Date: 19991112
Docket: T-751-96
BETWEEN:
MIKE BROTHERS , PAULINE BROWN, ROBERT CAINES,
BARBARA CARTER, B. WAYNE HILLYARD, DAVID PARSONS
| AND SELWYN D. WARREN |
Applicants
-and-
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket: T-757-96
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
-and-
BRIAN MACPHEE
Respondent
Docket: T-758-96
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
-and-
HEATHER ANTLE, MIKE BROTHERS, PAULINE BROWN, C. DOUG BURSEY, ROBERT CAINES, BARBARA CARTER, KEITH CONWAY, KELLY DAVIS, STELLA C. DYKE, WILLIAM B. EARLE, GERALD R. ENNIS, DAVID J. HANDRIGAN, DON HEALY, B. WAYNE HILYARD, G.F. KEATING-BROWN, PATRICIA MADDIGAN, AIDAN J. MALONEY, DAVID R. MURPHY, DAVID PARSON, M. ROY PECKFORD AND SELWYN D. WARREN
Respondents
REASONS FOR ORDER AND ORDER
BLAIS J.
[Erreur ! Argument de commutateur inconnu.] There are four applications for judicial review before the Court, of the decision of Robert Vaison in his capacity of Appeal Board Chairman, wherein he upheld the appeal of the candidates against the proposed appointments to the position of Team Coordinator (various positions), PM-04, Revenue Canada Taxation.
[Erreur ! Argument de commutateur inconnu.] The first application is brought by Mike Brothers, Pauline Brown, Robert Caines, Barbara Carter, B. Wayne Hilyard and Selwyn D. Warren.
[Erreur ! Argument de commutateur inconnu.] The other three applications are brought by the Attorney General of Canada. The first application involves Brian MacPhee. The second application involves Heather Antle, Mike Brothers, Pauline Brown, C. Doug Bursey, Robert Caines, Barbara Carter, Keith Conway, Kelly Davis, Stella C. Dyke, William B. Earle, Gerald R. Ennis, David J. Handrigan, Don Healy, B. Wayne Hilyard, G.F. Keating-Brown, Patricia Maddigan, Aidan J. Maloney, David R. Murphy, David Parson, M. Roy Peckford and Selwyn D. Warren. The third application which involves Aubrey Pope, will be the subject of a separate judgement since the respondent represented himself.
FACTS
[Erreur ! Argument de commutateur inconnu.] The above named persons filed appeals pursuant to section 21 of the Public Service Employment Act (PSEA) against a number of proposed appointments by Revenue Canada Taxation.
[Erreur ! Argument de commutateur inconnu.] Candidates were assessed using a variety of selection tools. Knowledge was evaluated via a written exam. Abilities were addressed through the use of the Team Coordinator Simulation (427) test. The personal suitability factor was assessed based on the candidates" responses to several behaviour-based questions.
[Erreur ! Argument de commutateur inconnu.] Sixty (60) persons responded to the competition. Eleven (11) were screened out, having been found not to meet the experience factor, among them was Mr. Handrigan. Four (4) candidates withdrew. Ten (10) persons failed the knowledge (among them the appellants Dyke, Earle, Murphy, Peckford and Warren). Twenty three (23) out of the thirty five (35) persons failed the Team Coordinator Simulation (427) test (among them : Antle, Brothers, Brown, Bursey, Caines, Carter, Davis, Ennis, Hillyard, Keating-Brown, Maddigan, Maloney and Parsons). The remaining twelve (12) candidates all passed this component. The highest ranking nine (9) persons were placed on a list.
APPEAL BOARD DECISION
[Erreur ! Argument de commutateur inconnu.] Numerous allegations were presented before the Appeal Board. The Appeal Board retained concerns with respect only to two issues :
| 1. The screening out of one of the appellants namely, Mr. Handrigan : the Appeal Board found it disturbing that the same individual was found, less than six month before, to meet the same qualifications for the same position. |
| 2. The reliability and consistency of the scoring assigned and relative rankings reached through the use of the Team Coordinator Simulation (427) test - the only tool used by the Selection Board in its assessment of the candidates against all the abilities qualifications established. The reservation centered upon an inability to conclude that candidates in the competition could be seen as having been fairly and consistently evaluated and ranked on this crucial facet of assessments through the vehicle selected and the way it was applied. |
[Erreur ! Argument de commutateur inconnu.] The Chairperson explained :
| It is difficult to find that all candidates can be seen as having been fairly and consistently assessed given that there were six (6) different persons, comprising a total of some eight (8) different three-person team carrying out the application of the simulation under scrutiny. |
| The merit principle requires the candidates aspiring to a position through a competition be comparatively assessed to ensure that they are proposed for appointment in order of merit. |
APPLICANTS" POSITION (candidates, T-751-96)
[Erreur ! Argument de commutateur inconnu.] The applicants raise the preliminary issue that should the Court grant the judicial review for this file, i.e. T-751-96, then the matter ought to be referred back to Mr. Vaison and the other applications for judicial review be dismissed.
[Erreur ! Argument de commutateur inconnu.] The applicants maintain that the Team-Co-ordinator positions were not new positions but were, in fact reclassified versions of the old position. The Department acted contrary to the Public Service Employment Act (PSEA). It should have staffed these positions on the basis of absolute merit pursuant to subsection 10(2) of the PSEA.
[Erreur ! Argument de commutateur inconnu.] They further submit that the expression "may" in subsection 10(2) of the PSEA , should be interpreted as an imperative expression. The applicants were entitled to be appointed provided they met the qualifications for the reclassified positions.
[Erreur ! Argument de commutateur inconnu.] They argue that it is significant that the Appeal Board"s conclusion on this issue is completely inconsistent with the conclusion of the Appeal Board Chairperson in the Laidlaw cases, Canada (Attorney General) v. Laidlaw et al. (1997), 127 F.T.R. 305; (1998), 237 N.R. 1, where the alleged creation in the same organization of the new PM-04 positions were found to be not new.
[Erreur ! Argument de commutateur inconnu.] They submit, based on Laidlaw, that it is incumbent upon an Appeal Board to make a finding of fact whether or not the positions were new within the meaning of the initiative defined by Revenue Canada. Furthermore, the Federal Court of Appeal came very close to say that "may" is mandatory.
RESPONDENT"S POSITION
[Erreur ! Argument de commutateur inconnu.] The respondent claims that the power to select for appointment pursuant to subsection10(2) of the Act and subsection 4(2) of the Regulations is discretionary. The respondent explains that the expression "may" is permissive and that it is inconceivable that the Parliament intended the whole series of permissive provisions to be construed as a single imperative prescription. Furthermore, it is clearly impossible to use subsections 10(2) and 4(2) since there were not enough positions for all seven applicants.
[Erreur ! Argument de commutateur inconnu.] In the alternative, an Appeal Board does not have jurisdiction to conduct an inquiry into classification decisions to create and classify new positions.
[Erreur ! Argument de commutateur inconnu.] The respondent submits that the proper test for determining whether to appoint, is the general test applied by the Courts to review discretionary statutory powers namely, whether the power has been exercised in good faith and without reliance upon considerations irrelevant to the statutory purposes.
ANALYSIS
[Erreur ! Argument de commutateur inconnu.] The Court must now determine whether the Appeal Board erred in law in concluding that the positions in question were new.
[Erreur ! Argument de commutateur inconnu.] The Supreme Court held in Canada v. Brault, [1987] 2 S.C.R. 489:
| Obviously the administration must have reasonable flexibility to make minor changes in the functions of an existing position in the Public Service which the occupant of the position may be called on to perform, without thereby creating a new position for which an appointment based on selection according to merit must be made. Where, however... the change in functions is of such a significant or substantial nature as to call for additional or special qualifications requiring evaluation and therefore what amounts to a new selection for the position, a new position within the meaning of the Act is created. |
[Erreur ! Argument de commutateur inconnu.] Again in Doré v. Canada, [1987] 2 S.C.R. 503, the Supreme Court concluded :
| The application of the merit principle and the right of appeal under s. 21 of the Public Service Employment Act cannot depend on whether the Department chooses to regard what is done as the creation of a position and an appointment to it within the meaning of the Act. It is what the Department has objectively done as a matter of fact and not what it may have intended or understood it was doing as a matter of law that must determine the application of the merit principle and the right of appeal. |
[Erreur ! Argument de commutateur inconnu.] In Laidlaw, both levels of the Federal Court agreed that the Appeal Board had the right to determine whether the position was new or not. This Court can only intervene if the findings of facts were made in a perverse or capricious manner without regard to the evidence before it. There is no evidence that the Appeal Board ignored the evidence, on the contrary, it weighed the evidence adduced and determined that the positions were new. There is no evidence that the findings were made in a perverse or capricious manner.
[Erreur ! Argument de commutateur inconnu.] I don"t find the Laidlaw case to be determinative of the issue, since it turns on its own set of facts, that are different from the present case; for instance the number of position available prior to the reorganization was the same as after, which is not the case here. Furthermore, the Court of Appeal did not determine whether, "may" is mandatary or permissive.
[Erreur ! Argument de commutateur inconnu.] Since the Appeal Board concluded based on the evidence that the position is new and not a reclassification, it is not necessary to determine whether subsection 10(2) should apply.
[Erreur ! Argument de commutateur inconnu.] The application for judicial review in file T-751-96 is dismissed.
[Erreur ! Argument de commutateur inconnu.] The Court must now consider the applications for judicial brought forward by the Attorney General of Canada.
APPLICANT"S ARGUMENTS (Candidates, T-757-96 and T-758-96)
[Erreur ! Argument de commutateur inconnu.] It is the Attorney General of Canada"s position that the Appeal Board erred in the David J. Handrigan"s appeal, by defining the burden of proof improperly and setting it too high by requiring the Department to remove any doubt.
[Erreur ! Argument de commutateur inconnu.] The applicant contends that the proper test is wether the Selection Board decision on the evidence was so unreasonable as to warrant the intervention of the Appeal Board. It is entirely inappropriate for the Appeal Board to second guess the Selection Board with phrases such as "engendering reservations: unable to assure itself" and "retaining doubts".
[Erreur ! Argument de commutateur inconnu.] He claims that the fact the respondent was found qualified to meet the particular experience requirements set out for the same position in an acting capacity in the past is particularly entirely irrelevant.
[Erreur ! Argument de commutateur inconnu.] He submits that the sole task of the Appeal Board was to determine whether on the evidence the Selection Board was unreasonable in concluding that the respondent failed to satisfy the depth, breath and criteria for the experience requirements without second guessing it or by comparing it to an undefined past depth, breath and criteria and other extraneous considerations.
[Erreur ! Argument de commutateur inconnu.] He further argues that the Appeal Board"s reasoning leads to the untenable situation where the Selection Board would be required or be free to assess a candidate in light of a different experience requirements than that used to assess all the other candidates.
[Erreur ! Argument de commutateur inconnu.] He concludes that the Appeal Board failed to justify its intervention against the validity of the Selection Board"s assessment and conclusions. This is particularly so since the respondent failed to adduce material and probative evidence with respect to the specific requirements in issue.
[Erreur ! Argument de commutateur inconnu.] Turning to allegation #9, that members of the Board did not possess the capability to validly assess the abilities of candidates; it is submitted that the Appeal Board"s conclusion stating that "the general thrust of this application taken in conjunction with some of the succeeding ones, is sufficient to leave me unable to conclude that the merit principle can be seen as having been respected when all is said and done." is vague and meaningless as it does not disclose a ground known to law to justify the intervention of the Appeal Board.
[Erreur ! Argument de commutateur inconnu.] The Attorney General suggests that the respondents failed to substantiate their allegations. The Appeal Board did not make any specific findings of fact with respect to any part of the allegation.
[Erreur ! Argument de commutateur inconnu.] As to allegation #10, that the department erred in delegating its authority to persons who were not members of the Selection Board; the Attorney General claims that the consideration on which the Appeal Board appears to have placed a great deal of importance are inconsistent and contradictory to the specific findings of facts and conclusions in response to the first allegation of a sub-group of respondents.
[Erreur ! Argument de commutateur inconnu.] He notes that notwithstanding the expert testimony, the absence of expert testimony to the contrary, the Appeal Board"s own admitted lack of knowledge in the field of testing, the Appeal Board proceeded to conclude that the use of the test is not defensible and reliable such as to create confidence in the adherence to the merit principle.
[Erreur ! Argument de commutateur inconnu.] He further contends that the Appeal Board"s "serious concern" with the maintenance of consistency in the consideration of candidates is devoid of evidence and could not be relied upon to justify the conclusion which it reached.
[Erreur ! Argument de commutateur inconnu.] As to allegation #12 that the Selection Board failed to justify the ratings given to each candidate on the simulation test, and that the Board failed to explain the relative ranking of the candidates in the competition as it pertains to the scores assigned on the test; the applicant submits that the Appeal Board"s conclusion is devoid of any finding of fact on the evidence and conclusions of law applied to these findings. These conclusions are based on speculative doubt and internal contradictions and inconsistencies. For example, the Appeal Board accepted without reservation all the individual scores and ranking per se, but rejected compelling proof or specific findings of fact regarding the overall procedure and the consistency of treatment.
[Erreur ! Argument de commutateur inconnu.] The applicant submits that the doubts of the Appeal Board are devoid of substance particularly since the respondents did not at any time allege nor show on the evidence that the successful candidates are not qualified for the positions on the qualifications assessed by the test.
[Erreur ! Argument de commutateur inconnu.] As to allegation #14, that the Selection Board members are unable to justify the marks given to each candidate, and neither are they able to explain the ranking of the candidates, as a result of undergoing the simulation test; the applicant submits that the Appeal Board of its own admission does not possess the requisite professional qualifications to second-guess the evidence of the expert or the pertinent literature. Once again, the Appeal Board did not identify the evidence which it considers to be crucial to its reasoning.
[Erreur ! Argument de commutateur inconnu.] As to MacPhee"s allegation that the scoring of his answers to the questions on the simulation exercise was inconsistent with the Department"s suggested answers and as well with the scoring assigned to the successful candidates; it is submitted that the Appeal Board did not make a specific, substantiated and reasoned findings of facts based on the evidence that the scoring of the respondents" answers was inconsistent with the department"s suggested answers as well as with the scoring assigned to the successful candidate.
RESPONDENTS" POSITION (candidates, T-757-96; T-758-96)
[Erreur ! Argument de commutateur inconnu.] The respondents submit that an Appeal Board must intervene when it finds "that a competition was held in circumstances such that there could be some doubt as to its fitness to determine the merit of candidates". In this regard, the Selection Board has the onus of establishing that the assessment of the candidates was conducted in accordance with the merit principle.
[Erreur ! Argument de commutateur inconnu.] The Federal Court may set aside a decision of a tribunal which is based upon an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.
[Erreur ! Argument de commutateur inconnu.] The applicant"s attempt to dissect the Appeal Board"s assessment of the evidence is particularly inappropriate given the extensive nature of this evidence and the inter-relatedness of the various allegations advanced on behalf of the respondents.
[Erreur ! Argument de commutateur inconnu.] Regarding Mr. Handrigan"s appeal, the Appeal Board did not improperly define the burden of proof. The comments of the Appeal Board echo a long line of jurisprudence which confirms that an Appeal Board must allow an appeal where there is doubt in its mind as to whether the merit principle was properly applied.
[Erreur ! Argument de commutateur inconnu.] The applicant failed to present evidence that it had properly applied the merit principle to Mr. Handrigan. The Appeal Board summarized all of the evidence respecting the allegations advanced on behalf of the respondent Handrigan and rejected the department"s position in reply.
[Erreur ! Argument de commutateur inconnu.] As to allegation # 9, 10, 12 and 14, the applicant"s submissions are devoid of substance and fail to establish that the Appeal Board did not properly assess the evidence. The Appeal Board concluded that while aspects of the test itself may not be flawed, the application of the test by departmental representatives resulted in a violation of the merit principle.
[Erreur ! Argument de commutateur inconnu.] The Appeal Board Chairperson was confirming the oft-cited dictum that he ought not interfere with the opinion of the Selection Board with respect to each individual candidate but that the process used to reach that opinion was so flawed that it required intervention.
[Erreur ! Argument de commutateur inconnu.] As to MacPhee"s allegation, the applicant failed to demonstrate that the Appeal Board"s assessment of the evidence leads to a decision based upon an erroneous finding of fact made in a perverse or capricious manner. The Appeal Board reviewed the extensive evidence and specifically concluded that there was such an inconsistency of evaluation in scoring that the merit principle could not have been followed, particularly where the process utilized by the Department allowed considerable scope for subjective evaluation which did not properly ensure assessment on the basis of relative merit.
ANALYSIS
[Erreur ! Argument de commutateur inconnu.] In Ratelle v. Canada (Public Service Commission, Appeals Branch), [1975] F.C.J. No. 910, the Federal Court of Appeal held :
| One must remember that there is quite a difference between the role of a Selection Board and that of a board to which an appeal has been made under s. 21. The Selection Board is merely the Public Service Commission's means of fulfilling the task with which it has been entrusted by the legislator. The role of the Selection Board is to decide on the merit of candidates for a given position by using whatever means it deems appropriate, subject to the provisions of the Act and its regulations. The role of the Appeal Board is quite different. Generally speaking, it is not required to replace the Selection Board's appraisal of the candidates with its own. Assessment of the merit of different people is often a matter of opinion and we have no reason to prefer the opinion of the Appeal Board to that of the Selection Board in this matter. The function of the Appeal Board is to hold an inquiry in order to determine whether the Selection Board made its choice in such a way that it was a "selection according to merit". If the Appeal Board concludes that the Selection Board met this requirement, it must dismiss the appeal even if it is of the opinion that, had it been responsible for the task entrusted to the Selection Board, the result might have been different. 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 an Appeal Board would be exceeding its authority if it allowed the appeal from the decision of the Selection Board on the grounds that the latter had not availed itself of the means considered by the Appeal Board to be most appropriate for the performance of its duty. |
[Erreur ! Argument de commutateur inconnu.] The Federal Court will intervene if a decision is based on erroneous findings of fact that were made in a perverse or capricious manner or without regard for the material adduced.
[Erreur ! Argument de commutateur inconnu.] Did the Appeal Board exceed its jurisdiction ?
HANDRIGAN"S APPEAL
[Erreur ! Argument de commutateur inconnu.] In Fields v. Canada (Attorney General) (1995), 93 F.T.R. 158, Justice McGillis held that the onus was on the Selection Board to satisfy the Appeal Board that the assessment was done in accordance with the merit principle.
[Erreur ! Argument de commutateur inconnu.] In Canada (Attorney General) v. Bates, [1997] 3 F.C. 132 , the Federal Court held:
| The merit principle must be cognizant of, and where necessary responsive to, the critical reality of the history of the case and the life situation of the individuals involved.[...] |
| I also think that it is proper for an Appeal Board to have full regard for the history of the case under consideration in order to judge whether an error has occurred, and if so, what to do about it. |
[Erreur ! Argument de commutateur inconnu.] The standard of review of the Selection Board"s decisions in this regard is patent unreasonableness as set in Blagdon v. Public Service Commission, [1976] 1 F.C. 615, (F.C.A.).
[Erreur ! Argument de commutateur inconnu.] The appellant was not able to discharge his onus by proving that the merit principle was met for Mr. Handrigan. The Appeal Board noted that Mr. Handrigan qualified for the same position previously with an even more onerous experience requirement, yet this time around he was screened out. The Appeal Board found it patently unreasonable to screen out Mr. Handrigan and therefore the Appeal Board intervened. There is no evidence that this finding is made in a perverse or capricious manner and this Court will not intervene.
THE GROUP"S ALLEGATION #9, 10, 12, 14 AND MACPHEE"S ALLEGATION
[Erreur ! Argument de commutateur inconnu.] The Appeal Board concluded that the merit principle was not respected, since the selection process was carried out by eight different teams, with no consultation among them; some members were not even part of the Selection Committee.
[Erreur ! Argument de commutateur inconnu.] The Appeal Board states that it does not challenge the ranking per se but the overall procedure, yet it concludes that the candidate could not have been fairly and consistently assessed. However there was no evidence tendered to lead to this conclusion.
[Erreur ! Argument de commutateur inconnu.] The evidence shows that before the Selection Board set up the simulation process, the assessors spent two days developing the check lists that would be used. Throughout the two weeks of assessment, several discussions took place concerning the assessment of candidates and the relative weight of the issues and how they should be addressed by the team. Members of the assessment teams observed each other marking candidates and reviewed particular assessment to help understand how candidates were assessed.
[Erreur ! Argument de commutateur inconnu.] The fact that there is a certain element of subjectivity does not in my opinion lead to great inconsistencies. Even if the same members assessed each candidate, the element of subjectivity remains. From the evidence tendered, it seems that the subjectivity element was minimal.
[Erreur ! Argument de commutateur inconnu.] The evidence show that the candidates were assessed in the following manner. The candidates"s notes were read aloud to ensure that all team members agreed about the issues addressed by the candidate. Then on an element-by-element basis, the team reviewed the definition of element being evaluated along with the questions found in the assessor"s manual that related to the element and then referred individually to the dimension rating scale that applied to that particular element. Individually, each assessor rated the element. At this point, assessors were asked to reveal the scoring and a discussion followed in order to arrive to a consensus score and rating board. This process was repeated for each element.
[Erreur ! Argument de commutateur inconnu.] The findings were made in a capricious and perverse manner, without regard to the evidence before the Appeal Board.
[Erreur ! Argument de commutateur inconnu.] For these reasons, the application for judicial review will be granted in files no T-757-96 and T-758-96, with the exception of the Handrigan"s issue.
CONCLUSION
[Erreur ! Argument de commutateur inconnu.] The judicial review in file T-751-96, Brothers et al v. A.G.C., is dismissed.
[Erreur ! Argument de commutateur inconnu.] The judicial review in file T-757-96, A.G.C. v. Brian MacPhee, is granted.
[Erreur ! Argument de commutateur inconnu.] The judicial review in file T-758-96, A.G.C. v. Heather Antle et al., is granted, except for the Handrigan issue, which is dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
November 12, 1999