Ottawa, Ontario, November 21, 2005
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
CANADACUSTOMS AND REVENUE AGENCY
and
INDRA KAPADIA, LEO MERWIAK, IMRAN KHAN
and JEAN-MARC GUINARD
REASONS FOR ORDER AND ORDER
[1] The applicant asks the Court set aside a decision of an "Independent Third Party Review" ("ITPR") established pursuant to the applicant's internal staffing program with respect to the selection of two candidates as Audit Managers in the Hamilton Tax Services office and the Toronto West Tax Services office respectively. The selection process for these positions began on October 19, 2000. The decision of the Independent Third Party Review dated July 27, 2004 found that the respondent Ms. Kapadia, who was not selected for one of the two positions, had been treated in an arbitrary manner during the employment selection process. The Reviewer ordered the applicant revoke its selection of the two successful candidates, the respondents Merwiak and Khan, and "re-do" the employment selection process.
FACTS
The Selection Process
[2] The selection process for appointing competing candidates to audit manager AU-05 positions within the CCRA begins with disclosure of a Notice of Competition ("Notice") and consists of three stages: (1) the prerequisite stage; (2) the assessment stage; and (3) the placement stage. At the prerequisite stage, a "Selection Board" ensures only persons satisfying enumerated conditions comprise the pool of candidates whose qualifications are thereafter measured at the assessment stage. Placement decisions are made by the hiring manager (the "Manager"), who is charged with choosing which placement criteria set out in the Notice will be adopted, and applying them to select successful appointees. The placement stage is the only stage at issue in this application.
[3] On October 19, 2000 the CCRA posted a competition for positions of audit manager in the Hamilton and Toronto West Tax Services Offices. On November 13, 2001 Ms. Kapadia was placed in that position on an acting basis, which appointment was extended three times until May 2003. From July 31, 2001 to April 22, 2003 the CCRA made permanent and acting placements to the position from the candidate pool of which Ms. Kapadia was a part. On April 22, 2003 the CCRA awarded two final, permanent placements ("final placements") to the respondents Khan and Merwiak, after which the competition expired and Ms. Kapadia's candidacy was rejected. In his decision, the Manager Fred Webster selected candidates based on two of the four placement criteria set out in the Notice: (1) geographic location; and (2) the level of qualifications linked to work-specific requirements. In connection with the second placement criterion, the Manager chose to consider 6 of the 10 "qualification factors" from the assessment stage.
Recourse
[4] The CCRA staffing program provides unsuccessful candidates the opportunity to seek recourse. Ms. Kapadia sought "individual feedback" as required before requesting an ITPR on May 27, 2003. The ITPR provides for timely and informal staffing dispute resolution by rostered reviewers who are independent of the CCRA and satisfy specific education and experience criteria.
Decision of the Reviewer
[5] In her decision dated July 27, 2004 the Reviewer concluded Ms. Kapadia was treated in an arbitrary manner during the placement stage of the selection process, based on the following:
i. the Manager erred basing his placement decision on only 6 of 10 qualifications factors considered at the assessment stage;
ii. the Manager conceded the employment equity placement factor was used in some placements during the competition, but not the final placements, and failed to explain which circumstances warranted its discretionary use;
iii. the Manager improperly merged the team building and leadership qualification criteria, which decreased the weighting of each; and
iv. the CCRA created the appearance of injustice by allowing the Manager to chair the Selection Board at the assessment stage;
The Reviewer ordered the CCRA revoke its final placements to respondents Merwiak and Khan, and re-run the placement stage of the selection process in an impartial manner.
RELEVANT LEGISLATION
[6] The relevant legislation is the Canada Customs and Revenue Agency Act, S.C. 1999, c. 17 (the Act), in particular sections 53 and 54 which read as follows:
| Appointment of employees
53. (1) The Agency has the exclusive right and authority to appoint any employees that it considers necessary for the proper conduct of its business.
[...]
Staffing program
54. (1) The Agency must develop a program governing staffing, including the appointment of, and recourse for, employees.
|
Pouvoir d'embauche de l'Agence
53. (1) L'Agence a compétence exclusive pour nommer le personnel qu'elle estime nécessaire à l'exercice de ses activités.
[...]
Programme de dotation
54. (1) L'Agence élabore un programme de dotation en personnel régissant notamment les nominations et les recours offerts aux employés. |
The parties agree that the CCRA has developed its own Staffing Program, and is not governed by the Public Service Employment Act, R.S.C. 1985, c. P-33.
ISSUES
[7] I adopt as correct the issues as set out in the Respondents' Memorandum:
1. Did the Independent Third Party Reviewer make a reviewable error in concluding that the CCRA acted arbitrarily by dropping four qualifications when deciding which candidate to appoint at the placement stage?
2. Did the Independent Third Party Reviewer make a reviewable error in concluding that the CCRA acted arbitrarily in merging the qualifications of Team Building and Leadership when deciding which candidate to appoint at the placement stage?
3. Did the Independent Third Party Reviewer make a reviewable error in concluding that the CCRA acted arbitrarily in its decision not to use "Employment Equity" as one of the four placement criteria?
4. Did the Independent Third Party Reviewer make a reviewable error in concluding that the CCRA created an appearance of bias by allowing Mr. Webster to serve as both Chair of the Selection Board and the manager responsible for the placement stage?
5. Did the Independent third Party Reviewer exceed her jurisdiction in the remedy ordered?
STANDARD OF REVIEW
[8] Both parties agree that the standard against which to review a decision of an Independent Third Party Review, on a question of arbitrary treatment at the placement stage, is reasonableness simpliciter.
[9] The Court comes to the same conclusion. The Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 held at paragraph 26 that the Court deciding the appropriate standard of review must apply a pragmatic and functional approach.
[10] The first factor the Court must consider is the presence or absence of a privative clause or statutory right of appeal. The Act does not contain a privative clause or a route of appeal from ITPR decisions. The Staffing Program and the ITPR Guidelines are also silent. Accordingly, this factor is neutral.
[11] The second factor to consider is the relative expertise of the decision-maker. Reviewers have experience in employment matters, familiarity with CCRA staffing practices, and the benefit of assessing oral evidence and credibility, all of which favour greater curial deference.
[12] The third factor to consider is the purpose of the legislative provision. The purpose of the Act is to "transform Revenue Canadafrom a government department into a body corporate agent of the Crown." (Andersonv. Canada(Customs and Revenue Agency), (2003) 234 F.T.R. 227 (T.D.) at para. 58 per Dawson J., affirmed 2004 FCA 126.) In so doing, Parliament conferred discretion and autonomy on the CCRA in respect of its staffing regime, which includes the ITPR.
[13] The purpose of the ITPR is to resolve disputes during the employment selection process:
1. in an independent forum and according to rules established by the applicant's Staffing Program; and
2. resolve the dispute in an expeditious and final manner to encourage fair and timely employment placements.
The ITPR cannot become merely the first stage in a process that may lead to the Federal Court and the Federal Court of Appeal. The Court should not intervene even if it does not agree with the decision unless the decision is wrong on a question of law or not reasonably open to the ITPR on a question of mixed fact and law. The Court recognizes that predictability in the enforcement of dispute resolution provisions is an indispensable precondition to the employment selection process. This factor favours curial deference.
[14] The fourth factor is the nature of the question, whether it is one of law, fact, or mixed law and fact. The question of whether a staffing placement is "arbitrary" involves the application of a legal standard, the meaning of 'arbitrary', to the factual context specific to a complainant seeking recourse. This is a question of mixed law and fact. This factor favours deference.
[15] Applying the pragmatic and functional approach, the Court agrees that the standard of review is reasonableness simpliciter.
[16] The Supreme Court of Canada in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 explained at paragraphs 55 and 56 per Iacobucci J. when a decision is unreasonable:
¶ 55 A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere [...]
¶ 56 This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. [...] Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.
[Emphasis added]
[17] Accordingly, the Court will review the ITPR decision to determine if there is any "line of analysis within the given reasons" which could reasonably lead the ITPR to the decision in question. If any of the reasons are sufficient to support the conclusion in the sense that they stand up to a "somewhat probing examination", then the decision will not be unreasonable and this Court must not interfere. Moreover, the Court will not seize upon a mistake or element of the decision which could not affect the decision as a whole.
ANALYSIS
[18] In recourse proceedings before the independent third-party reviewer, the sole issue to be decided was whether the candidate Ms. Kapadia had been treated arbitrarily at the placement stage of the selection process. 'Arbitrary' in this context is defined in the Staffing Program as:
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.
The Independent Third Party Reviewer heard the oral evidence from the parties and their oral and written submissions. The Independent Third Party Reviewer concluded that the evidence demonstrated "a pattern of conduct and decision-making which was not based upon sound reasoning or relevant considerations and can at best be categorized as arbitrary". The ITPR concluded that the employment placement process in relation to the griever has been "so significantly flawed as to warrant an order that the present appointments of the two incumbents be and are hereby revoked and that the placement process be re-run". The question before the Court is whether the Reviewer's decision can withstand a somewhat probing inquiry.
[19] In reviewing this decision, the Court has concluded with respect to the five issues raised by the applicant for setting aside this decision:
Issue No. 1 - it was reasonably open to the ITPR to conclude that the applicant acted arbitrarily by ignoring four of the ten qualifications for the position when deciding which candidate to appoint at the placement stage. It is not fair or reasonable for the candidates found qualified by the Selection Board to allow the hiring manager at the placement stage to pick and choose amongst the ten qualifications for the position of audit manager in selecting the successful candidate for the position. This approach opens the door to favouritism, arbitrariness, and unfairness, and is contrary to the protection of fairness and objectivity ensured by the Selection Board stage;
Issue No. 2- the decision of the ITPR that the applicant acted arbitrarily in combining two important qualifications in deciding which candidate to appoint was not unreasonable. It makes no sense to combine two qualifications as one for the purpose of measuring the relative qualifications of the candidates. At the hearing, the applicant agreed that this was a mistake by the hiring manager;
Issue No. 3- the decision of the ITPR requiring that the applicant provide an explanation why it did not use the "employment equity criteria as one of the four placement criteria" would have been reasonable since the employment equity criteria had been used for other placements of women during the same time period as this employment selection process, but for the evidence of the hiring manager before the ITPR hearing that the employment equity criteria was not used because in 2003 there was no gap in the representation of women in the occupational groups for middle and other managers. In 2000, the Employment Equity Report for CCRA in the southern Ontario region showed that there was a gap of ten women in this occupational category. Therefore the Court agrees with the applicant on this issue, but concludes that this mistake or element of the decision would not affect the outcome of the decision as a whole. Accordingly, the Court will not set aside the decision on this basis;
Issue No. 4- the decision of the ITPR that the applicant created an appearance of bias by allowing Mr. Webster to serve both as chair of the Selection Board, and as the hiring manager responsible for the placement decision is wrong in the view of the Court. The applicant has discretion to ensure that the persons most familiar with the requirements of the position be on the Selection Board, and be involved in the final hiring decision. There is no reasonable apprehension of bias in having Mr. Webster serve in both capacities. However, this mistake or element of the decision does not affect the outcome of the decision as a whole; and
Issue No. 5- the ITPR's decision that the appointments be revoked and the selection process re-run obviously exceeds the jurisdiction of the ITPR set out in the applicant's staffing policy. The staffing policy provides that Independent Third Party Reviewers can make recommendations. In paragraph 49 of the Applicant's Memorandum of Fact and Law, the applicant states that the ITPR may recommend revocation of the appointed employee, and that the Reviewer's final decision is "binding" on the parties. The applicant is arguing about semantics and challenging the Reviewer's decision on the basis that the Reviewer ordered the appointments revoked, as opposed to recommending the revocation of the appointment. Accordingly, this issue is not a basis for setting aside the decision.
[20] For these reasons, this application for judicial review must be denied.
Respondent Jean-Marc Guinard
[21] Respondent Jean-Marc Guinard asks the Court remit the matter back to the Independent Third Party Reviewer to correct an error, which was that the placement be re-run with only the first three mentioned respondents, and not the Respondent Guinard. The obvious error is that this ignored the ITPR decision involving Mr. Guinard dated January 5, 2004, which found that he had been arbitrarily excluded from the placement process. The Court agrees that there is an obvious inconsistency, but the Court does not have the jurisdiction to correct the order under review since the Court is dismissing the application. The Court expects the CCRA to respect the ITPR decision involving the Respondent Guinard, particularly since CCRA withdrew its application for judicial review of that decision.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review of the decision of the Independent Third Party Reviewer dated July 27, 2004 is dismissed with costs to the Respondent Kapadia.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1564-04
STYLE OF CAUSE: CANADA CUSTOMS AND REVENUE AGENCY
Applicant
and
INDRA KAPADIA, LEO MERWIAK, IMRAN KHAN AND JEAN-MARC GUINARD
Respondents
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 17, 2005
AND ORDER: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES:
| J. Sanderson Graham Department of Justice
|
|
| Christopher Rootham Nelligan O'Brien Payne |
SOLICITORS OF RECORD:
| John Sims, Q.C. Deputy Attorney General of Canada
|
|
| Nelligan O'Brien Payne Ottawa, Ontario |