Federal Court Decisions

     T-2146-96

B E T W E E N :

     ALLEN DEERING

     Applicant

     - and -

     ATTORNEY GENERAL OF CANADA

     Respondent

    

     T-2147-96

B E T W E E N :

     RICHARD LAFRANCE

     Applicant

     - and -

     ATTORNEY GENERAL OF CANADA

     Respondent

     REASONS FOR JUDGMENT

     (Delivered from the Bench at Ottawa, Ontario,

     Wednesday, September 17, 1997)

HUGESSEN J.

     These applications for judicial review seek to review and set aside two decisions of an investigator appointed pursuant to section 7.1 of the Public Service Employment Act¹ to investigate complaints filed by the applicants with respect to a "reverse order of merit" selection process for lay-offs pursuant to section 34(1) of the Regulations².

     The parties are in general agreement that the principles which have been established by the jurisprudence relating to section 21 of the Public Service Employment Act in respect of the selection process for appointment or promotion within the Public Service are equally applicable here. Thus, the governing principle is the merit principle set out in section 10 of the Act. The selection process aims to establish the relative merit of the persons concerned. The Appeal Board (or investigator) does not asses the candidates but rather examines whether there are good reasons to doubt whether the selection has in fact been based on relative merit. Finally, the establishment of the required qualifications to fill the position involved is a matter for the Department concerned and not for the Commission, the Appeal Board or the investigator.

     Counsel for the applicants suggested that there should be a higher standard applicable to reverse order of merit selection for lay-off than to selection by order or merit for appointment or promotion; he bases this submission on the obviously greater stakes involved for the persons concerned. I do not find it necessary to comment on this submission other than to say that if it has any applicability it would only be where there are issues of fairness raised with regard to the process. Since that is not the case here, I move on, at once, to the only point of substance upon which I called on the respondent for a reply.

     That point may be shortly stated: the applicants hold appointments to positions as input/output clerks. There can simply be no doubt that the performance of the duties of those positions requires a substantial degree of knowledge. The reverse order or merit selection process did not directly test the knowledge of the persons concerned. The Department did not take the position that there was no knowledge requirement for these employees but rather that, because they had all been in their jobs for some time and were all performing them to at least a satisfactory level, it was not necessary to test knowledge.

     The applicants say that this is wrong. They rely in particular on the judgment of the Court of Appeal in the case of Laberge³. I take from that case the following extract from the reasons of Pratte J.A.:

It also does not seem true to say that a selection board does not have to assess candidates in terms of all the duties of the position to be filled. When a competition is held to fill a position, the competition must be organized in such a way that the capacity of the candidates to fill the position can be determined. This cannot be done without considering the duties to be performed by the incumbent.

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 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 administering a competition to consider the abilities of various candidates in terms of only some of the position's requirements. This question must 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.

That is not to say, however, that a competition would be improper solely because it had not directly assessed the knowledge of candidates so as to decide on their capacity to immediately perform all the duties of the position. When an appeal board has such a complaint before it it must consider whether, in the circumstances, the failure to assess candidates in terms of all the duties of the position to be filled is consistent with the requirements of the merit principle. It may be that the alleged impropriety is only apparent: in many cases a candidate's capacity to perform one duty can be inferred from his capacity to perform another. It may also be that the knowledge required by the performance of certain duties can easily be acquired by someone who has the capacity to perform the other duties of the position. For example, if a candidate had been able to master a complex statute such as the Income Tax Act, it can be assumed that he will easily be able to familiarize himself with another more straightforward statute. The merit principle requires that the candidate be selected who, at the time of the competition, is best able to perform all the duties specified in the competition notice. That does not mean that a candidate cannot undergo the normal training period to become familiar with his new duties, which in the case at bar also included a training course given to other people in the same category already occupying the position.

[at pages 142-143]

     The applicants also rely on the case of Tiefenbrunner et al⁴ and on the following statement, which I suppose is binding on me, at pages 2-3:

Given the duties and statement of qualifications for these positions it was the clear duty of the Selection Board to assess knowledge and to do so in a way that permitted an assessment of the candidates' relative merit ...

     Returning to the case at bar, the investigator dealt with this question in the following terms in the Lafrance file:

2.      The central issue in my investigation is to determine if the selection process undertaken by the Department was such that it identified the overall order of merit of employees, for the purpose of determining the order in which employees would be laid off. For this selection process management decided that knowledge would not be a distinguishing factor among the employees and therefore decided not to include a specific knowledge qualification when it developed the statement of qualifications for Input/Output Clerk. Instead, management developed a statement of qualifications which included five abilities and three personal suitability traits. The issue then is not whether knowledge was assessed, as it did not form part of the qualifications for the position, but rather whether the eight qualifications established were capable of determining the overall merit of employees as Input/Output Clerks. It seems to me that the first three abilities, in particular, evaluated the employees' capacity to perform the principal functions of the position. The supervisor's assessments indirectly (and in some cases directly) took into account the knowledge necessary to perform those functions.

Therefore I conclude that the Department did not act unreasonably in not directly comparing employees' knowledge. The Committee assessed the employees' ability to apply their knowledge through the information received from the supervisor's narrative assessments. In the circumstances of this case I am unable to conclude that the lack of direct assessment of knowledge had any impact on the determination of the relative merit of employees.

(Applicant's Application Record, page 88)

     The point does not appear to have been raised or dealt with in the Deering file⁵.

     In my view, the first of the quoted paragraphs of the investigator's decision is clearly erroneous. While there can be no doubt that, as I have said, it is for the Department to establish the qualifications for a position, the Department here did not, does not and could not deny that knowledge is an essential qualification for these positions. What the investigator refers to in the quoted passage as a "statement of qualifications," (which, it may be noted, does not even bear that title), is nothing of the sort; rather, it is, as the investigator describes it, a list of 5 "abilities" and 3 "personal suitability traits" required for the position. I have no doubt that it is not open to the Department to simply disregard a whole area of requirements for performing the duties of a position when it becomes necessary to establish the reverse order of merit by testing the qualifications of persons occupying that position.

     That is not an end of the matter, however. While knowledge was and is a requirement of these positions and had to be assessed, it is quite clear to me from the quoted passage in Laberge, supra, that knowledge does not always need to be directly tested. The examples given by Pratte J.A. of inferring capacity to perform one duty from the actual performance of other duties is instructive. There is no requirement that the selection process should always contain a separate test under the rubric "knowledge"; it is enough that the required knowledge is in fact assessed in one way or another..

     In the present case, what the investigator referred to as the "statement of qualifications" was in fact a practical test. It allowed, as the investigator said, the selection committee "to test the employees' ability to apply their knowledge."

     That conclusion, like the one that follows to the effect that the failure to assess knowledge directly had no impact on the determination of the relative merit of the employees, was one of fact. It is not vitiated by the earlier error which I have identified. In my view it was not unreasonable and was clearly open to the investigator.

     Accordingly, I conclude that the applications fail and must be dismissed.

     "James K. Hugessen"

     J.

OTTAWA, Ontario, September 17, 1997.

__________________

¹      R.S.C. 1985, c. P-33:

7.1 The Commission may conduct investigations and audits on any matter within this jurisdiction.

7.1 La Commission peut effectuer les enquêtes et vérifications qu'elle juge indiquées sur toute question relevant de sa compétence.

²      Public Service Employment Regulations, 1993, SOR/93-286, 31 May, 1993

34.(1) Where the services of one or more employees of a part of the organization are no longer required by reason of lack of work, the discontinuance of a function or the transfer of work or a function outside the Public Service, the appropriate deputy head, subject to subsection (2), shall assess the merit of the employees employed in similar positions of the same occupational group and level in that part of the organization,and identify the employees who may be laid off in reverse order of merit, beginning with the least meritorious, and may declare those employees to be surplus employees.

34. (1) Lorsque les services d'un ou de plusieurs fonctionnaires d'un secteur de l'organisation ne sont plus nécessaires faute de travail, par suite de la suppression d'une fonction ou à cause de la cession du travail ou de la fonction à l'extérieur de la fonction publique, l'administrateur général compétent, sous réserve du paragraphe (2), évalue le mérite des fonctionnaires qui occupent des postes semblables des mêmes groupe et niveau professionnels dans ce secteur et désigne, par ordre inverse de mérite en commençant par le moins méritant, les fonctionnaires qui peuvent être mis en disponibilité; il peut déclarer ces derniers fonctionnaires excédentaires.

³      Laberge v. Canada (Attorney General), [1988] 2 F.C. 137

⁴      Tiefenbrunner et al v. Canada (A.G. ), (November 10, 1992) A-915-91(F.C.A.)[ unreported]

⁵      Although the point has no practical consequence in the circumstances, this fact by itself makes the Deering application technically inadmissible.