Date: 20030613
Docket: T-2090-01
Citation: 2003 FCT 740
BETWEEN:
MARGARET HAYDON, SHIV CHOPRA, and
GÉRARD LAMBERT
Applicants
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
KELEN J.:
[1] This is an application for judicial review of a decision of Public Service Commission Appeal Board Chairperson Maurice Gohier, dated October 26, 2001, dismissing the appeals of the applicants made pursuant to section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (the "PSEA").
[2] The applicants were unsuccessful candidates in closed competitions for three Division Chief positions with the Bureau of Veterinary Drugs of Health Canada (the "BVD"). They appealed against the selections for appointment made in those competitions alleging that the screening board violated the merit principle in its use of the Management In-Basket Exercise 810 (the "MIB Exercise") as a screening tool.
FACTS
The Competition
In May 2000, Health Canada initiated a closed competition for three positions in its Ottawa office of the BVD: Chief, Pharmaceutical Assessment Division (VM-05); Chief, Human Safety Division (VM-05); and Chief, Policy and Programs Division (BI-05). A screening board was established by the department, consisting of Dr. Marc LeMaguer, Dr. Janet King and Dr. John Dueck. A selection board was also established by the department. Its members were Dr. Brian Evans and Ms. Diane Kirkpatrick, a Visiting Executive at the BVD whose position was equivalent to that of a Director General. A Statement of Qualifications was issued for each position and all three identified the ability to "manage human and financial resources" as a required ability. The competition posters for these positions put candidates on notice that the MIB Exercise would "be administered for screening purposes."
[4] The MIB Exercise is a standardized test that is used by the Public Service Commission ("PSC") to assess a candidate's current level of managerial skills and abilities. The evidence before the Appeal Board was that the same test has been in use since the late 1970s. The exercise simulates aspects of a management position by requiring candidates to perform a series of tasks, such as drafting letters, memos and notes, planning meetings, and delegating work. It is designed to assess five specific managerial competencies: planning, directing, analysing, empowering and organizing. Candidates are awarded up to 5 marks for their performance of each of the these five managerial competencies, with a total of 25 marks available. The exercise can be used as both a screening tool and as means of ranking candidates. If used as a screening tool, the screening board must select a pass mark out of 25 based on the required level of management skill for the position. The PSC's Guidelines for Using the Managerial In-Basket Exercise (810) contain a chart outlining the approximate percentage of candidates who are expected to succeed for each potential pass mark, and an appropriate range of pass marks for different levels of managerial skill.
[5] A total of 14 individuals applied for one or more of the three positions and were required to perform the MIB Exercise in June and July 2000. The candidates were first given two envelopes. Envelope A contained background information and the basic office supplies necessary to complete the exercise. Envelope B contained 34 items normally found in a manager's in-basket (memos, letters, reports, etc.). The candidates were given 2.5 hours to deal with the contents of both envelopes. Following the completion of this stage, the candidates were given 45 minutes to list and explain the actions taken concerning the 34 items in Envelope B on a Reason for Action Form. During the second stage of the exercise, candidates were granted access to the contents of Envelopes A and B.
[6] The candidates were not informed of the required pass mark at the time of writing. Initially, the screening board selected 19/25 as the pass mark, which is at the top end of the range identified as a high level of management skill. At that level, according to the PSC's estimates, only 26% of the candidates who wrote the test would be expected to pass. Before any of the tests were marked, the screening board decided to reduce the pass mark to 14/25, which is at the bottom end of the range identified as a medium level of management skill. With a pass mark of 14/25, it is expected that 60% of the candidates will pass the test. The screening board expected that a pass mark of 14/25 would provide a sufficient number of successful candidates while also ensuring that the successful candidates possessed the required level of management skill.
[7] The candidates' responses were assessed in terms of efficacy, effectiveness and quality by trained scorers with the PSC's Personal Psychology Centre (the "PPC") between July 28 and
September 9, 2000. The scorers were hired, trained, certified and monitored by Dr. Lynne St-Pierre, a full-time psychologist with the PPC. The scorers were unaware of the pass mark selected by the screening board when they marked the tests. Seven of the candidates obtained the passing mark of 14/25 and were screened into the competition. Five of the candidates were later determined to be qualified and their names were placed on the eligibility lists for these positions. All of the applicants failed to obtain the required pass mark and were removed from the competition.
The Appeals
Each of the applicants made a separate appeal against the selections pursuant to section 21 of the PSEA. The appeals were heard together by Appeal Board Chairperson Gohier on July 10 and 11, 2001 because the applicants made six common allegations regarding the conduct of these three competitions. The applicants argued that the use of the MIB Exercise for staffing these positions was without precedent and was designed to provide an unfair advantage to those candidates who had held the positions on an acting basis in the past. They were also concerned with a number of irregularities that occurred during the administration of the MIB Exercise.
[9] At the hearing, as a result of persistent cross-examination by the applicant Chopra, a document that was not previously disclosed by the department was produced. The document was an e-mail sent by Ms. Trish Worgan, a Senior Human Resources Advisor responsible for administrating the test, to Dr. Janet King on July 25, 2000 discussing the possibility of setting the pass mark at 14/25. In the e-mail, Ms. Worgan stated that she had met with Dr. LeMageur who, based on advice received from the PSC, wanted to lower the original pass mark "due to adverse impact on visible minorities who write it." Dr. King replied in an e-mail dated July 26, 2000 that she supported the modified pass mark of 14/25. There is no evidence what position Dr. Dueck took on the proposal. The e-mail reads as follows:
To: Janet King @ HWC
cc: Kerrie Strachan @ HWC, Rita Marinelli @ HWC
Subject: Managerial In-Basket Exam - Staffing
Hi Janet,
When I had met with Dr. LeMaguer last Tuesday, I had mentioned that based on advice from both the Public Service Commission and from Corporate Staffing here in Health-Canada, we would have to lower the pass mark for the above-noted exam, due to adverse impact on visible minorities who write it. The suggested pass mark is 14/25 which means that approximately 60% of the candidates can be expected to score this or higher; the impact is minimal at this level and the test is still effective. As the pass mark increases, so does the chance of adverse impact.
Prior to receiving the results of this exam, could you pls confirm with me by tomorrow in writing that you support this modified pass mark. The DG was in agreement with this amendment. Due to other related matters, I didn't manage to prepare this e-mail prior to his departure.
I will check with the PSC tomorrow to enquire about the anticipated date of receipt of the test results.
Trish
954-2289
[10] Two of the applicants, Dr. Shiv Chopra and Dr. Rajinder Sharma, brought a seventh allegation as a result of the disclosure. They alleged the text of Ms. Worgan's e-mail was deliberately withheld and had a prejudicial effect on their applications for these competitions. They requested an adjournment so that they could obtain evidence about this document. The Chairperson denied the request for an adjournment and did not permit the applicants to call witnesses from the department to explain what they meant in the e-mail.
The Appeal Board Decision
The Chairperson concluded that the selection process was conducted in accordance with the merit principle and dismissed the applicants' appeals in a decision dated October 26, 2001. The six allegations initially made by the applicants were rejected by the Appeal Board. For the purposes of this application, there is no need to outline the Chairperson's response to each allegation. In light of the arguments made by the applicants before this Court, it is easier to summarize the Chairperson's decision with the following five points:
(i) the inclusion of managerial ability in the Statement of Qualification was justified as these positions required the performance of managerial duties;
(ii) it was within the discretion of screening board to use the MIB Exercise as a screening tool to test the candidate's managerial abilities;
(iii) the decision to set the pass mark at 14/25 was reasonable as it allowed a sufficient number of candidates to succeed while maintaining a medium level of management skill;
(iv) there was no undue advantage to candidates who had held acting Chief positions as a candidate without that experience passed the test and another with that experience failed; and
(v) the screening board conducted the MIB Exercise in a manner that respected the merit
principle despite the presence of some irregularities.
[12] The Chairperson held that the e-mail had been deliberately and improperly withheld from disclosure. He stated at paragraph 14 of the decision:
The e-mail in question contained the rationale for setting the pass mark of the MIB Exercise. This was information that pertained to the appellants or the successful candidates and that was likely to be presented before the appeal board. That the department was aware of this is self-evident, in my view, since they disclosed the e-mails that came immediately before and after the one that they decided not to disclose. As such, it is my finding that the appellants should have been provided with a copy of Ms. Worgan's e-mail during the disclosure period. This portion of the appellants' allegation is founded (sic), despite the fact that the appellants referred to the wrong subsection of the Public Service Employment Regulations. The department is reminded to be more diligent in fulfilling its responsibilities concerning the disclosure of documents and information in future cases.
[13] As mentioned above, an additional allegation was made by two of the applicants after Ms. Worgan's e-mail was disclosed. The Chairperson stated that while the department had breached its obligation under section 26 of the Public Service Employment Regulations, 2000, SOR/2000-80, (the"Regulations") to disclose the e-mail during the disclosure period, there was no evidence that the pass mark was lowered to ensure fewer persons of visible minorities qualified. The lowering of the pass mark actually had an inclusive effect by broadening the pool of candidates available. He noted that if the pass mark of 19/25 had been maintained only one of the 14 candidates would have successfully completed the exercise. The Chairperson reiterated his position that it was not necessary to call witnesses from the department as the text of the e-mail was self-explanatory and stated there was no public interest served by belabouring the point.
RELEVANT LEGISLATION
[14] The fundamental principle underlying appointments to or from within the federal public service is the merit principle, which is contained in subsection 10(1) of the PSEA:
Appointments to be based on merit
10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.
Nominations au mérite
10. (1) Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission, et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique.
[15] Subsection 21(1) provides a mechanism that allows unsuccessful candidates to appeal against an appointment. The relevant portions of section 21 are reproduced here:
Appeals
21. (1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.
Appels
21. (1) Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
[16] Also relevant in the case at bar is section 26 of the Regulations, which states:
Access
26. (1) An appellant shall be provided access, on request, to any information, or any document that contains information, that pertains to the appellant or to the successful candidate and that may be presented before the appeal board.
Copies
(2) The deputy head concerned shall provide the appellant, on request, with a copy of any document referred to in subsection (1).
Accès
26. (1) L'appelant a accès sur demande à l'information, notamment tout document, le concernant ou concernant le candidat reçu et qui est susceptible d'être communiquée au comité d'appel.
Copies
(2) L'administrateur général en cause fournit sur demande à l'appelant une copie de tout document visé au paragraphe (1).
ISSUES
[17] The following issues have been raised in this application.
Were the applicants' rights to procedural fairness violated by the Appeal Board Chairperson's decision to:
(1) deny their request for an adjournment to allow the questioning of the department's staff about Ms. Worgan's e-mail; and to
(2) limit the scope of cross-examination of departmental witnesses?
ANALYSIS
1. Procedural Fairness
(a) Request for an Adjournment
The applicants submit the Appeal Board Chairperson failed to properly exercise his discretion to grant an adjournment in a manner that fully took into account their right to fairly present their case.
[19] Generally speaking, the discretion to adjourn proceedings is vested in a tribunal and the Court will not interfere with the decision not to grant an adjournment unless there has been a denial of natural justice: Canada (Director of Investigation & Research) v. Nutrasweet Co. (1989), 27 C.P.R. (3d) 449 (F.C.A.); Vairamuthu v. Canada (Minister of Employment and Immigration) (1993), 161 N.R. 131 (F.C.A.). This principle has been applied to PSC Appeal Boards: Jeyakumar v. Canada (A.G.) (1999), 178 F.T.R. 139; and Savoie v. Canada (A.G), 180 F.T.R. 135. There is no denial of natural justice if the tribunal gave each party a reasonable opportunity to state their case and did not deny any proper request for an adjournment to present evidence: Grant v. Canada, 2003 FCA 77.
[20] The department's failure to comply with a provision of the statute or regulations should only invalidate an appointment if there was a "real possibility" that compliance with the provision might have brought about a different result: Bambrough v. Canada (A.G.), [1976] 2 F.C. 109 at p. 115 (C.A.).
[21] There is no dispute that Health Canada breached the rules of natural justice and procedural fairness by failing to disclose a relevant document prior to the hearing, as specifically required by section 26 of the Regulations. The question is whether this breached the applicants' right to a fair hearing which depends upon whether the breach may have had any impact upon the assessment of the relative merits of the candidates. The e-mail, which was only disclosed as a result of persistent cross-examination by the applicant Chopra, raised a number of relevant questions, formed the basis of a new relevant "allegation" which became the seventh allegation for consideration by the Appeal Board, and prompted the Chairperson of the Appeal Board to suggest that the author of the e-mail be called as a witness. The e-mail basically said that the passing grade of the MIB test had to be lowered so that visible minorities not be excluded.
[22] In the transcript at page 225, this document is described by the Chairperson as "It could explain a lot of things". I am satisfied that this was a relevant and important document with respect to the rationale for setting the pass mark. The Chairperson refused to allow questions with respect to this document. I am satisfied the appellants had the right to question this document.
[23] It is obvious that when an important relevant document is illegally withheld, and it is only uncovered under cross-examination at the hearing, that the party should be granted an adjournment if requested so that the party can properly question the document and subpoena any additional necessary witnesses. This document formed the basis of a new allegation for consideration of the hearing. The Chairperson recognized that the new allegation was legitimate but denied the request for an adjournment by finding as a fact that the document did not have any prejudicial impact on the appellants without allowing the appellants the right to cross-examine the document. However, the Chairperson was prepared to call the author of the document as a witness, but she was not in the hearing room and was not available on short notice. At this point in the hearing , the Chairperson refused an adjournment to allow the appellants time to "gather information" in response to the e-mail, or to call the author of the e-mail.
[24] The Chairperson's conclusion, without allowing cross-examination or any evidence, was that the e-mail did not prejudice the applicants. The Chairperson may be correct. But it is not possible to know this without allowing the applicants to test by cross-examination relevant witnesses with respect to this document. There is a "real possibility" the document disclosed evidence with respect to the selection of the candidates according to merit or disclosed reasoning to reduce the pass score from 19 to 14, when the pass mark should have been reduced lower, or disclosed evidence that it was inappropriate to use the MIB exercise for these positions.
[25] The Court appreciates that the Chairperson had conducted the hearing for a day and a half and wanted to bring the hearing to a close. However, an adjournment would not cause any prejudice. When an important relevant document is illegally withheld, and there is a real possibility that that document impacted the appellants, the appellants have the right to an adjournment and the right to test that document through witnesses and cross-examination. That is a basic part of a fair hearing, to which the appellants were entitled. See Savoie, supra., and Sorobey v. Canada, [1987] 1 F.C. 219 at 221 per Hugessen J.A. (as he then was).
[26] It is an elementary principle of natural justice in the conduct of a fair hearing that if a party is found to have hidden or failed to disclose an important relevant document, the adverse party has the right to adjourn the hearing to adequately respond to that document either with witnesses, other documents, or cross-examination. The purpose of the rules for disclosure of documents prior to the hearing is to avoid a trial by ambush and surprise.
[27] One of the purposes of judicial review is to ensure that administrative tribunals conduct their hearings fairly. In the rush to complete a hearing, the hearing officer must ensure that he or she does not rush to conclusions, and that parties have the full right to test and cross-examine relevant evidence which may impact them. This has clearly not been done in this case, and warrants the Court's intervention.
[28] For these reasons, this application for judicial review is allowed and the matter is referred back to another panel of the Public Service Commission Appeal Board for a new hearing. The applicants are entitled to their legal costs.
"Michael A. Kelen" _______________________________
J.F.C.C.
OTTAWA, ONTARIO
JUNE 13, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2090-01
STYLE OF CAUSE: MARGARET HAYDON ET AL v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: OTTAWA
DATE OF HEARING: MAY 27,2003
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE KELEN
DATED: JUNE 13, 2003
APPEARANCES:
Mr. David Yazbeck FOR THE APPLICANT
Ms. Anne Turley FOR THE RESPONDENT
SOLICITORS OF RECORD:
Raven, Allen, Cameron & Ballantyne FOR THE APPLICANT
Ottawa, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date: 20030613
Docket: T-2090-01
BETWEEN:
MARGARET HAYDON, SHIV CHOPRA, and
GÉRARD LAMBERT
Applicants
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER