Date: 20040917
Docket: A-585-03
Citation: 2004 FCA 301
NOËL J.A.
EVANS J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
JAMES MERCER, LINDA WILCOX, ANNETTE PEACH
AND CATHY GILLES-BARRON
Respondents
Heard at Ottawa, Ontario, on August 31, 2004.
Judgment delivered at Ottawa, Ontario, on September 17, 2004.
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: RICHARD C.J.
EVANS J.A.
Date: 20040917
Docket: A-585-03
Citation: 2004 FCA 301
CORAM: RICHARD C.J.
NOËL J.A.
EVANS J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
JAMES MERCER, LINDA WILCOX, ANNETTE PEACH
AND CATHY GILLES-BARRON
Respondents
REASONS FOR JUDGMENT
[1] This is an appeal from an Order of the Federal Court (2003 FC 1344) allowing the application for judicial review of a decision of the Public Service Commission Appeal Board (the Appeal Board) dated May 16, 2002. In evaluating the applications of candidates for a position within the Department of Human Resources Development Canada (the employer or department), a global or "compensatory" approach was used by the Selection Board to assess the qualifications established and advertised by the employer for a closed competition.
[2] On appeal from the decision of the Selection Board, the Appeal Board maintained the Selection Board's assessment of the candidates on the basis that the global approach did respect the merit principle in the circumstances of this competition. The Appeal Board's decision was set aside by the Federal Court, and the present appeal ensued.
[3] This appeal was heard together with an appeal from a second decision by the applications Judge rendered on the same day on which she relied in disposing of the present matter (Attorney General of Canada v. Maureen Carty et al., 2003 FC 1338). Because there are some differences in the underlying facts, separate reasons are being issued to dispose of the two appeals. However, since the principal question in both cases is identical, the reasons for the disposition are essentially the same.
Facts
[4] In June 2001, the employer advertised Investigator and Control Officer positions for its office in Harbour Grace, Newfoundland. Candidates who met Education and Experience prerequisites set out by the employer were then assessed against the following three qualifications for appointment advertised in the Statement of Qualifications (the Statement): Knowledge, Abilities and Personal Suitability.
[5] Under each of these qualifications, several elements (which I will refer to as sub-factors) were advertised:
Knowledge: Knowledge and understanding of the business of Human Resources Development Canada
Knowledge of investigative practices and tools (including systems) related to maintaining the integrity of the Employment Insurance Fund
Abilities: Ability to carry out fact-finding
Ability to analyse problems, organize information, verify key factors and generate recommendations
Ability to apply principles and procedures
Ability to communicate
Personal Suitability: Client focus
Openness to change and learning
Initiative
Working with others
Positive attitude
[6] None of the sub-factors were identified as essential or non-compensatory. The Selection Board, the Appeal Board and the Federal Court Judge, relying on the established practise that sub-factors listed on the statement are compensatory unless the employer specifies otherwise (reasons of the Appeal Board, page 34), conducted their analysis on the basis that all sub-factors were compensatory, i.e., poor performance in one could be compensated by excellent performance in another.
[7] Pass marks were established by the Selection Board for each qualification (60% for Knowledge and 70% for Abilities and Personal Suitability). However, no pass mark was established for the sub-factors. Rather, the Selection Board undertook a global assessment of these sub-factors under the respective qualifications of "Knowledge", "Abilities" and "Personal Suitability" and those who met the required percentage for each of these qualifications were considered to meet it.
[8] The respondents Mercer and Wilcox were ruled out of the competition because they failed to meet the pass mark required to meet the Abilities qualification. The other respondents met the minimum standards for each of the three qualifications and were eventually awarded the positions.
[9] The unsuccessful respondents appealed to the Appeal Board arguing amongst other things that the global approach used by the Selection Board was inconsistent with the merit principle because it allowed the Selection Board to ignore some of the advertised sub-factors (reliance was placed on Nelson at al v. Canada (Attorney General) et al., [2001] 204 F.T.R. 287 and Boucher v. Attorney General of Canada, [2002] 252 N.R. 186 (C.A.) which was referred to in Nelson et al.).
[10] The Appeal Board rejected this argument. It said in the course of its reasons:
It is well settled that the department may specify which, if any, of the particular sub-factors of qualifications are "non-compensatory" (mandatory). If the department identifies a particular sub-factor as being "non-compensatory", in effect the selection board must assess the candidate as satisfactorily meeting that particular sub-factor in and of itself, otherwise the candidate could not be considered as qualified for appointment, regardless of that candidate's success in relation to other sub-factors of that qualification. With respect to a non-compensatory sub-factor of a qualification, the candidate cannot overcome (compensate for) a failure to meet that particular requirement by adequate performance with respect to the other sub-factors of that qualification. It is clearly established that a selection board cannot alter the qualifications established by the department in its statement of qualifications. Furthermore, the selection board must assess all of the qualifications that have been established for the position.
...
The statement of qualifications established by the department which formed the basis of consideration in Boucher and McBride expressed the various qualifications and their associated sub-factors in a manner which could be characterized as quite normal and usual, according to the common practice of many departments. According to that practice, qualifications such as 'education', 'experience', 'knowledge', 'abilities and skills', and 'personal suitability' are specified in the statement of qualifications, all or some of which are comprised of a greater or lesser number of sub-factors, but with no particular sub-factor(s) identified by the department as "non-compensatory" (or mandatory). In such instances, according to common assessment practices, a candidate is traditionally assessed in an overall manner with respect to each qualification factor (for example, Knowledge), by considering each of the various sub-factors associated with that particular qualification, but without requiring the candidate to "pass" each and every sub-factor of knowledge. Likewise, for the other qualifications such as abilities and personal suitability. That traditional approach was described by the department in disclosure, and was applied in the selection process presently being appealed.
Importantly, by contrast, in Nelson [et al.], the statement of qualifications established by the department was expressed in such a way (through the use of the term "must") as to make each and every of the several sub-factors of each and every qualification factor "non-compensatory" in nature. That meant a candidate had to meet every sub-factor of every qualification in order to be found qualified for appointment to the position in question.
...
Thus, I have concluded that the selection board was correct in determining that a candidate must 'pass' in an overall fashion each qualification factor ('Knowledge', 'Abilities and Skills', and 'Personal Suitability'), but was not required to 'pass' each and every sub-factor of each qualification factor in order to be considered successful in the selection process. A candidate's weakness in any particular sub-factor could be overcome (compensated for) by that candidate's strength in other sub-factor(s) of the qualification, such that the candidate might meet the qualification factor overall (globally), thus be considered quite properly as qualified in respect of that particular qualification.
[11] Upon a judicial review application of this decision, the applications Judge took issue with the correctness of the Board's reasoning. Adopting the reasons which she gave in Carty, she held, based on her reading of the case law, that each discrete form of qualification, whether compensatory or not, had to be assessed in order to be consistent with the merit principle. As the approach used in this case could result in a compensatory sub-factor being ignored, the applications Judge concluded that it was inconsistent with the merit principle. She said at paragraph 14 of her reasons in Carty:
... it is theoretically possible that a candidate could score 0 in a given qualification and still succeed. Since that qualification was established by the IRB, even though identified as non-compensatory [sic], it is the obligation of the Selection Board to evaluate the qualification in some meaningful way. Although, it is certainly up to the Selection Board to give different weights to the different qualifications, it is not open to the Selection Board to ignore any of the qualifications. That was the finding in each of Boucher, supra and Nelson, supra. In Justice Muldoon's view, each discrete qualification must be evaluated. Inherent in the concept of evaluation is the establishment of some standard of measurement - a "pass mark" - for each qualification.
[12] At the conclusion of these reasons, she made clear that her disagreement with the approach used by the Selection Board was limited to a narrow point:
[16] The assessment carried out by the Selection Board was detailed and conscientiously completed. In my view, the only additional step required to comply with the legal requirements is to establish a threshold for each qualification. It is entirely in the hands of the Selection Board to carry out that step. In my view, a "pass mark" for an individual qualification (other than those that are non-compensatory) may be established, in the total discretion of the Selection Board.
[13] This is the decision now under appeal.
Question in Issue
[14] The question to be answered on appeal is whether the applications Judge erred in allowing the application for judicial review on the basis that the merit principle required the Selection Board to establish a "pass mark" for each sub-factor, even if compensatory, and to assess the candidates against that mark. This is a pure question of law to be assessed against a standard of correctness (Housen v. Nikolaisen, [2002] 25 C.R. 235 at 247).
Disposition
[15] Before addressing this issue, it is useful to recall two basic principles which govern hiring in the public service. The first is that appointments must be based on merit as determined by the Public Service Commission (see subsections 10(1) and 12(1) of the Public Service Employment Act, R.S., c.P-32, s. 1). In this context, merit means "that the best persons possible will be found "having regard to the nature of service to be performed"" (Nanda v. Public Service Commission, [1972] F.C. 277 at 297 per Jackett C.J.).
[16] This leads to the second governing principle which is that the definition of a position and the establishment of the qualifications for that position are the sole responsibility of the employer as it is the best judge of its needs (see for instance Laberge, supra at page 142; Brown v. Public Service Commission, [1975] F.C. 345 at 348 to 350 (C.A.); Canada v. Blashford, [1991] 2 F.C. 44 at 48 and 56 (C.A.)). This prerogative logically brings with it the right to determine which qualifications are essential and which, while useful or desirable, are not essential (see as to this Standards for Selection and Assessment published by the Public Service Commission at page 3, Joint Book of Authorities, Tab A-3).
[17] The applications Judge was of the view that some threshold had to be met for all forms of qualifications, including those that are compensatory. Although it is common ground that each qualification and sub-factor was in fact considered by the Selection Board, the applications Judge was concerned that, in the absence of some minimum threshold being established, it was theoretically possible that a candidate could score 0 on a given sub-factor and still meet the pass mark for the relevant qualification (reasons, paragraph 14).
[18] This, according to her, could be construed as either an instruction by the employer to the Selection Board "to administer a competition to consider only some of the qualifications for the position" contrary to the principle set out in Laberge v. Canada (Attorney General), [1988] 2 F.C. 137 (C.A.) (reasons, paragraph 15). Alternatively, the applications Judge reasoned that this approach allowed the Selection Board to decide on its own that some of the qualifications selected by the employer are optional, contrary to the principle set out in Nelson et al., supra, and Boucher, supra (reasons, paragraph 15 infine).
[19] In my respectful view, the three decisions on which the applications Judge based her conclusion do not have the effect which she attributed to them and do not address the issue which arises in the present appeal.
[20] In Laberge, supra, this Court held that the failure by a Selection Board to "assess the capacity of candidates to perform all the duties of the position to be filled" (page 141, 1st full paragraph) as identified by the employer (page 142, 2nd full paragraph) was in breach of the merit principle. One of the identified requirements was that the successful candidate "would have to be" very familiar with the Access to Information Act and the Privacy Act (page 139, 3rd full paragraph). The Court stated at page 142:
The Department concerned is of course responsible for defining positions and the qualifications they require. Here, the Department did this by describing the position of co-ordinator as including the duty of administering the Access to Information Act and the Privacy Act and as requiring a good knowledge of these two Acts. The question to be answered here is whether a Department which has determined the duties attached to a position can, in a competition held to fill that position, require a selection board responsible for administrating a competition to consider the abilities of various candidates in terms of only some of the position's requirement. This question must be of course be given a negative answer. Contrary to what the appeal board found, the function of a selection board is not merely to carry out the instructions of the Department concerned. The selection board is only a tool used by the Public Service Commission to carry out the duty imposed on it by section 10 of the Public Service Employment Act. The Department does not have the power to alter the obligations imposed on the Commission by section 10 of the Act. Neither the selection board nor the Commission is a menial of the various Departments.
[21] It is easy to see why the failure by a Selection Board to assess a qualification set out by the employer results in a breach of the merit principle as it necessarily follows that the most meritorious candidate may not have been selected. Instructions by the employer to ignore a qualification which it has itself identified as necessary for the position to be filled and which remains in effect at the time of the competition cannot of course change this result. This is the proposition for which Laberge stands.
[22] However, where an employer identifies a qualification by reference to sub-factors which it effectively designates as "compensatory", and a Selection Board evaluates this qualification according to an appropriate minimum standard as it did here, I fail to see how the merit principle can be said to have been breached only because a minimum "threshold" or "pass mark" was not assessed for each sub-factor.
[23] Sub-factors that are effectively designated as "compensatory" are by definition non-essential. Nevertheless, they remain relevant to the assessment of the candidate's merit as they are considered by the employer to be equivalent or comparable indicators of the qualification that is sought to be identified. Hence, excellence in one can compensate for deficiencies in another. It cannot be said that the compensatory sub-factors did not lend themselves to this designation.
[24] Since it is up to the employer to define the advertised positions and determine the qualifications which they require, the employer can identify sub-factors that can be compensated by others. Hence, I fail to see how adding a "pass mark" or "threshold" requirement for these sub-factors can be of assistance in identifying the most meritorious candidate. Indeed, where an employer has made such a designation, the best candidate has to be the one who achieves in the aggregate the highest mark for the qualification, regardless of his or her score in any of the individual sub-factors.
[25] The decision rendered by this Court in Boucher, supra, can also be distinguished when regard is had to the compensatory nature of the sub-factors in the present case. In Boucher, the Court was confronted with a failure by the Selection Board to assess an advertised qualification (as opposed to a sub-factor) which was understood to be mandatory. The Court stated at paragraph [8]:
... 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. See Bambrough v. Appeal Board, [1976] 2 F.C. 109; Attorney General v. Blashford et al, [1991] 2 F.C. 44.
[26] In Nelson, supra, the Trial Division of this Court (as it was then constituted) was confronted with a failure to assess sub-factors, but as noted by the Appeal Board in its reasons, the sub-factors in question had each been identified by the employer on the statement as being mandatory (Nelson, supra, paragraph 3). That is the context in which the Court concluded that [paragraph 26]:
It was not open to the Selection Board to eliminate qualifications during the selection process. ... Changing the advertised qualifications by eliminating one or more was unfair because potential candidates may have failed to apply because they recognized that they did not have all of the advertised qualifications.
[27] This issue does not arise in the present matter given the fact that none of the sub-factors were advertised as mandatory and given the Appeal Board's unchallenged finding that, based on the established practise, they were understood to be compensatory.
[28] For these reasons, I would allow the appeal, set aside the decision of the applications Judge and giving the decision which she ought to have rendered, I would dismiss the judicial review application against the decision of the Appeal Board. The appellant should have its costs here and below.
"Marc Noël"
J.A.
"I agree.
J. Richard, C.J."
"I agree.
John M. Evans, J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
Appeal from an Order of the Federal Court dated November 14, 2003,
Court File No. T-943-02
DOCKET: A-585-03
STYLE OF CAUSE: Attorney General of Canada v. James Mercer et al.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 31, 2004
REASONS FOR JUDGMENT BY: Noël J.A.
CONCURRED IN BY: Richard C.J.
Evans J.A.
DATED: September 17, 2004
APPEARANCES:
Mr. J. Sanderson Graham
Ms. Marie Crowley FOR THE APPELLANT
Mr. David Yazbeck FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE APPELLANT
Raven, Allen
Cameron, Ballantyne & Yazbeck, LLP
Ottawa, Ontario FOR THE RESPONDENTS