Date: 20050419
Docket: T-994-02
Citation: 2005 FC 525
Ottawa, Ontario, this 19th day of April, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
DONALD VOGAN
Applicant
and
PUBLIC SERVICE COMMISSION OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Vogan competed unsuccessfully for a position as a brick and stone mason with the Department of National Defence at the Canadian Forces Base in Kingston, Ontario. He believes that he was improperly screened out of the competition without an interview and objects to the Public Service Commission's decision to make it an open competition. His appeal to the Commission's Recourse Branch was also unsuccessful. He has asked the Court to overturn those decisions and revoke the appointment of the successful candidate. These are my reasons for concluding that I am unable to grant his application.
[2] Mr. Vogan initially responded to a call for applications posted from November 19-23, 2001. The posting called for "Acceptable experience as a brick and block layer" and "Possession of a valid journeyman's certificate in Masonry for Ont". Copies of all certificates and licences were to be attached to the candidate's application form. There were three other applicants for the job, at least one of whom was screened out at this stage.
[3] Mr. Vogan submitted his application, copies of his licences and certifications and a resumé. The resumé indicated in the Summary of Experience section that he had an Ontario "Plaster and Masonry Certificate". In the Employment Experience section his resumé indicated that in the period 1981-1993 he had, among other things, "4 years Masonry and Preventative Maintenance" and in the period from 1993 - Present he had "Various jobs in construction".
[4] At the time of his application, Mr. Vogan was working in a brick and mason position at Canadian Forces Base ("CFB") Borden. He had previously done similar work at CFB Kingston. His home was in the Kingston area and he hoped to obtain an indeterminate position at that base.
[5] In first reviewing Mr. Vogan's application, the Screening Board determined that it lacked a clear indication of brick and block laying experience. A member of the Board, Human Resources Officer Janet Bryant, contacted Mr. Vogan by telephone on December 3, 2001 to let him know of the concerns and to request that he provide information in writing in support of his experience. She followed this call up with a letter the next day, requesting written information before December 12, 2001. No response was received from Mr. Vogan and he was then screened out of the competition.
[6] Mr. Vogan conceded at the hearing of this application that had he responded to Ms. Bryant's requests to provide information about his experience in writing he would not have been screened out of the competition. However, he perceived this request as yet another in a series of efforts to prevent him from obtaining a permanent position at CFB Kingston and chose to take the matter directly to the Public Service Commission ("PSC") without waiting for the outcome of the competitive process.
[7] Mr. Vogan's complaint to the PSC in this instance focussed on the fact that he was being screened out of the competition by reason of the Selection Board's interpretation of the experience requirement. In argument before me, Mr. Vogan raised a number of other concerns including that there was a related closed competition run at the same time for CFB employees in the Kingston area, and that the area of selection for the open competition was too limited (within 65 km of Kingston). Mr. Vogan argued that it was improper for the Commission to hold open and closed competitions for the same type of position at the same time. He further argued that the Commission was required to staff from within before holding an open competition. As a DND employee holding a term position exceeding six months, Mr. Vogan argues he would have been eligible for a closed competition.
[8] The Recourse Branch conducted an investigation of Mr. Vogan's complaint under section 7.1 of the Public Service Employment Act, c. P-33 (the "PSEA"). In the decision under review, rendered on May 30, 2002, the Recourse Branch (the "Branch") held that Mr. Vogan was not improperly screened out of the competition. The investigator, Ms. Sells, found that the Selection Board's decision was not unreasonable, and that the applicant had the responsibility to prove how his experience related to the required qualifications. She found that the required experience was not evident on the application materials submitted. At paragraphs 20-22 of her decision, Ms. Sells stated:
20. It is understandable that the complainant may have felt, as he possessed a certificate for Brick and Stone Mason, he had the required experience in Brick and Block. However, the assessment of experience is different from the assessment of education or professional certifications. The department required experience in brick and block laying. The Selection Board was looking, as described by Mr. Sporring, for the "currency" or when the applicant had gained their experience [sic], which they were unable to assess in the case of the complainant.
21. The complaint asserted that, as he had previously been employed with DND, the Selection Board could have consulted his performance records, which would have shown he met the experience requirement. I must remind the complainant that the onus is on him, as the candidate, to demonstrate that he meets the requirements set out by the department. While the complainant may have possessed the required experience, in order to provide a fair, transparent and equitable process to all applicants, the responsibility falls to the applicants to ensure all required information is provided to the Selection Board in order that they can make their determination. I therefore conclude the Selection Board acted reasonably in proceeding with the complainant's application with an additional opportunity to demonstrate he had the required experience, however, he chose not to respond to this request. The allegation is unfounded.
22. I wish to point out that the deputy head or his/her representatives has the authority to set the qualifications for a position he or she is staffing, with regard to the duties to be performed. It is not essential for similar positions in different organizations or even in the same organization to require the same qualifications. A number of facts may be weight [sic] in determining qualifications including the current strengths and weaknesses of the work unit, where the vacancy exists and what particular qualification would balance out the needs of the unit. While the complainant may have successfully used the submitted resumé for similar positions previously, I do not find that to have bearing on this instance. As previously noted, the qualifications in each competition may vary according to the needs of the organization at the time.
ISSUES
[9] 1. What is the appropriate standard of review?
2. Did the Recourse Board err in her conclusion that the Selection Board acted reasonably and in accordance with the merit principle?
Standard of Review
[10] Mr. Vogan represented himself in these proceedings. While he did not address this question directly, I would infer from his otherwise able submissions that he believed a standard of reasonableness would be appropriate. The respondent suggests that the review of the Recourse Board's decision should be highly deferential because the Board was making findings of fact. Therefore, the patently unreasonable standard applied in Petruszkiewicz v. Canada (Attorney General), [1997] F.C.J. No. 1789 (T.D.) should apply to this situation.
[11] A similar conclusion was reached by MacKay J. in Adams v. Canada (Attorney General)(2002), 216 F.T.R. 190 (T.D.). In light of the broad purposes of the PSEA and the investigator's expertise, acting on behalf of the Commission, the exercise of her judgment in assessing the facts and implications underlying a complaint warrants substantial deference. Justice MacKay distinguished a decision of the Federal Court of Appeal in which the standard of correctness had been applied to a decision of the PSC Appeal Board, as it dealt with the Board's interpretation of the PSEA: Boucher v. Canada (Attorney General) (2000), 252 NR 186 (F.C.A.).
[12] In Oriji v.Canada (Attorney General) (2004), 252 F.T.R. 95 (T.D.), I held, based on a pragmatic and functional analysis, that questions of mixed fact and law as to whether a PSEA investigator had erred in her findings were subject to an overall standard of reasonableness simpliciter. Where particular questions of law could be extricated from the investigator's factual findings, I would apply the correctness standard.
[13] In this case, there is no clear question of law or of mixed law and fact. Accordingly, I find that the investigator's findings deserve considerable deference and have reviewed them on the standard of patent unreasonableness. However, even if I were to have applied the reasonableness simpliciter standard, I would still have found that there is no reviewable error in the investigator's decision.
Error by the Recourse Branch
[14] Mr. Vogan submits that the Public Service Commission failed to exercise its jurisdiction by failing to hire from within the public service before appointing from outside pursuant to regulation 16(1). He also submits that the investigator only wanted to address the issue of the completeness of his application, not additional evidence that could have been presented about his previous masonry experience, including a term appointment in 1993 when he met the requirements for a mason's position, so she ignored the material before her. Given his resumé and experience, a reasonable person would wonder why he was not screened into the competition. Mr. Vogan relies on Laberge v. Canada (Attorney General), [1988] 2 F.C. 137 (F.C.A.) and Lai v. Department of National Revenue (Taxation) (January 5, 1994), 93-Tax-1122 (Public Service Commission Appeal Board).
[15] The respondent submits that the onus was on the applicant to provide sufficient information to the Selection Board to allow him to be screened into the competition: Chang v. Attorney General of Canada [2000] F.C.J. No. 767 (T.D.). The competition poster made it clear that Mr. Vogan had to demonstrate his qualifications. Ms. Bryant advised him that his materials were deficient, and allowed him the opportunity to submit more written information, but he failed to do so.
[16] Accordingly, the respondent submits that there was nothing patently unreasonable in the Recourse Board's decision. It did not come to a conclusion that no reasonable person could form: Scarizzi v. Marinaki (1994), 87 F.T.R. 66 (T.D.). It was reasonable to conclude that the Applicant did not possess sufficient experience to do the job based on the evidence before the Selection Board, and the Recourse Board made no error in affirming that conclusion.
[17] There is no evidence before me to support a conclusion that the PSC erred in failing to appoint from inside the public service. I had no evidence that anyone on the eligibility list for this job was in fact from the public service, nor is there any evidence related to the determination of whether to have an open or closed competition. In any event, Mr. Vogan fairly conceded that this question was not squarely before the Recourse Branch, as he had not thought of it when he made his complaint. Consequently the question is not properly subject to judicial review.
[18] I would not find that the Recourse Branch erred by ignoring material before her. The material that is included in the tribunal record was fully considered. Mr. Vogan has presented a good deal of material that he submits was before the decision-maker, but there is no proper evidence before me that it was submitted to and improperly rejected by the Board.
[19] I agree with the respondent that the onus was on the applicant to indicate clearly in the application materials the manner in which he was qualified for the position applied for: Chang, supra. I also agree with Mr. Vogan, that it would have been reasonable to expect that a resumé that indicated, as his did, at least four years of masonry experience, would be given more than preliminary consideration. Indeed Mr. Sporring, a member of the Selection Board, had supervised Mr. Vogan in one of his previous jobs and might have been expected to be familiar with his work experience. However, that was more than a decade earlier. Mr. Sporring took the position during the investigator's fact finding meeting that he had no recent knowledge of the "currency" of Mr. Vogan's experience.
[20] I can appreciate Mr. Vogan's frustration that the Selection Board was not willing to read the necessary experience into his resumé, given his background with the Department. As he put it in argument, having a masonry certificate necessarily implies knowing how to lay bricks and blocks as well as stones. In this competition, the selection process required a practical demonstration of that knowledge by the successful candidate. I have no doubt that Mr. Vogan could have provided such a demonstration if he had not been screened out.
[21] Mr. Vogan argues that the position that the Selection Board was seeking to fill is exactly the same as other jobs he has done at CFB Kingston in the past and was currently doing at CFB Borden. There is not enough masonry work to justify keeping masons on staff for that purpose alone. When there is a need for a brick or block building to be erected, contracts are let to the private sector. Accordingly, he argues, masons on the bases do a variety of general preventative maintenance tasks, not construction. I expect that having worked in and around the bases for over ten years he has a good idea of what the job involves.
[22] However, there was evidence before the Recourse Branch that the Selection Board was not seeking to fill a position that was exactly the same as the masonry finishing and repair work that Mr. Vogan had previously performed for this employer. In any event, it was entirely within the purview of the employer to determine that it required a mason with brick and block laying experience. Whether the sucessful candidate would ever lay a single row of either in the course of his or her employment is immaterial.
[23] While Mr. Vogan might well have had previous experience in block and brick laying, particularly in the process of receiving his Mason certification, there was no clear indication in his resumé that he had done any such work since receiving that certification in 1992. It was incumbent upon him to satisfy that requirement of the position.
[24] On the face of the record, there is no evidence that the Selection Board purposefully set out to eliminate Mr. Vogan despite his conviction to the contrary. Indeed, the fact that Ms. Bryant sought to have him clarify his experience indicates to me that, rather than attempting to screen the applicant out, every reasonable effort was being made to screen him in so he could fairly compete for the position. Mr. Vogan was put on notice that he was in danger of being screened out, but did not respond. In the result, he effectively screened himself out of the process.
[25] Accordingly, I find no reviewable error in the Recourse Branch's decision and this application will be dismissed.
[26] The respondent has requested costs in a minimal amount. I will exercise my discretion to direct that no costs are payable.
ORDER
THIS COURT ORDERS that the application is dismissed. The parties shall bear their own costs.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-994-02
STYLE OF CAUSE: DONALD VOGAN
AND
PUBLIC SERVICE COMMISSION
OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 18, 2005
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: April 19, 2005
APPEARANCES:
Donald Vogan FOR THE APPLICANT
(Self-represented)
Michael Roach FOR THE RESPONDENT
SOLICITORS OF RECORD:
DONALD VOGAN FOR THE APPLICANT
Battersea, Ontario (Self-represented)
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General for Canada
Ottawa, Ontario