. I just wrote in my Board Report that he was not qualified in those areas.
The Chairperson: That is this?
Ms. Gosen: That would be Exhibit D-5.
The Chairperson: Maybe I don't have the same one. It just says Roy Gawlick did not qualify.
Ms. Gosen: Did not qualify, yes. It was an overall assessment that he failed the personal suitability. Given the subtotal of all the checks, he did not meet the basic requirements in the first three categories and the fourth one was found satisfactory.
The Chairperson: The first three are effective interpersonal relationships, judgment and motivation?
Ms. Gosen: And motivation, yes.
The Chairperson: Were each of those marked on a pass/fail basis then, or was it just a global mark?
Ms. Gosen: It is a global. We did not declare any of them non-compensatory. Each one was assessed on its own in terms of good, satisfactory, fair, poor. That is how I categorized them. Adding those all together, overall he came out with a poor in the three and a satisfactory in the last one.
The Chairperson: So none of them was non-compensatory. What did somebody have to do to pass?
Ms. Gosen: They would have to score satisfactory overall.
The Chairperson: That is based on a weighting of how they scored on each of the four.
Ms. Gosen: On each one of the four, yes.
The Chairperson: What did he score on each of the four?
Ms. Gosen: Poor on the first one. Poor on the second one. Poor on the third and satisfactory on the fourth.
The Chairperson: When you weigh those together, you get poor.
Ms. Gosen: Poor, yes.
The Chairperson: You need satisfactory.
Ms. Gosen: We need satisfactory, yes.
Mr. Gawlick: Which one was satisfactory?
Ms. Gosen: Reliability.
The Chairperson: This poor, satisfactory and so on is what you were thinking at the time. This is not how it has been characterized to describe it. This was your decision when you decided that he wasn't qualified.
Ms. Gosen: That was my thinking at the time, yes.
[53] Ms. Gosen went on to explain why she rated the Applicant as poor under effective interpersonal relationships, judgment and motivation (he was satisfactory under reliable) and why she gave him an overall "poor" rating. She explained that the Applicant had not followed the procedures prescribed by law and policy under the mail seizure program, and that he had not carried his appropriate share of the mail seizure work. She also said she had heard negative comments from people who worked with him about how he interacted with his peers.
[54] On the other hand, Ms. Gosen explained that she received positive comments about the two candidates she classified as eligible from their referees which confirmed her own personal knowledge of all three candidates. There were no formal interviews.
[55] On this issue the Appeal Board specifically found that "the documents provided did not establish the required evidentiary framework," and that "the manner in which the personal suitability of candidates was assessed was not set out adequately."
[56] Nevertheless, the Appeal Board expressed the opinion that these problems were solved because there was oral evidence from Ms. Gosen in this case.
[57] I agree with the Respondent that Ms. Gosen does explain the narrative approach she took and the negative opinions she used to rate the Applicant as "poor" overall under personal suitability. But there are two troubling aspects to the methodology that was employed. The two candidates who qualified were assessed by separate referees who appear to have had an ample opportunity to observe the people they are describing. In the Applicant's case, he was assessed by Ms. Gosen alone who had supervised him back in 1995 and had worked with him for a short time in a more recent post.
[58] Secondly, the Appeal Board appears to say in its Decision that the inadequacies of the process deployed to assess personal suitability in the Applicant's case can be excused, or offset, because "staffing values such as competency, non-partisanship, fairness and transparency must be balanced by selection boards against the management principles of flexibility and affordability/efficiency in order to achieve the objectives of the Act."
[59] As I read Field, supra, and the PSEA, I nowhere gain the impression that the need for cogent evidence and an appropriate evidentiary framework can be compromised by "management values" when a selection board is called upon to make a decision of this nature. Flexibility is required, but if there is no cogent evidentiary base, the exigencies of the occasion cannot excuse the defect. I realize that the Appeal Board does go on to say that "it is clear from the Act and the case law that selection boards have greater flexibility in devising selection processes and tools," but there is an unpalatable suggestion in the Appeal Board Decision that it was willing to excuse the lack of a documented evidentiary framework and the failure to set out clearly the manner of assessment adequately because of competing management values.
[60] Taking all of these factors into account, I am of the view that the cogent evidentiary base for the Selection Board decision was missing in this case and that there was nothing to show that, in the category of personal suitability, the candidates were measured by the same criteria and that a consistent and fair ranking was achieved. I believe the Appeal Board acknowledged this but felt inclined to excuse it because of the demands of the situation under which the competition was conducted.
[61] Consequently, I have come to the conclusion that the Appeal Board did commit a reviewable error in concluding that the procedure employed in the assessment of the candidate's personal suitability did not violate the merit principle. The bare legal requirements of the merit principle were not met on this issue.
ORDER
THIS COURT ORDERS that
1. The Application for judicial review is allowed.
2. The decision rendered January 23, 2002, is set aside and the matter is referred back to a differently constituted Appeal Board to be dealt with in accordance with the reasons of this Court.
3. The Respondent shall pay to the Applicant the costs of this application.
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JFC
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-305-02
STYLE OF CAUSE: Roy Gawlick v. Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 8, 2003
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Russell
DATED: May 4, 2004
APPEARANCES:
Andrew Raven for the Applicant
J. Sanderson Graham for the Respondent
SOLICITORS OF RECORD:
Andrew Raven (if law firm, put instead) for the Applicant
Toronto, Ontario
Mr. Morris Rosenberg for the Respondent
Deputy Attorney General of Canada