Date: 20010504
Docket: T-2027-99
Neutral Citation: 2001 FCT 437
Between:
LEANNE NELSON and ELAINE RUSSEL,
Applicants,
- and -
ATTORNEY GENERAL OF CANADA, and
J. LEENHOUTS, L.A. BELL, W.H.I. GREENWOOD, C.D. KOELLMEL,
A.M. CACCHIONI, D. SHARKEY, R.H. SETTLE, D.D. BANNISTER,
G.B. SUMNER, K. McKENZIE, A. McCREADIE,
L. MANN, S. DURAND, K. MEGYESI, and C. DYCK ,
Respondents.
REASONS FOR ORDER
Muldoon J.
[1] This is an application for judicial review of a decision dated October 21, 1999, of a Public Service Commission Appeal Board appointed under section 21 of the Public Service Employment Act, R.S.C. 1985, c.P-33 as am., wherein the Appeal Board held that the Selection Board which conducted staffing competitions for two positions at Human Resources Development Canada in the Okanagan Service Area did not err by contravening the merit principle.
1. Statement of Facts
[2] In the fall of 1998, Human Resources Development Canada (HRDC) created a new position known as a Service Delivery Representative at the CR-05 level. On January 13, 1999, HRDC published a competition poster to establish eligibility lists for positions in the Okanagan Service Area locations. The competition poster identified the statement of qualifications, and provided other useful information for potential applicants. The competition poster also indicated that a standardized test known as the Agent I Test Battery would be used during the selection process. By the closing date for the receipt of applications on January 27, 1999, the Selection Board had received fifteen applications for the Kelowna position, and twelve applications for the Vernon position. Two candidates voluntarily withdrew, one from the Kelowna competition, and the other from the Vernon competition. One candidate was also screened out from the Kelowna competition because she did not reside in the area of competition.
[3] HRDC established the following statement of qualifications for the positions:
Education: The candidate must have successfully completed two years secondary school or PSC approved alternative.
Experience: The candidate must have obtained good results in providing and explaining information to the general public.
Language: The candidate must be proficient in English.
Reliability/Security: The candidate must obtain a successful Enhanced Reliability Security check
Knowledge: 1. The candidate must know and understand HRDC's mission and business lines and how their work fits into the business;
2. The candidate must know the legislation, procedures, policies, and tools related to the delivery of Employment Insurance benefits.
3. The candidate must know the local labour market and community services.
Abilities and 1. The candidate must be able to perform diagnostic information
Skills gathering, including being able to recognize issues related to the adjudication of employment insurance claims;
2. The candidate must be able to apply legislation, principles and procedures;
3. The candidate must be able to recognize issues which are relevant to the adjudication of EI files;
4. The candidate must be able to communicate orally;
5. The candidate must be able to communicate in writing;
6. The candidate must be able to perform arithmetic;
7. The candidate must be able to verify data and to be accurate;
Personal 1. The candidate must have client
Suitability focus;
2. The candidate must be open to change and to learning;
3. The candidate must possess initiative;
4. The candidate must be able to work with others;
5. The candidate must have a positive attitude.
[4] The candidates were required to submit an Agent I Test Battery score in February, 1999. Candidates who wished to improve a previous score were given the opportunity to re-write the test. Candidates were then screened under the education and experience qualifications. All candidates who passed were invited to participate in an interview in March, 1999, to assess their knowledge, abilities, and personal suitability qualifications.
[5] During the interview, the Selection Board assessed each candidate by awarding them a qualitative grade for each qualification. The grade was then converted into a numeric score. To qualify for a place on the eligibility list, the Selection Board decided that the following scheme would be invoked:
a. candidates had to pass any two of the three knowledge qualifications;
b. candidates had to pass abilities and skills qualifications 1, 2, 3, 6, and 7
c. candidates had to pass all of the personal suitability qualifications.
[6] In other words, an ultimately successful candidate could simply fail one of the knowledge requirements, or ability requirements 4 or 5, and still be considered qualified for the purposes of this competition.
[7] The Selection Board also decided that some qualifications were important predictors of successful job performance. Therefore, the candidates were ranked on the eligibility list by comparing their scores based on knowledge qualification 1, on abilities qualifications 1 and 3, and on all of the personal suitability qualifications. The Selection Board used an overall numeric aggregate score to break any ties.
[8] The Agent I Test Battery is an examination used by HRDC on a national scale. Usually, the passing score is 70%, however, for the purposes of these competitions, the Selection Board lowered the passing score to 60%. This change was made before assessing the candidates, but the change was not advertized in the competition poster.
[9] Thirteen candidates were placed on the eligibility list for the Kelowna position, and eleven candidates were placed on the eligibility list for the Vernon position. The applicant Leanne Nelson was ranked eleventh on the Kelowna eligibility list, and the applicant Elaine Russell was ranked tenth on the Vernon eligibility list.
[10] The applicants appealed the decision of the Selection Board before an Appeal Board under section 21 of the Public Service Employment Act (the PSEA). On October 21, 1999, the Appeal Board held that it was within the Selection Board's authority to reduce the pass mark to 60% for the Agent I Test Battery. The Appeal Board also held that the merit principle was not contravened because of the ranking method used. These are the findings which the applicants challenge in this Court.
2. Issues
[11] The applicants submit that the selection process was flawed because:
a. the method used to establish the eligibility list violated the merit principle;
b. the method used to rank the candidates who were on the eligibility list violated the merit principle; and
c. the Selection Board erred by reducing the pass mark for the Agent I Test Battery from 70% to 60%.
Issue 1: The Eligibility List
[12] In choosing who would be placed on the eligibility list, the Selection Board decided that candidates had to pass any two of the three knowledge qualifications, that they had to pass abilities qualifications 1, 2, 3, 6, and 7, and that they had to pass all of the personal suitability qualifications. A successful candidate could nonetheless fail one of the knowledge qualifications, or ability qualification number 4 or 5, and still be considered qualified for the purposes of this competition. In fact, three candidates who were placed on the eligibility list had failed one of the knowledge qualifications.
[13] The applicants submit that the Selection Board erred in law because candidates must meet all of the qualifications on the statement of qualifications. It is inconsistent with the merit principle that a Selection Board eliminate departmental qualifications when selecting candidates.
[14] The respondents submit that the issue is not properly before the Court because it was not specifically argued before the Appeal Board. The respondents cite Singh v. M.C.I. (1995), 98 F.T.R. 58 (T.D.) at 62, for the proposition that "it has been clearly established that in the context of an application for judicial review, this Court cannot decide a question which was not raised before the administrative tribunal."
[15] Alternatively, the respondents submit that the Appeal Board did not err because it assessed the candidates for each qualification listed in the statement of qualifications, and awarded marks based on its assessment. A Selection Board may determine that a candidate is meritorious notwithstanding that the candidate may have failed a particular question, test or subfactor. As long as the Selection Board assesses the candidates against all of the relevant subfactors, and determines that they meet the factors of knowledge, abilities and skills, and personal suitability, then the merit principle has been respected. A candidate who receives a failing grade in one subfactor may qualify through his or her performance in other subfactors.
[16] Section 8 of the PSEA gives the Public Service Commission the exclusive right to make appointments from within the Public Service. Appointments must be made according to the merit principle, which is established under subsection 10(1) of the PSEA:
Appointments to be based on merit
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.
[17] A Selection Board may choose how to evaluate candidates under subsection 16(1) of the PSEA:
Consideration of applications
16(1) 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.
[18] Finally, applicants may appeal the results of a competition under section 21 of the PSEA:
Appeals
21(1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.
[19] The principle of relative merit was discussed by the Federal Court of Appeal in Greaves v. Canada (Attorney General), [1982] 1 F.C. 806 (C.A.), at page 810:
... A selection which has been made in accordance with the procedure laid down in the Act and the Regulations, be it by competition or otherwise, may nevertheless be successfully attacked under section 21 if the manner in which the selection was made was such that it violated the merit principle. For instance, a selection made by competition following all the statutory requirements may be tainted by the fact the qualifications of the candidates have been wrongfully assessed. This is true when the selection is made by competition; it is also true if the selection is made without a competition. The requirements of the merit principle are, in my view, always the same. They do not vary with the method of selection chosen. That principle requires that the selection be made "according to merit", which means, "that the best persons possible will be found for the various positions in the Public Service..."... In the present case, the Appeal Board, as I understand its decision, was not satisfied that the appointment had been made "according to merit" because the qualifications of the selected candidate had never been in any way compared with those of other persons who, like the respondents, might have wished to apply for the position. This was, in my view, a valid reason for allowing the appeal.
(Emphasis added)
[20] And at page 811, Mr. Justice Le Dain added that the "merit established by competition is obviously relative merit."
[21] At page 11 of its decision, the Appeal Board discussed how the Selection Board ranked the candidates in this competition:
With respect to the method utilized by the Selection Board in numerically ranking the candidates, I find that the merit principle was not contravened as a result of the Selection Board having only provided numerical rating for knowledge qualification number 1, abilities and skills qualifications numbered 1 and 3, and all of the personal suitability qualifications. In the Federal Court decision of Boucher, Justice McKeown stated the following:
[12] I note that s. 16 of the Act gives wide discretion to a Selection Board to use the selection tools "it considers necessary or desirable". In my view, this includes the reasonable assignment of the weight to be given to each particular factor evaluated. On the evidence before the Appeal Board, it was open to the Selection Board to distinguish between critical and non-critical qualifications necessary for the position in question. The evidence showed that the minimum requirements, established in advance of the selection process, were applied equally to all candidates, and that the non-critical qualification of knowledge was factored into the global assessment of all candidates. In my view, the Selection Board's inclusion of the candidates' knowledge scores in their overall ranking was sufficient under the circumstances, and was consistent with the merit principle.
What is required of the Selection Board, is that it should have considered the candidates' ratings against all of the qualifications in some manner. The Selection Board considered those qualifications where were excluded from the numerical tabulation upon which the candidates were ranked, as some of those qualifications had been established as being critical. Others, such as the knowledge and abilities and skills qualifications were considered by the Selection Board, as evidenced by candidates being required to meet two out of three of the knowledge qualifications and five out of seven of the abilities and skills qualifications.
(Emphasis added)
[22] To the respondents' submission that the issue is not properly before the Court, it is noted that the Appeal Board discussed the manner in which the eligibility list was established by the Selection Board, specifically stating that candidates were required to meet two out of the three knowledge qualifications, and five out of the seven abilities qualifications. As such, the matter was reviewed by the Appeal Board, and the issue is properly before this Court.
[23] The second matter which emerges out of reasons is that the Appeal Board relied on the judgment of Mr. Justice McKeown from Boucher v. Canada (Attorney General) (1998), 157 F.T.R. 79 (T.D.). However, Mr. Justice McKeown 's decision was subsequently overturned by the Federal Court of Appeal on January 20, 2000, in Boucher v. Canada (Attorney General) (2000), 252 N.R. 186 (F.C.C.A.).
[24] In Boucher, supra, the Federal Court of Appeal reviewed the decision of a Selection Board regarding staffing competitions for Immigration Settlement Counsellors. In April, 1996, the Department of Employment and Immigration published a statement of qualifications. In assessing the candidates' qualifications during the competition, the Selection Board assigned different weights to different factors. The Selection Board assigned only 10% to a knowledge requirement, and determined that although some of the ability and suitability qualifications were critical, and to fail them would exclude a candidate, the knowledge factor would not be critical, and to fail it would not be fatal. As a result, of five qualified candidates, three had failed the knowledge factor.
[25] On appeal, the unsuccessful candidates alleged that Selection Board did not respect the merit principle by failing to consider that passing the knowledge qualification was a condition of success; and by assigning it a low weighting of 10% of total possible marks. McKeown J. held that the Selection Board had not erred, and that it was sufficient that it had included the scores on the knowledge test in the overall marks assigned to each candidate; it was not necessary that a pass in knowledge be treated as a condition of selection. The Federal Court of Appeal stated at paragraphs 7 - 10:
[7] Turning to the first issue, that of the treatment accorded to the Knowledge factor by the Selection Board, we are of the view that this involves an issue of law as to the requirements of the merit principle and we therefore consider that the PSCAB's decision to confirm that process equally involved a conclusion of law. We are not persuaded that the PSCAB is a tribunal which should be considered to have such expertise in the interpretation of the Public Service Employment Act that a high degree of deference is owed to it on this issue. The Board is appointed ad hoc. We conclude in this respect that the standard of review which the Trial Division should have applied is that of correctness.
[8] In accordance with this standard we find that the Selection Board erred in law in not requiring that candidates succeed on each of the advertised qualifications for this position. This was in effect a failure to assess the factor of Knowledge. Following what this Court held in Tiefenbrunner et al v. A.G. of Canada...we conclude that such a failure amounted to an error of law on the part of the Selection Board. In effect, it eliminated Knowledge as a qualification notwithstanding the advertised requirements for the job. As the Court has held on other occasions, a Selection Board cannot change the advertised qualifications by eliminating one or more of them: to do so is unfair to those who might otherwise have applied but failed to do so because they recognized that they did not have all the advertised qualifications.
[9] Nor are we persuaded, as was the learned Trial judge, that the Knowledge factor was adequately assessed by including a candidate's mark on this factor in his total score: the fact remains that this factor was eliminated as a prerequisite for the position.
[10] Having come to this conclusion, it follows that the appeal must be allowed, the decision of the PSCAB must be set aside, and the matter remitted to it. ...
(Emphasis not in original text.)
[26] According to Boucher, supra, the treatment accorded to a qualification during a competition by a Selection Board involves an issue of law, and the Appeal Board's decision is a conclusion of law. Thus, the standard of review is correctness. Additionally, a Selection Board errs in law when it does not require that candidates succeed on each of the advertized qualifications for a position. This amounts to a failure to assess a qualification. It is not open to a Selection Board to eliminate qualifications during the selection process. Finally, changing the advertized qualifications by eliminating one or more is unfair because potential candidates may have failed to apply because they recognized that they did not have all of the advertized qualifications.
[27] The Selection Board effectively eliminated qualifications and erred when it established the eligibility list. Qualifications for positions are established by the manager in accordance with the generic and specific standards contained in the Public Service Commission's Standards for Selection and Assessment. Identifying the required competencies starts with a thorough understanding of the job to be performed. This means not only the duties of the job, but also the relationship between the job and its setting or environment. The manager has to decide what kind of qualifications the incumbent must have, and to what degree he or she must possess them. It is not for the Selection Board to omit these qualifications when selecting candidates.
[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.
[29] This principle was recently reiterated in Carroll v. Canada (Attorney General), [2000] F.C.J. No. 1439 (T.D.) (QL), where Madam Justice Tremblay-Lamer stated:
[17] Like 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.
Issue 2: Agent I Test Battery Mark
[30] The Selection Board lowered the Agent I Test Battery passing score from 70% to 60% before assessing the candidates. However, the change was not advertized in the competition poster.
[31] The applicants submit that because the competition poster did not state that the passing grade would be reduced, the Selection Board in effect changed the advertized qualifications because candidates may have decided not to apply.
[32] The respondents submit that the Appeal Board did not err in concluding that the Selection Board had the authority to set the pass mark for the Agent I Test Battery at 60%. The pass mark was reduced before reviewing any of the candidates' marks. The merit principle does not require that selection tools be administered in the same way, and to the same standard, in all competitions throughout the Public Service. Such a requirement would fetter the discretion of a selection board to choose the selection tools which are appropriate for each position and competition. As long as the tests were administered in the same way to all candidates, there can be no violation of the merit principle.
[33] The respondents submit that the competition cannot be impugned because of speculation on how potential candidates might have reacted to the competition poster. In fact, the competition poster said nothing about the standard against which the tests would be marked. No evidence exists that potential candidates did not step forward because of the passing mark. Moreover, candidates were free to rely on past marks or to re-write the test battery if they wished to do so.
[34] In Bambrough v. Canada (Public Service Commission Appeal Board), [1976] 2 F.C. 109 (C.A.) at paragraph 16, the Federal Court of Appeal held that when a potential pool of candidates might be enlarged because of a choice made by the selection board, the competition must be recommenced:
[16] Nor do I think that the principle of selection according to merit calls for as broad and unqualified a requirement as that stated in the above passage from the Staffing Manual. Obviously where the change in the qualifications would enlarge the range of potential candidates for a position, the selection process would have to be recommenced to afford an opportunity for the identification of other candidates. But where, as here, the effect of the change in the qualifications is to narrow the range of potential candidates, there is no adverse effect on the principle of merit, nor is there any prejudice to a candidate who is eliminated from further consideration on the ground that he lacks one of the additional qualifications. ...
(Emphasis added)
[35] The decision of the Federal Court of Appeal in Boucher, supra, held that a Selection Board cannot change the advertised qualifications by eliminating one or more of them. In this instance, the Selection Board modified the qualification poster by using a pass score which was not the standard pass score. The Selection Board erred in law by unwittingly misleading potential candidates.
[36] The applicants also submit that the Selection Board reduced the pass mark because successful candidates would have access to training after selection. The applicants submit that qualifications acquired after appointment through the use of training or technological aids cannot be a substitute for an assessment of relative merit before the selections are made.
[37] The respondents submit that the pass mark was set at 60% because of the duties and functions of the position. The adequacy of any particular test in any particular competition is a question of fact. The pass mark was lowered because selected candidates could expect to receive training, therefore, performance on the test was less important because successful candidates would have an opportunity to learn in the future.
[38] The Appeal Board stated at page 16 of the decision:
In reply to the appellant's allegation that the Selection Board had inappropriately lowered the passing mark for he Agent I Test Battery, Ms. Varchol stated that a passing score of sixty percent had been assigned to the Agent I Test Battery prior to the Selection Board's receipt of candidates' marks for those tests. Ms. Varchol also stated that the Selection Board members were aware that the candidates might be fearful of having to meet the national standard on the Agent I Test Battery. In consideration of that potential fear, and in consideration of the fact that training and technological aids would be made available to persons working in the position, the Selection Board members had been of the opinion that the passing grade on the Agent I Test Battery should be set a sixty percent.
(Emphasis added)
[39] The applicants are correct. The Selection Board erred by lowering the pass mark because training would be provided. Such a technique clearly subverts the merit principle. Qualifications which are acquired after selection cannot substitute for a prior assessment of relative merit. The Selection Board's approach was inconsistent with the Public Service Commission's Standards For Selection and Assessment at page 13:
Qualifications should not be established for knowledge, abilities/skills, or other attributes which can only be acquired after appointment, either through a formal departmental training program of through the performance of a particular set of duties. In such cases, the capacity to acquire such knowledge, abilities/skills or other attributes should be reflected either through relevant aptitudes or other qualifications.
(Emphasis added)
3. Conclusion
[40] The Appeal Board's decision is set aside and the application for judicial review is allowed. The Appeal Board Chairperson, Bumbers' decision of October 21, 1999, is set aside. The matter is sent back to the Appeal Board for redetermination in accordance with the principles stated in this present decision.
[41] The respondents' counsel asked for costs and can hardly suggest that they should be immunized from paying costs. In justice the applicants ought not to be required to pay the respondents' costs. The applicants may jointly have their costs assessed (if the parties cannot agree) on the high side of Column III in Tariff B. The taxing/assessment officer shall allow the applicants a similar allowance even for the preparation and calculation of their costs, as allowed herein.
Ottawa, Ontario,
May 4, 2001
Judge