Date: 20021004
Docket: T-1362-01
Neutral citation: 2002 FCT 1043
Ottawa, Ontario, Friday the 4th day of October 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
RONDA SARGEANT and RAYMOND MACIEL
Applicants
- and -
ATTORNEY GENERAL OF CANADA
(CANADA CUSTOMS AND REVENUE AGENCY)
FRANK LEWIS, ENZO MONTINI, JOHN LIBERATORE,
JAY LOCKE and MATT DARKER
Respondents
[1] A single issue is raised in this application for judicial review of an interim decision of an Independent Third Party Reviewer ("Reviewer") appointed under the staffing program of the Canada Customs and Revenue Agency ("CCRA"). The issue is whether the Reviewer misconstrued her jurisdiction and breached principles of natural justice in refusing to order disclosure of certain documents.
BACKGROUND
(i) The staffing program
[2] The CCRA is an agency created by the Canada Customs and Revenue Agency Act, S.C. 1999, c. 17 ("Act"). Subsection 54(1) of the Act requires the agency to "develop a program governing staffing, including the appointment of, and recourse for, employees."
[3] The staffing program developed pursuant to subsection 54(1) of the Act provides that each selection process comprises three principal stages: a review of the applicants against the prerequisites for the position; assessment of those who meet the prerequisites against the qualifications for the position; and placement of one or more qualified persons. The CCRA appoints a selection board to conduct the first two stages of the selection process. Placement decisions are made by managers responsible for staffing positions.
[4] At the prerequisite stage, the selection board reviews each application for the prerequisites listed in the Notice of Job Opportunity and on the accompanying Statement of Staffing Requirements. Only those candidates who meet the prerequisites will be considered for assessment.
[5] During the second stage, the assessment stage, the selection board assesses the qualifications of candidates who meet the prerequisites against the criteria for the position. The selection board does not compare the candidates against one another, and does not rank them according to their relative merit. Candidates who are found to be qualified for the position enter a pool of qualified candidates, from which the CCRA may select persons for placement.
[6] When a decision is made to staff a position, the hiring manager makes a placement decision based on established job specific requirements which are linked to the business needs of the CCRA. In reaching his or her decision, the manager may apply some or all of the placement criteria listed in the Statement of Staffing Requirements. Whether some or all of the criteria are considered depends upon the business needs of the agency at the time of placement.
[7] Candidates dissatisfied with decisions made at each stage of the selection process may seek recourse in accordance with the Staffing Program. In all recourse proceedings, the issue is whether the candidate was treated in an arbitrary manner during the particular stage of the selection process. For the purpose of recourse, "arbitrary" is defined as follows:
"In an unreasonable manner, done capriciously; not done or acting according to reason or judgment; not based on rationale, on established policy; not the result of a reasoning applied to relevant considerations; discriminatory (i.e. difference of treatment or denial of normal privileges to persons because of their race, age, sex, nationality, religion, or union affiliation."
[8] The recourse provided at the placement stage for candidates who qualify and are not selected for placement begins by a candidate requesting an "Individual Feedback" meeting with the manager who made the placement decision. If the matter is not resolved following that meeting, the employee may seek "Decision Review" before the supervisor of the hiring manager or an "Independent Third Party Review" by a Reviewer from outside the CCRA. Regardless of the mode of recourse selected at the placement stage, the review is limited to the placement decision and does not include review of the results of the prerequisite or assessment stages.
[9] The CCRA has established "Guidelines for Submitting and Processing a Complaint for an Independent Third Party Review" ("Guidelines"). For the purpose of this application relevant provisions are that the Reviewer is directed to "give expression to the principles of procedural fairness" and to "determine the relevancy of the information provided by the parties". The Guidelines in particular provide that:
· The reviewer will:
[...]
- determine the relevancy of the information provided by the parties. The reviewer will not have the power to subpoena witnesses. The parties may be required to support their cases through documentation and should be prepared to share documents at the reviewer's discretion. On staffing matters linked to a selection process, the reviewer will be limited to examining the events and decisions related only to the placement phase and not to those related to the assessment or prerequisite phases.
[10] The Guidelines further provide:
· Access to personal information will be governed by the Privacy Act and the Access to Information Act. Such information would normally be provided by the manager. Personal information regarding the complainant will be available to the complainant and the reviewer. Personal information regarding other employees would be available to the complainant and the reviewer as warranted, i.e. if relevant with respect to the nature of the complaint and approved by an Agency official. [underlining added]
(ii) The current application
[11] The applicants in this proceeding are auditors with the CCRA in the AU-1 classification. In October 2000 they responded to a notice of job opportunity for promotion to the position of AU-2 Investigator/Auditor.
[12] Attached to the notice of job opportunity was a statement of staffing requirements which set out the prerequisites for participation in the assessment phase, the assessment standards, the conditions of employment and the placement criteria. The statement of staffing requirements informed that placement decisions would be based on one or more of the following criteria:
Pertinent experience related to the position. Degree of qualification related to the position. Valid driver's licence.
[13] Twenty-eight people submitted applications in response to the notice of job opportunity. The selection board found that fourteen of these individuals, including the applicants, met the prerequisites for the position. Four of those fourteen individuals then withdrew from the selection process before the assessment stage.
[14] The selection board assessed the 10 remaining candidates against the assessment standards by requiring them to write an examination and to prepare a 750-word written submission. The selection board also interviewed the 10 candidates. The selection board then determined that seven of the candidates, including the applicants, met the standard of competency and were qualified for the position.
[15] The CCRA then placed all seven qualified candidates into a "pre-qualified pool" that was valid for six months. The applicants were advised of this by letters dated March 1, 2001 which in material part were as follows:
The Selection Board has completed the assessment phase of this selection process.
I am pleased to inform you that you have met the assessment criteria required for this position. As a result, you will be placed in a pre-qualified pool which may be used to staff current and/or future vacancies. This pool will remain valid until September 1, 2001. You will be notified of any placement decisions made as a result of this process.
If you have any questions regarding your assessment, please contact Sal Bayoumi at [...]. You have 7 calendar days to request individual feedback from the selection board. Requests for feedback must be made on a "Request for Individual Feedback" form. Forms are available from Human Resources or on the Infozone under "Forms and Publications." If you have any additional concerns once you have received individual feedback, you may request a decision review. Requests for decision review must be made using the appropriate form within 7 calendar days of receiving individual feedback.
If you have any additional questions, please call me at [...].
[16] During that six-month period, the Assistant Director of the Investigations Division for the Toronto West Tax Services Office decided to fill five Investigator/Auditor positions with candidates from the pre-qualified pool. He exercised his discretion to apply two of the three placement criteria: possession of a valid driver's license and the degree of qualification related to the position.
[17] The Assistant Director decided to measure the "degree of qualification" as determined by the highest overall scores achieved during the assessment stage. The Assistant Director therefore asked that those five candidates who had the highest overall scores at the assessment stage be offered appointments. The Assistant Director did not review the assessments of any of the candidates.
[18] The applicants were informed by letters dated April 6, 2001 that five others had been selected for placement and they were advised of their right to seek recourse in accordance with the staffing program.
[19] Each applicant then requested an "Individual Feedback" meeting with the Assistant Director. On April 26, 2001, they also requested full disclosure of all materials utilized during the selection process including notes and assessment documentation for all candidates who were assessed, reports prepared by the selection board relating to each stage in the process, and the written rationale for the choice of placement criteria and the placement decisions.
[20] In response, the applicants were informed that the material concerning their own assessments could be made available to them during the "Individual Feedback" meetings. Assessment information about other candidates would not be released as it was said not to be relevant to the placement decision.
[21] At the "Individual Feedback" meetings, the Assistant Director discussed the placement criteria he considered and explained the reasons for his placement decision. He also provided the applicants with an opportunity to review their own examination materials which included the questions, suggested answers, their own answers and the scoring key.
[22] Subsequently, each applicant submitted a formal request for Independent Third Party Review. An independent arbitrator was appointed to conduct the review and afterwards a case conference was scheduled to deal with preliminary matters.
[23] At that case conference the applicants' representative requested disclosure of all of the assessment materials for the applicants and the five candidates who were placed. The representative also asked for a detailed summary of the qualifications of the selection board members to assist him in determining whether they were qualified to carry out the assessment stage. The CCRA opposed disclosure on the grounds that it was not relevant to the placement decision and involved the disclosure of personal information protected by subsection 8(1) of the Privacy Act, R.S.C. 1985, c. P-21.
THE DECISION OF THE REVIEWER
[24] The Reviewer held that her jurisdiction was limited to a review of the placement stage and that she was not authorized to review the assessment stage. She therefore concluded that the assessment documents were not relevant to her review and that she could not order their disclosure.
[25] More particularly, in her written decision the Reviewer wrote:
I am governed by the provisions of the Directives on Recourse for Staffing as well as the Guidelines for Submitting and Processing a Complaint For an Independent Third Party Review (ITPR). The Guidelines state that "[o]n staffing matters linked to a selection process, the reviewer will be limited to examining the events and decisions related only to the placement phase and not to those related to the assessment or prerequisite phases." Whatever may be the case under another regime, my jurisdiction in reviewing staffing decisions under the Guidelines is limited, and I am not authorized to inquire into the assessment phase of a selection process. It was clearly the intention of the drafters of these policies to provide a narrow right of review, and I am obliged to work within these constraints.
Since I am not authorized to review the assessment of employees, I find that documents which relate to the assessment of employees other than the requesters are not relevant to this case. This finding also applies to information about the qualifications of the selection board members.
However, I am of the view that the documents showing the scoring summaries for the candidates are at least arguably relevant. Management is clear that it relied on this for the placement, and chose the five candidates who placed highest overall in the assessment. As a result, I am of the view that it is reasonable for the requesters to ask to review the scoring summaries, so they can assess whether this information supports management's decision.
[26] In response to the Reviewer's decision that the summary of the scores for all candidates was relevant to the question of whether management selected the five candidates who placed highest overall in the assessment, the CCRA agreed to provide the applicants with a copy of the summary.
THE ISSUE
[27] As noted above, the single issue raised in this application is whether the Reviewer committed a reviewable error in determining that the documents were not relevant, and in so doing breached the principles of natural justice.
[28] At the oral hearing of this application for judicial review, counsel for the applicants advised that he is not pursuing on this application the issue raised in the written submissions as to whether the recourse policies of the CCRA violated both the principles of natural justice and subsection 54(1) of the Act.
STANDARD OF REVIEW
[29] The parties agree that the decision of the Reviewer was one on a question of law or a matter of jurisdiction which should be reviewed on the standard of correctness.
ANALYSIS
[30] In opposing the application for judicial review, the Attorney General argues that the staffing program establishes enforceable rules which an independent Reviewer is bound to interpret and apply. Because the staffing program provides that the independent third party review is limited to review of decisions made at the placement stage, an independent Reviewer has no jurisdiction to review decisions made at the prerequisite or assessment stage. By the time a placement decision is made, the assessment stage is complete and the hiring manager does not review the assessment stage or undertake a new assessment.
[31] I do not understand those principles to be in dispute in this proceeding.
[32] The Attorney General states that the only decision before the Reviewer in this case was whether the hiring manager acted arbitrarily in making appointments on the basis of the results of the assessment. Therefore, it follows that the Reviewer had no jurisdiction to review the assessment process.
[33] This submission is correct in the limited sense that the result of the assessment phase undoubtedly could not be revisited after the fact by the Reviewer in the sense of removing candidates from, or adding candidates to, the pre-qualified pool. However, in my view, this submission fails to take into account that in this particular case, selection by the manager of five candidates for placement on the basis of their marks at the assessment phase, as a matter of fact, did create a linkage between the two stages.
[34] In my respectful view, when the Reviewer interpreted the direction in the Guidelines that the Reviewer was "limited to examining the events and decisions relating only to the placement phase and not to those related to the assessment or prerequisite phases" so as to preclude review of the assessment scores which as a matter of fact formed the basis of the placement decision, the Reviewer misconstrued the Guidelines and her own jurisdiction. Recourse to the assessment results was required, not to provide recourse at the assessment level or to review the decision at the assessment stage, but rather to provide meaningful recourse at the placement level. The review of the assessment score at the placement stage would be limited to events and decisions as they related to the score and its use in the placement phase.
[35] This is so because, apart from the requirement that the candidates possess a driver's license, the appointments made at the placement stage were based solely upon the candidates' relative performance at the assessment stage. The Reviewer recognized this to a limited extent by directing that the scoring summaries prepared at the assessment stage be produced.
[36] In concluding that the Reviewer erred, I have had particular regard to the criteria which the Reviewer was to apply to the impugned placement decision. That criteria was whether an employee exercising recourse was treated in an arbitrary manner.
[37] In Buttar v. Canada (Attorney General) (2000), 186 D.L.R. (4th) 101 the Federal Court of Appeal considered a decision of an appeal board under subsection 10(2) of the Public Service Employment Act, R.S.C. 1985, c. P-33. The appeal board had considered a decision of a departmental review committee whose mandate had been to assess applications against a classification standard. The appeal board held that it lacked jurisdiction to consider whether the relevant standards were applied in a consistent manner to all candidates. In considering this position, the Court of Appeal wrote at paragraphs 23 and 24:
The problem, however, is that the appeal board perceived a limitation to its jurisdiction that precluded it from even considering the possibility that the selection standards were inconsistently applied. It is conceded by counsel for the Attorney General that in a selection process of the kind undertaken here, a failure to apply the standards consistently would offend the merit principle. Thus the appeal board failed to discharge its mandate, which is to guard the integrity of the application of the merit principle. While it has been said that an appellant cannot claim more than the integrity of the application of the merit principle, it is equally true that an appellant should not be obliged to settle for less.
In the circumstances of this case, the validity of the appointment of Dr. Whitehouse could not fairly be determined without considering whether his qualifications were assessed on the basis of the same standards as were applied to other candidates simultaneously seeking promotion to the same level. The appeal board erred in declining to consider that issue.
[38] While the staffing program under the Act is markedly different from that before the Court in Buttar, I do take assistance from the decision to the extent it reflects that even in a system where candidates are assessed against a standard and not one another, it is relevant to consider whether standards were consistently applied. While in Buttar the relevant principle was the merit principle, in the present case inconsistent application of the assessment criteria would result in a decision which would be arbitrary within the definition previously set out. To that extent the Buttar decision is therefore helpful.
[39] Further support for this conclusion is found in those portions of the Guidelines which require the Reviewer to give expression to the principles of procedural fairness and which note that personal information regarding other employees would be available as warranted. Procedural fairness requires that participants have a meaningful opportunity to present their case fully and fairly. A full and fair presentation of the applicants' case would require access to information from the assessment stage as that relates to the assessment scores given to each candidate.
[40] To conclude on this point, I am satisfied that by finding that the documents relating to the assessment of other employees were not relevant, the Reviewer precluded consideration of whether the standards at the assessment stage were consistently applied. This substantially deprived the applicants of access to effective recourse.
[41] I have considered the Attorney General's submission that the applicants were entitled to seek recourse at an earlier stage by seeking feedback with respect to the scores awarded to them at the assessment stage. It was said that in this way they could have sought to maximize their scores. I do not find this submission persuasive for the following reasons.
[42] First, with respect to those scores, as can be seen from the letter which is set out above, the applicants were simply told that Human Resources was "pleased to inform you that you have met the assessment criteria" so that they were placed in a pre-qualified pool. There was nothing to alert the applicants that there was anything about which to seek recourse, and they were only told that if they had any questions regarding their assessment they were to call a specified individual and that any individual feedback should be requested within seven days.
[43] There was nothing to alert the applicants that a test score at this stage would be relevant or determinative at a later stage. Indeed, such score would have had no relevance but for the decision of the Assistant Director to have the degree of qualification determined by the highest overall scores achieved in the assessment stage. The Assistant Director was not obliged to measure the degree of qualification by simply looking at assessment level scores. Further, annex E to the staffing program provides that persons hiring may set priorities around the placement criteria based on business needs. It follows that the decision to hire need not have been based solely upon the degree of qualification.
[44] Second, any review at the assessment stage could only relate to an applicant's own score because the staffing program prohibited access at that stage to anything, but his or her own personal assessment information. While that makes some sense at the assessment stage because an individual is only measured against the assessment criteria, in the present case, it ignores the possibility that the assessment standards were not applied consistently with the result that others received erroneously high scores. This becomes relevant when assessment scores are used for a purpose other than simply determining if an individual is entitled to enter a pre-qualified pool.
[45] I have also considered the arguments of the Attorney General that the staffing program meets the requirements of fairness and imports a system more like that found in the private sector. That may well be, but the fairness of the program per se is no longer at issue in this proceeding. Comparison to the private sector is not relevant where the staffing program has been improperly interpreted.
[46] For these reasons, the application for judicial review is allowed. Costs were not sought and no costs are ordered.
ORDER
[47] THEREFORE, IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the interim decision of the Independent Third Party Reviewer dated July 4, 2001 is hereby set aside.
2. The matter is remitted to a different Independent Third Party Reviewer for determination.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1362-01
STYLE OF CAUSE: RONDA SARGEANT AND RAYMOND MACIEL V. ATTORNEY GENERAL OF CANADA ET AL.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 23, 2002
REASONS FOR ORDER AND ORDER BY: THE HONOURABLE MADAM
JUSTICE DAWSON
DATED: October 4, 2002
APPEARANCES:
Mr. Dougald BrownFOR APPLICANTS
Mr. J. Sanderson GrahamFOR RESPONDENTS
SOLICITORS OF RECORD:
Nelligan O'Brien Payne LLPFOR APPLICANTS
Ottawa, Ontario
Mr. Morris RosenbergFOR RESPONDENTS
Deputy Attorney General of Canada