Date: 20040426
Docket: T-1425-01
Citation: 2004 FC 615
IN THE MATTER OF an appeal under section 21 of the Public Service Employment Act, R.S.C. 1985, c.P-33, as amended by section 16 of the Public Service Reform Act, S.C. 1992, c. 54
AND IN THE MATTER OF the appeal of Michael K. Warren, following a Corrective Measures Promotion Board exercise following allowed appeals for the promotion of some 78 FS-01 officers in the Political/Economic Stream to the FS-02 level
BETWEEN:
MICHAEL K. WARREN
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of the Public Service Commission of Canada Appeal Board (the "Appeal Board"), chaired by B.A. Monk, wherein the Appeal Board dismissed the appeal of Michael K. Warren (the "Applicant") against the selections made for appointment to positions at the Foreign Service Officer (FS-02) level in the Department of Foreign Affairs and International Trade ("DFAIT") at Ottawa. The decision under review is dated the 6th of July, 2001.
[2] The hearing of this application followed immediately after the hearing of a related application for judicial review in the matter of Gordon L. Hiseler and Michael K. Warren, Applicants, and the Attorney General of Canada, Respondent on file: T-1621-00. Both applications for judicial review arose out of the same promotional competition at DFAIT which was originally conducted in 1998. The Hiseler and Warren application sought judicial review of an earlier decision of a Public Service Commission of Canada Appeal Board (the "Carbonneau decision") that granted relief to Mr. Warren. Mr. Warren was not satisfied with the ultimate result of that grant of relief. Thus, the matter returned to the Public Service Commission of Canada Appeal Board which made the decision that is here under review. In the result on this ongoing process, much of the factual background and all of the underlying provisions of law are common to the Hiseler and Warren v. the Attorney General of Canada reasons and these reasons. The common elements from the reasons for decision in Hiseler and Warren will form Schedule A to these reasons.
[3] Following the Carbonneau decision[1], the Applicant's application for promotion to a position at the FS-02 level was referred back to the Public Service Commission (the "Commission"). The Commission once again identified corrective measures and referred them for implementation to the Corrective Measures Board whose earlier decision had resulted in the Carbonneau decision.
[4] The Corrective Measures Board members had, by this stage, read the first Public Service Commission of Canada Appeal Board decision (the "Nadeau decision"). Reference checks were conducted, with each of the three (3) Members of the Corrective Measures Board reviewing one of the Applicant's most recent appraisal forms and drafting suggested questions. The draft suggested questions were approved by the Board as a whole. The approved questions were then apparently distributed on a random basis to Board Members and reference checks were conducted. The Corrective Measures Board then collectively made its final assessment in respect of the Applicant during a teleconference for which no personal notes of the Members now exist. The Applicant's score increased as a result of this process from 110 to 115 which still remained well below the required pass level of 180. Thus, he did not then receive promotion to a position at the FS-02 level.
[5] In the result, the Applicant, for the third time, appealed to the Public Service Commission of Canada Appeal Board.
THE DECISION UNDER REVIEW
[6] The Appeal Board provided a detailed decision extending to forty-one (41) pages in which it dismissed the Applicant's appeal on all grounds. The decision summarized the Applicant's extensive written submissions before it, DFAIT's responses and the Applicant's reply. Two (2) members of the Corrective Measures Board were cross-examined at the hearing which led to the decision under review.
[7] The Appeal Board concluded:
The appellant [here the Applicant] has not persuaded me that this is a case where the decision of the Promotion Board is clearly unreasonable. The department has demonstrated to my satisfaction that the Promotion Board complied with the corrective measures requiring it to carry out reference checks to clarify gaps or inconsistencies originating from the performance appraisal reports and the raters who authored them. The consensus decision of this Promotion Board with respect of the assessment of the appellant, taking into account the performance appraisal reports, narratives and reference checks, is one that a reasonable person could have made based on the information before him/her and there is no reason for me to interfere with its finding. It must be realized that the assessment of the merit of various persons, which is the function of the Selection [Promotion] Board, ...is, in many instances, a pure matter of opinion... . In this instance, there is no reason for the Appeal Board to intervene with that opinion formed by the Promotion Board.
I am of the opinion that this Promotion Board acted in good faith in carrying out the reference checks for appellant Warren. In general, it is not the role of the Appeal Board to interfere with the decision of the Selection Board if there has been a selection according to merit. If that requirement has been met and if a Selection Board has performed its duty in accordance with the Act and regulations and has made an honest effort to choose the most deserving candidate ..., then the appeal must be dismissed. [two citations omitted]
The Applicant's appeal was thus dismissed.
THE ISSUES
[8] The issues on this application for judicial review were essentially not in dispute before the Court. They were the following: first, the appropriate standard of review; secondly, whether, against the appropriate standard of review, the decision under review reflects reviewable error; and thirdly, assuming reviewable error, what is the appropriate remedy.
[9] While counsel for the Applicant elaborated on the issue of reviewable error, urging five (5) forms of reviewable error, in these reasons, the issue of reviewable error will be dealt with globally.
RELEVANT LEGISLATIVE PROVISIONS
[10] The appropriate statutory provisions on this application for judicial review are the same provisions of the Public Service Employment Act[2] as those relied on in the Hiseler and Warren decision earlier referred to. They are incorporated in Schedule A to these reasons.
ANALYSIS
a) Standard of Review
[11] My analysis in the Hiseler and Warren decision on this issue is, I am satisfied, equally applicable here. It is set out as Schedule B to these reasons.
b) Reviewable Error - Selection according to merit
[12] The second Appeal Board decision in this lengthy process, which is the decision that was under review in the Hiseler and Warren decision, set aside the results in respect of Mr. Warren in the second round of the reclassification process. In the result, in the words of subsection 21(3) of the Public Service Employment Act, given the fact that the Appeal Board, through the "Carbonneau decision" , determined that there was "...a defect in the process for the selection of Mr. Warren for appointment under [the] Act, ...", the Public Service Commission was mandated to "...take such measures as it considers necessary to remedy the defect." The Public Service Commission chose to reactivate the earlier Corrective Measures Board and to, once again, confer a particular mandate on that Board. Also once again, that the mandate conferred on that Board might not have been entirely responsive to the Carbonneau decision or to the wishes of Mr. Warren is, I am satisfied, not relevant.
[13] In Lalonde v. Canada (Attorney General)[3], I wrote at paragraph [25]:
I reach a similar conclusion with regard to the allegation of error in law for failure to provide three (3) additional marks as conceded before the first Appeal Board. Provision of three (3) additional marks in favour of the Applicant was, for whatever reason, not adopted as one of the corrective measures directed by the Public Service Commission. The decision here under review was directed towards a determination of whether the corrective measures ordered had been appropriately implemented. The Appeal Board responded to that issue. I find that it was under no obligation to look behind the corrective measures ordered.
[14] In Lo v. Canada (Public Service Commission Appeal Board)[4], I found that:
Thus, the fact that Ms. Steadman had been transferred and subsequently resigned did not render the Public Service Commission powerless to take corrective action which, in the circumstances, was only limited by its imagination, if the Board found there to be a defect in the process for the selection of Ms. Steadman.
...
In the result, it would have been open to the Public Service Commission to utilize subsection 21(3) as authority for such measures as it considered necessary to remedy the defect, notwithstanding the fact that Ms. Steadman had been transferred and subsequently resigned.
[15] While the Court of Appeal tempered what it apparently considered to be my excessive language in an appeal of the Lo decision[5] when it wrote:
We do not agree with the motions judge's view that the addition of subsection 21(3) in 1993 gave the Commission the power "to take corrective action which, in the circumstances, was only limited by its imagination". Subsection 21(3), even more so when read together with subsection 21(4), also a new provision, gives the Commission only the power to remedy a defect in the impugned selection process; it does not give the Commission any more power [than] it already had with respect to the appointment itself. To suggest, as does the motions judge, that the Commission is now given the power, through the appeal process, to take any corrective action in favour of the unsuccessful candidate is, in our respectful view, to ignore the very limited purpose of the appeal process. The Commission has not been transformed into a tribunal empowered to pronounce declaratory judgments or to entertain claims in damages or whatever by an unsuccessful candidate.
I am satisfied that it did not detract from the principle that the appropriate response to an Appeal Board decision to assure appointments according to merit lies at the discretion of the Public Service Commission. In the result, the position urged on behalf of the Applicants that the Corrective Measures Board established by the Public Service Commission, and mandated by that Commission was bound by the Nadeau decision and obliged to implement its findings to the letter, simply cannot succeed. I am satisfied that this position is borne out by the decision of my former colleague McKeown J. in Maassen v. Canada (Attorney General)[6], where he wrote at paragraph [16]:
The Applicants' position is that subsection 21(3) demands that the Commission take corrective measures once it has revoked an appointment that has been successfully appealed to the Appeal Board. The Applicants rely on a previous Appeal Board decision, ..., as meaning that the Commission was required to take corrective measures in accordance with the Appeal Board decision. However, in my view subsection 21(3) simply states that the Commission is empowered to remedy a defect determined by the Appeal Board, but does not require the Commission to do so. As stated earlier, [by] subsection[s] 21(2) and 21(3), the only action the Commission is required to take upon successful appeal against appointment is to revoke such appointment. [citation omitted]
[16] Against the foregoing authorities, I am satisfied that, in the decision under review, the Appeal Board was correct when it concluded in the terms of the paragraphs earlier in these reasons quoted from its decision. Put another way, I am satisfied that the Appeal Board did not err in a reviewable manner when it concluded that the Corrective Measures Board, the decision of which was before it, did not result in a selection or selections for appointment otherwise than in accordance with the merit principle.
c) Appropriate remedy
[17] Given the results of my analysis to this point, the issue of appropriate remedy in favour of the Applicant does not arise.
CONCLUSION
[18] Based on the foregoing brief analysis, this application for judicial review will be dismissed. Counsel for the Respondent requested costs. I am satisfied that it is appropriate that costs should follow the event. Thus, an Order will go in favour of the Respondent for costs against the Applicant on the ordinary scale.
_______________________________
J.F.C.
Ottawa, Ontario
April 26, 2004
SCHEDULE A
BACKGROUND
Both Applicants (Mr. Hiseler and Mr. Warren] were, at all relevant times, employed as Foreign Service Officers with the Department of Foreign Affairs and International Trade ("DFAIT") and occupied positions classified at the FS-01 level prior to the 1st of December, 1998.
In April of 1998, DFAIT determined to gradually phase out the FS-01 classification with jobs classified at that level eventually becoming FS-02 level positions. DFAIT created an "FS-01 Career Program" to give those then occupying positions classified at the FS-01 level the opportunity to advance to positions with the FS-02 classification. Those within the Program, if they passed minimum screening criteria, would then advance to an internal promotion competition to determine promotions according to individual merit. The competition was scheduled to be held in October of 1998.
The Promotion Board used selection standards including years of service, experience, performance, abilities, personnel suitability and knowledge. In total, fifty-four (54) officers in positions classified at the FS-01 level were promoted to positions at the FS-02 level with effect from the 1st of December, 1998. Mr. Hiseler was among those promoted. Mr. Warren was not. Mr. Warren and others who were also not promoted appealed the results of the promotion competition to the Public Service Commission Appeal Board (the "First Appeal" and the "First Appeal Board").
Chairperson Yves Nadeau of the First Appeal Board, allowed the appeal. In relation to Mr. Warren, he found that the Promotion Board had been obligated to conduct reference checks based upon the inconsistent content of Mr. Warren's appraisal reports. He directed that the reference checks should extend to requests for specific examples and details to support general statements in Mr. Warren's appraisal reports.
In response to Chairperson Nadeau's decision, the Public Service Commission (the "PSC") wrote to DFAIT directing establishment of a new Selection Board or Promotion Board (the "Corrective Measures Board") to re-assess all participants in the original competition on the basis of relative merit. The Corrective Measures Board was directed to only make decisions based on complete and conclusive evidence and was therefore obliged to conduct reference checks where gaps or contradictions were evident on the face of appraisal reports. Except for such reference checks, the Corrective Measures Board was directed to review no new evidence.
In accordance with the directions from the PSC, DFAIT established a Corrective Measures Board and prescribed its mandate. After an initial screening, each Corrective Measures Board member was directed to review each candidate's most recent three (3) annual performance appraisals and to score the relevant officer for performance, knowledge and potential. Members of the Corrective Measures Board were then instructed to meet to reach a consensus on scores for each officer. A minimum of 180 points out of a possible 300 was established as the promotion level using a designated point system.
As a result of the work of the Corrective Measures Board, 64 officers were promoted to positions at the FS-02 level. Neither Mr. Hiseler nor Mr. Warren achieved sufficient points to qualify for promotion. In the result, four (4) officers, including Mr. Hiseler and Mr. Warren, once again appealed, this time to the Appeal Board chaired by Gaston Carbonneau.
. . .
RELEVANT LEGISLATIVE PROVISIONS
Section 10 and the relevant portions of section 21 of the Public Service Employment Act[7] read as follows:
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.
(2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons.
...
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.
(2) Pour l'application du paragraphe (1), la sélection au mérite peut, dans les circonstances déterminées par règlement de la Commission, être fondée sur des normes de compétence fixées par celle-ci plutôt que sur un examen comparatif des candidats.
...
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.
...
21. (1) Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
...
(2) Subject to subsection (3), the Commission, on being notified of the decision of a board established under subsection (1) or (1.1), shall, in accordance with the decision,
(a) if the appointment has been made, confirm or revoke the appointment; or
(b) if the appointment has not been made, make or not make the appointment.
...
(2) Sous réserve du paragraphe (3), la Commission, après avoir reçu avis de la décision du comité visé aux paragraphes (1) ou (1.1), doit en fonction de celle-ci_:
a) si la nomination a eu lieu, la confirmer ou la révoquer;
b) si la nomination n'a pas eu lieu, y procéder ou non.
...
(3) Where a board established under subsection (1) or (1.1) determines that there was a defect in the process for the selection of a person for appointment under this Act, the Commission may take such measures as it considers necessary to remedy the defect.
(3) La Commission peut prendre toute mesure qu'elle juge indiquée pour remédier à toute irrégularité signalée par le comité relativement à la procédure de sélection.
(4) Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit.
...
(4) Une nomination, effective ou imminente, consécutive à une mesure visée au paragraphe (3) ne peut faire l'objet d'un appel conformément aux paragraphes (1) ou (1.1) qu'au motif que la mesure prise est contraire au principe de la sélection au mérite.
...
SCHEDULE B
ANALYSIS
a) Standard of Review
In Attorney General of Canada v. Bormais[8], I wrote at paragraphs [11] to [15]:
Counsel were in agreement that the issue of whether or not the merit principle had been contravened by the actions of the Selection Board is an issue of law and that therefore a determination in that regard by the Board should be reviewed against the standard of correctness. In Boucher v. Canada (Attorney General)..., Justice Strayer, for the Court, wrote at paragraph [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 [the Public Service Commission Appeal Board'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 [now the Federal Court] should have applied is that of correctness.
I am satisfied that the same could be said with respect to the issue now before the Court.
Counsel for the principal Respondents urged that the foregoing is not the end of the matter with regard to the question of appropriate standard of review but rather that findings of fact made by the Board that underpin its decision as to whether the merit principle was respected are entitled to a significant degree of deference. For this proposition, she referred to paragraph 18.1(4)(d) of the Federal Court Act,... .The relevant portions of subsection 18.1(4) of the Federal Court Act read as follows:
18.1(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
...
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
...
18.1(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_:
...
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
...
While I am satisfied that counsel for the Respondent is correct in this regard, I am also satisfied that there is no issue before the Court with regard to the Appeal Board's findings of fact. Thus, the question of standard of review on findings of fact does not arise in this matter.
Further, I am satisfied that none of the foregoing conclusions regarding the appropriate standard of review would be changed by the outcome of application of a pragmatic and functional analysis, which I do not propose to detail here, to determine the appropriate standard of review, as currently mandated by recent decisions from the Supreme Court of Canada. [citations omitted]
With respect to the last quoted paragraph, I cited Dr. Q v. College of Physicians and Surgeons of British Columbia[9]. Paragraph [21] of the reasons for that decision reads in part as follows:
...In every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach. In Pushpanathan, this Court unequivocally accepted the primacy of the pragmatic and functional approach to determining the standard of judicial review of administrative decisions. Bastarache J. affirmed that "[t]he central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed" ... . However, this approach also gives due regard to "the consequences that flow from a grant of powers" ... and, while safeguarding "[t]he role of the superior courts in maintaining the rule of law"..., reinforces that this reviewing power should not be employed unnecessarily. In this way, the pragmatic and functional approach inquires into legislative intent, but does so against the backdrop of the courts' constitutional duty to protect the rule of law. [emphasis added, citations omitted]
In light of the foregoing quotation, I will briefly turn to a pragmatic and functional analysis.
The Public Service Employment Act contains no privative clause or statutory right of appeal with respect to decisions of Appeal Boards and, indeed, at section 21.1, specifically contemplates judicial review of those decisions. Further, nothing of the face of the Public Service Employment Act contemplates particular expertise on the part of those performing the functions of Chairpersons of Appeal Boards.
An assessment of the purpose of the Public Service Employment Act reveals that its purpose is to protect the integrity of the Public Service and ensure application of the merit principle as reflected in section 10 of the Act. Section 21 of the Act, providing for Appeal Boards and designating their mandates, is central to the purpose of the Act. The purpose of the Act and of section 21 in the context of the Act as a whole suggests considerable deference. That being said, the issue under review, the question of whether the measures taken by the Corrective Measures Board resulted in appointments according to merit, is judicial in nature and therefore militates against deference. In the result, the "purpose analysis" counsels neither for great deference nor exacting scrutiny.
Against the foregoing brief analysis, as in Bormais, I reach the conclusion that the appropriate standard of review on this application is correctness because, I am satisfied, and more will be said about this later, that the sole issue on this application to which selection of an appropriate standard of review applies is the issue of whether or not the decision under review resulted in selections for appointment according to merit.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1425-01
STYLE OF CAUSE: Michael K. Warren v. The Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 5, 2004
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE GIBSON
APPEARANCES:
Mr. Joseph W. Griffiths FOR THE APPLICANTS
Mr. Derek Rasmussen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Goldberg, Kronick & Stroud LLP FOR THE APPLICANTS
Ottawa, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of
Canada
[1] See Schedule A hereto.
[2] R.S.C. c. P-32.
[3] [2003] F.C.J. No. 868, (Q.L.), (not cited before me).
[4] [1997] F.C.J. No. 198, (Q.L.), (not cited before me).
[5] [1997] F.C.J. No. 1784, (Q.L.),(F.C..A.),(not cited before me).
[6] [2001] F.C.J. No. 961,(Q.L.), (not cited before me).
[7] R.S.C. c. P-32.
[8] [2004] F.C.J. No. 253, (Q.L.), (not cited before me).
[9] [2003] 1 S.C.R. 226.