Date : 19990204
Docket : T-615-98
BETWEEN:
BRIAN HASSALL AND HEATHER GARLOW
Applicants
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
McGILLIS J.
INTRODUCTION
[1] The applicants have challenged by way of judicial review a decision of the Public Service Commission Appeal Board ("Appeal Board"), appointed under section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended ("Act"). In her decision, the Chairperson of the Appeal Board concluded that the Selection Board had properly screened the applicants out of a closed competition for auditor positions in the Department of National Revenue ("Revenue Canada") on the basis that they failed to meet the educational requirements of the positions.
FACTS
[2] In 1996, Revenue Canada held two closed interdepartmental competitions for vacancies in tax auditor and excise auditor positions at the AU-1 level. Two separate competition posters were used to advertise the vacancies. Each position had a distinct job description, but the duties involved were similar. As a result, some qualifications for the positions were assessed jointly. All candidates who were found by the selection process to be qualified were to be appointed to positions. The closing date for the competitions was December 20, 1996.
[3] The applicants were screened out of the competitions on the basis that they failed to meet the educational requirements specified in the statements of qualifications for the two types of auditor positions. The educational requirements for the positions were specified in the competition posters and in the statements of qualifications as follows:
| Educational/Occupational Certification: |
| Eligibility for a recognized professional accounting designation (i.e. C.A., C.G.A., C.M.A.) or graduation with a degree from a recognized university with acceptable specialization in accounting* acquired within or outside of the degree program or present or past appointment to a position classified in the Auditing Group (AU). *"Acceptable specialization in accounting" is defined as completion of acceptable courses in at lease five study areas in accounting and/or auditing. The following study areas are mandatory: |
| Introductory Accounting, Intermediate Financial Accounting and Advanced Financial Accounting. The other two study areas must be chosen from among the following: Auditing, Cost Accounting, Management Accounting and Accounting Information Systems, (including a computer science course). |
[4] The competition posters also contained information concerning the means by which candidates would be required to establish their educational qualifications. In that regard, the competition posters stated as follows:
| Notes: |
| 2. Candidates must include with their application evidence that they meet all the above qualifications. A copy of an accounting designation, university degree and copies of transcripts must be provided to support your educational qualifications if you do not presently occupy a position in the Auditing Group. Failure to provide sufficient information may result in candidates being screened out of this selection process. |
| 3. All candidates must meet the educational screening criteria by the closing date indicated on this poster. |
[5] Despite the reference in the competition posters to the necessity of providing transcripts, the screening criteria in the statements of qualifications made no reference to the documentation required to prove the educational requirements.
[6] Revenue Canada's Policy on Qualifications Required for Entry to the AU Group, dated August 1993, outlines the approach to be taken in staffing AU positions.
The policy provides, among other things, as follows:
- . PURPOSE:
| To ensure that Revenue Canada employees and recruits have a strong background in accounting studies before entering the AU group in the Department. |
| ... |
| 4. GUIDELINES: |
| Academic Achievement |
| The applicant must have achieved the pass mark of the recognized educational institution in each of the courses identified for a particular study area required under "acceptable specialization in accounting". |
| ... |
| 5. PROCEDURES: |
| ... |
| Employees are expected to request evaluation of their accounting credentials by the Department, by a recognized university, or by one of the recognized professional accounting associations. A certified copy of the degree and related transcripts or a written confirmation from one of the recognized professional accounting associations should be available before or at the time the Screening Board meets in the course of a selection process. |
[7] In conducting the screening of the candidates, the Selection Board determined that the applicants did not meet the educational requirement for the advanced financial accounting course, on the basis that they had failed to provide transcripts by the closing date of the competitions to confirm their successful completion of the course. The Selection Board was aware that both applicants had taken the advanced financial accounting course at a university, and that they had written their final examination on December 11, 1996. The applicants were unable to obtain transcripts of their marks in the course, as it takes six to eight weeks for the university to prepare such documents. In all other respects, the applicants met the screening criteria for the competitions.
[8] On December 12, 1996, prior to the closing date of the competitions, the applicant Hassall informed the Selection Board, with his university instructor's approval, that he had passed the advanced accounting course. On January 6, 1997, the Selection Board advised the applicant Hassall that he did not meet the educational requirements for the position. On the next day, a person from Human Resources in Revenue Canada advised the applicant Hassall that he would be required to submit a certified transcript from the university to confirm his successful completion of the advanced accounting course. On or about January 12, 1997, the applicant Hassall submitted a letter from his instructor confirming that a final passing grade was "officially submitted" for him in the course. The Chairperson of the Selection Board subsequently informed the applicant Hassall that he did not meet the screening criteria, as he had not submitted a transcript from the university prior to the completion of the screening process.
[9] The applicant Garlow also wrote the examination for the advanced accounting course on December 11, 1996. However, since she had been advised by an official in Human Resources at Revenue Canada that a letter would be insufficient proof of successful completion of the course, she did not submit any further information to the Selection Board concerning that requirement. The applicant Garlow received an official mark of A- on the advanced accounting course. However, she was screened out of the competition by the Selection Board on the basis that "...a copy of the transcript was unavailable by the closing date..." of the competitions.
[10] A written examination was conducted on January 16, 1997 to assess the knowledge required for the tax or excise auditor positions, as well as the knowledge and ability factors relevant to both positions. The applicants were not permitted to write the examination, as they had been screened out of the competitions.
[11] In May 1997, the applicants appealed to the Appeal Board under section 21 of the Act.
[12] In a decision dated March 2, 1998, the Chairperson of the Appeal Board
dismissed the applicants' appeals for the following reasons:
| It is clear from the wording on the competition poster that candidates were expected to provide the Selection Board with specific proof that they had successfully met the education [sic] qualifications listed under the screening criteria for both the Tax Auditor and Excise Auditor positions. Candidates were advised that they must (my underline) provide a copy of an accounting designation, university degree and copies of transcripts in order to substantiate their educational qualifications. Further, candidates were advised that the educational screening criteria must be met by the closing date of the competition poster which was December 20, 1996. Although both appellants had taken the requisite accounting examinations, neither were able to provide the Selection Board with a copy of the transcript by the closing date. Although appellant Hassall went to some lengths to satisfy the Selection Board requirement, the letter from his instructor, in my view, does not equate to the official transcript from a university. Further, that letter was not dated nor received prior to the closing date of the competition. |
ISSUE
[13] The question to be determined is whether the Appeal Board erred in dismissing the applicants' appeals.
ANALYSIS
[14] Counsel for the applicants submitted, among other things, that the Appeal Board erred in failing to consider whether the Selection Board violated the merit principle by excluding the applicants, who actually met the educational requirements of the positions, from the competitions. In support of his position, counsel for the applicants relied on Hofland v. Canada (Attorney General) (1995), 92 F.T.R. 213; aff'd (1996), 194 N.R. 51 (F.C.A.). In that case, the competition poster for a position of word processing operator required that a copy of a "valid typing certificate" accompany the application. Although the successful candidate and the applicant submitted typing certificates with their applications, the former's certificate had expired. The Appeal Board dismissed an appeal from the Selection Board on the following basis:
| In my view, a valid typing certificate is not a legitimate requirement. The qualification required by the SOQ was: "Typing skill in English at a speed of at least 40 wpm and not more than 5% error rate." This was the qualification that the Board had to assess. At best, the possession of a certificate meant that the board [sic]did not have to assess whether the candidate who provided it could type. I was satisfied that the Board had assessed Mrs. Breti"s typing skill and had determined that she met the requirement. I also believe that the Board would not have acted reasonably if they had excluded an applicant for this position merely because the candidate could not provide a typing certificate. After all, the assessment of qualifications is a Selection Board responsibility, not the responsibility of an outside agency. |
[15] In dismissing the appeal from the decision of the Appeal Board, Noël J. (as he then was) concluded that the waiver of the requirement for the typing certificate did not constitute a violation of the merit principle, on the basis that the certificate was required solely for the purpose of establishing a screening requirement. In that regard, he stated as
follows, at page 215:
| [13] In this context, I do not believe that the waiver of the requirement for valid typing certificate in the case of the successful candidate can be said to have offended the merit principle. The typing certificates were not required or submitted for purposes of a comparative evaluation. They were submitted to establish the screening requirement in terms of minimum typing speed. The successful candidate was known to possess the typing ability which the certificate was to attest to. |
[16] Noël J. also considered whether a selection board could waive the screening requirement for the typing certificate. In his analysis on that question, Noël J. characterized the requirement of a certificate as a "formality", stating as follows, at page 216:
| The obtention of a typing certificate for those who possess the required skills is but a formality. I do not believe that there are any potential candidates who have been deprived of a job opportunity solely because they did not possess the certificate to evidence their skills. |
[17] The decision of Noël J. was confirmed by the Federal Court of Appeal. In brief oral reasons, Hugessen J.A. (as he then was), speaking on behalf of the Court, stated that Noël J. had reached the "correct conclusion", and that the Court was "in general agreement" with his reasons. Hugessen J.A. also stated that the Court was satisfied with the finding of Noel J. that "...in the circumstances of this case the irregularities in the selection process did not adversely affect the merit principle by discouraging potential candidates."
[18] In the present case, the applicants actually met all of the educational requirements for the positions prior to the closing date of the competitions. However, since the university required a period of approximately eight weeks to prepare a transcript, the applicants were unable to submit transcripts to prove their successful completion of the advanced accounting course. As a result, they were unable, for reasons beyond their control, to comply with the screening criterion in the competition posters that required them to submit copies of transcripts to support their educational qualifications. As indicated previously, the applicants met all of the screening criteria, save and except for the provision of the transcript in relation to one course of study.
[19] In applying the approach adopted by Noël J. in Hofland v. Canada (Attorney General), supra, to the facts of the present case, I am satisfied that the transcript was listed as a requirement in the competition posters in order to assist the Selection Board in assessing whether a candidate met the educational qualifications stipulated in the screening criteria. However, given the applicants' reasonable explanation for their inability to provide a transcript for their last course, the Selection Board should have conducted its assessment of their educational qualifications on the basis of other reliable documentation. The rigid adherence of the Selection Board to formality resulted in the exclusion of two qualified candidates from the competitions.
[20] A review of the Appeal Board's decision reveals that it adopted the same rigid, formalistic approach as the Selection Board, by rejecting the applicants' appeals solely on the basis that they had failed to provide "official transcripts from a university". In dismissing the appeals for that reason, the Appeal Board erred by failing to appreciate the sole purpose for which a transcript was required, namely, to assist the Selection Board in assessing the educational qualifications specified in the screening criteria. In interpreting the requirement of a transcript as a mandatory or absolute condition in the screening process, the Appeal Board further erred by ignoring the fundamental substantive question of whether the applicants were qualified for the positions. As a result, the approach taken by the Appeal Board in its analysis resulted in a violation of the merit principle in that the applicants, who were qualified for the positions, were excluded from the competitions.
[21] I have therefore concluded, on the basis of the facts, that the Appeal Board's decision was patently unreasonable. In reaching my decision, it has been unnecessary for me to consider whether the screening criteria in the statements of qualifications, which made no reference to the requirement for transcripts to establish educational qualifications, prevailed over those specified in the competition posters.
DECISION
[22] The application for judicial review is allowed with costs. The decision of the Chairperson of the Appeal Board is quashed, and the matter is remitted to the Appeal Board with the direction that the applicants' appeals be allowed.
| D. McGillis |
| Judge |
OTTAWA
February 4, 1999