Docket: T-900-02
Ottawa, Ontario, this 27th day of January, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
ALISON DAVIES
Applicant
AND
The ATTORNEY GENERAL OF CANADA, YVETTE MULDER, DENISE PARKS, ANNA GALLANT AND LOUISE BERKETA
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Public Service Commission Appeal Board ("Appeal Board"), dated May 6th, 2002, dismissing part of the applicant's appeal.
BACKGROUND
[2] In May 2001, the applicant applied for the position of Contract Administration Officer (AS-02) in response to a Human Resources Development Canada competition notice. A total of 14 applications were received for the position. A selection board conducted a primary selection process involving a review of the candidates' applications, resumes, reference checks and their responses to written and oral questions. At the conclusion of this primary process, 5 candidates were found to be qualified for the position and were invited to attend an oral interview with the selection board. Following the oral interview, the 5 candidates were ranked in order of relative merit. The applicant, the 4th ranked candidate, was not selected for the position and appealed to the Appeal Board pursuant to section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 ("Act").
[3] In Reasons dated May 6th, 2002, the Appeal Board accepted the applicant's arguments with regards to the selection board's assessment of her relative merit as compared with the 3rd ranked candidate. However, it found that she had failed to establish that the selection process had otherwise occurred in a manner which did not respect the merit principle. The applicant is now seeking judicial review of the Appeal Board's decision as it related to this second part of her appeal.
ISSUES
[4] The applicant raises the following issues:
1. Did the Appeal Board fail to consider all of the allegations raised by the applicant?
2. Did the Appeal Board err in concluding that the selection board had acted reasonably in eliminating a portion of one of its interview questions?
3. Did the Appeal Board err in concluding that sufficient information had been provided by way of reference checks and the personal knowledge of its members to address portions of the answer guide which were not directly addressed by the candidates?
4. Did the Appeal Board err in concluding that the methods chosen by the selection board to evaluate the candidates' knowledge of business and accounting practices were not unreasonable?
5. Did the Appeal Board err in concluding that it lacked the jurisdiction to consider the knowledge threshold established by the selection board for two of its questions?
STANDARD OF REVIEW
[5] With the exception of the final issue, all of the issues raised in these proceedings relate to the Appeal Board's assessment of the evidence with regards to whether or not the merit principle was applied by the selection procedures. Similar issues were raised in Hains v. Canada (Attorney General), [2001] F.C.J. No. 1238. At para. 26 her judgement in that case, Heneghan J. concluded:
In my opinion, the present application concerns the review of the Appeal Board's decision with respect to its factual findings about the Selection Board's decision and the Appeal Board's application of the merit principle pursuant to section 10 of the Act. The Appeal Board reviewed the evidence presented to it. The question is whether the Appeal Board's conclusions are supported by that evidence. The applicable standard, then, is reasonableness.
The same reasoning is applicable in this case. Hence, the standard of review for issues 1-4 is reasonableness. Issue 5 relates to the jurisdiction of the Board and requires an interpretation of the Act. The appropriate standard of review for this issue is correctness (Maassen v. Canada (Attorney General), [2001] F.C.J. No. 961).
Issue 1: Did the Appeal Board fail to consider all of the allegations raised by the applicant?
[6] The applicant submits that the Appeal Board erred by failing to discuss in its Reasons all of her allegations and by focussing solely upon those arguments which she raised in rebuttal at the appeal hearing. In so doing, she submits that the Appeal Board held her to an onerous standard of proof with regards to her allegations about the selection board's procedures.
[7] This argument cannot succeed. The Appeal Board is obliged to provide a moderate level of deference to the decision of a selection board as was discussed in Scarizzi v. Marinaki, [1994] F.C.J. No. 1881 at para. 6 ["Scarizzi"] as follows:
It is clear that one of the functions of the Appeal Board is to ensure... that Selection Boards adhere to the merit principle.... However, it is not empowered to substitute its opinion with respect to a candidate's assessment or examination for that of the Selection Board. Only if a Selection Board forms an opinion that no reasonable person could form, may an Appeal Board interfere with the decision of the Selection Board.
In other words, the Appeal Board may only interfere with the findings of a selection board when they are unreasonable.
[8] In its Reasons, the Appeal Board applied this standard of reasonableness to the procedures of the selection board when it stated:
...As the onus was on the appellant to demonstrate that the selection board's assessment was unreasonable, I will summarize only the appellant's arguments with respect to those questions where the department's explanations were challenged by the appellant during her rebuttal and those where the reasonableness of the department's assessment clearly required a detailed review (underlining added).
It is implicit from this portion of the Reasons that the Appeal Board chose to discuss only those of the applicant's allegations which raised an issue as to the reasonableness of the selection board's procedures and decision.
[9] While it would have been preferable had the Appeal Board added the words "in light of the applicant's allegations", it is self evident that it will look at the selection board's activity in light of the applicant's allegations. The Board was not obliged to discuss those allegations which, in its view, were without merit. Therefore, the applicant has failed to establish that the Board committed a reviewable error in this regard.
Issue 2: Did the Appeal Board err in concluding that the panel had acted reasonably in eliminating a portion of one of its interview questions?
[10] The applicant submits that the selection board erred by eliminating the "why" part of a question which asked the candidates what sort of information they would provide to a stakeholder during contract negotiations and why they would provide this information. Notably, none of the candidates answered the "why" part of the question during the interview.
[11] In its Reasons, the Appeal Board concluded that it had been reasonable for the selection board to eliminate this part of the question because, as none of the applicant's had answered it, it could have had no impact upon the assessment of their relative merit.
[12] In MacKintosh v. Canada (Public Service Commission Appeal Board), [1990] F.C.J. No. 834, the Federal Court of Appeal held that the elimination of a question during a selection process constituted an error under circumstances in which the selection board could not be satisfied that its elimination would have "no impact upon the assessment of the relative merits of the candidates...."
[13] That was not the circumstance in this case. As none of the candidates had answered the "why" part of the question, its elimination could not have had any impact upon an assessment of their relative merit for the position. Therefore, the Appeal Board did not err in finding that the selection board had acted reasonably by eliminating the question.
Issue 3: Did the Appeal Board err in concluding that sufficient information had been provided by way of reference checks and the personal knowledge of its members to address portions of the answer guide which were not directly addressed by the candidates?
[14] The applicant submits that the Appeal Board erred in concluding that sufficient information had been provided through reference checks and from the personal knowledge of the selection board to provide answers to those questions not fully answered by some of the candidates during their interviews. She submits that the Department should have demonstrated the precise manner in which this additional information addressed unanswered portions of the answer guide.
[15] This argument cannot succeed. The applicant has failed to demonstrate to the court that the Appeal Board's decision was unreasonable and that the selection board failed to apply the merit principle by supplementing the candidates' responses with information gained from the alternative sources.
[16] In Field v. Canada (Attorney General), [1995] F.C.J. No. 458, Justice McGillis found that the Appeal Board erred in concluding that the merit principle had been respected when there was "an absence of any cogent evidence, either oral or documentary... to establish the manner in which the merit of the candidates was assessed" in the Appeal Record. (underlining added)
[17] In this case, there was evidence on the Appeal Record as to how the reference checks and personal knowledge of selection board members was used to supplement the candidates' answers. Specifically, the Appeal Board considered the answers of selection board members as to how this information was used when they were questioned on the subject during the disclosure process. As a result, the applicant has failed to demonstrate that the circumstances of this case are similar to those in Field, supra. and that was anything unreasonable in the Appeal Board's findings.
Issue 4. Did the Appeal Board err in concluding that the methods chosen by the selection board to evaluate the candidates' knowledge of business and accounting practices were not unreasonable?
[18] In the Applicant's submission, the selection board chose insufficient and inappropriate methods for evaluating the candidates' knowledge of business and accounting practices. Specifically, she takes issue with that portion of the selection process in which the candidates were asked to recognize and place in chronological order certain business invoices and in which the candidates' ability to use certain computer software was considered with regards to their ability to analyse data.
[19] The specific question in issue read:
Using the computer (MS Word and Excel) please do a comparative statistical and financial analysis of photocopiers for the Smithers, Prince Rupert, and Terrace offices for the three-month period shown on the invoices included in this package. Your analysis should include any observations or recommendations you have. A brief description of the process you used to conduct your analysis is also required.
[20] There was nothing unreasonable with the methods chosen by the selection board to assess the candidates' knowledge in these areas. The ability to perform functions such as recognizing and organising invoices and using software which allows for the efficient analysis of data was relevant to an analysis of the candidates' relative merit for the Contract Administrator position. It was not the role of the Appeal Board to substitute its choice of selection methods for that of the selection board (Scarizzi, supra.)
Issue 5. Did the Appeal Board err in concluding that it lacked the jurisdiction to consider the knowledge threshold established by the selection board for two of its questions?
[21] The applicant's final argument is that the Appeal Board erred by concluding that it lacked the jurisdiction to consider whether or not the knowledge threshold established for certain questions had been set too low by the selection board. In her support, she cites the cases of Laberge v. Canada (Attorney General), [1988] 2 F.C. 137 (C.A.) ["Laberge"] and Nelson v. Canada (Attorney General) (2001), 204 F.T.R. 287 ["Nelson"].
[22] The Act is clear that it is the exclusive role of the Public Service Commission and the Department in question to establish the necessary qualifications for a position. Section 12 (1) of the Act thus reads:
For the purpose of determining the basis for selection according to merit under section 10, the Commission may establish standards for selection and assessment as to education, knowledge, experience, language, residence or any other matters that, in the opinion of the Commission, are necessary or desirable having regard to the nature of the duties to be performed and the present and future needs of the Public Service. (underlining added)
Further, Section 16 (1) provides:
The Commission shall examine and consider all applications received within the time prescribed by it for the receipt of applications and, after considering such further material and conducting such examinations, tests, interviews and investigations as it considers necessary or desirable, shall select the candidates who are qualified for the position or positions in relation to which the competition is conducted. (underlining added)
[23] Thus, as stated by Marceau, J.A. in Canada (Attorney General) v. Blashford, [1991] F.C.J. No. 23 (F.C.A.) at para. 4, it is not the role of the Appeal Board to inquire into the basic qualifications when considering whether or not the selection process occurred in a manner which respected the merit principle:
As I understand the scheme of the Act, the "merit principle" is meant to govern the selection process that the Public Service Commission will follow in the exercise of its duty to judge and rank the candidates; it has no role to play in the establishment of the basic qualifications to be admitted to participate in the competition, the establishment of which is the exclusive prerogative of the Department. (underlining added)
[24] The threshold of knowledge required for a position is an integral part of the basic qualifications established by the Department and the Commission. Therefore, the Appeal Board was correct to conclude that it lacked the jurisdiction to consider the level at which the threshold had been set.
[25] Needless to say, the cases cited by the applicant are distinguishable from the case at hand. In Laberge, supra., the Court of Appeal found that the panel had considered certain candidates with regards to only some of the requirements set out in the job poster. In this case, the relative merit of all candidates was assessed with regards to the three requirements set out in the competition notice. In Nelson, supra., the Court found that the panel had modified the qualifications poster after it had been issued. There is no suggestion that the same occurred in this case.
CONCLUSION
[26] In light of the above findings, this application is dismissed.
ORDER
THIS COURT ORDERS that the application is hereby dismissed.
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-900-02
STYLE OF CAUSE:
ALISON DAVIES
Applicant
AND
THE ATTORNEY GENERAL OF CANADA, YVETTE MULDER, DENISE PARKS, ANNA GALLANT AND LOUISE BERKETA
Respondents
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 21, 2004
REASONS FOR REASONS FOR ORDER
AND ORDER : JUSTICE von FINCKENSTEIN
DATED: January 27, 2004
APPEARANCES:
Mr. Cameron FOR APPLICANT
Mr. Roach FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. David Yazbeck
Raven Allen Cameron & Ballantyne
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT