Date: 20001205
Docket: T-1052-99
BETWEEN:
REWATI RAMAN UPADHYAYA
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
NADON J.
[1] The applicant seeks an order setting aside the May 14, 1999 decision of Frederick L. Ringham, Chairperson of the Public Service Commission Appeal Board (the "Appeal Board"), whereby he denied the applicant's appeal, made pursuant to s. 21 of the Public Service Employment Act (the "Act").
[2] The applicant's appeal was in respect of the appointment of Brian Kenefick to the position of Manager, Inspection Services, with the Marine Safety Branch of Transport Canada. Mr. Ringham, in denying the appeal, concluded that the selection board's interpretation of the words "experience as a marine surveyor" was reasonable and that, consequently, he could not find any ground justifying interference.
[3] In the view of the selection board, the experience of the successful candidate, Mr. Kenefick, was such as to qualify him as a person who had the required experience as a marine surveyor. The applicant disagreed with this view and, thus, launched his appeal before the Appeal Board. Before the Appeal Board, he argued that Mr. Kenefick did not meet the standards for selection and that the standards established for certification and experience were inconsistent with the Financial Administration Act. Thus, in the applicant's view, the selection board had erred in its assessment of Mr. Kenefick's qualifications. In his Memorandum, at paragraphs 4 and 5 thereof, the applicant summarizes his understanding of the arguments made by both sides before the Appeal Board:
| 4. Before the Appeal Board, the Department argued that the successful candidate had the required experience by having accident investigation experience. That the selection board defined "Marine Surveyor" to include the surveying of vessels not only for inspection but also for regulatory compliance, repairs, reconfiguration, insurance and accident causation- an action, which, in its view was a reasonable interpretation, consistent with the duties of the position. No job description of his previous position was entered in to [sic] evidence to support these statements and the appeal Board Chairperson as a result accepted the Department's interpretation without any evidence to support it. As well, eventhough [sic] the curriculum vitae of the successful candidate established that he had accident investigation experience they never showed how the duties of the position would have been solely satisfied by the candidates having this experience and not the official qualification that the other candidates did and the successful candidate was the only one who did not. The written decision of the Appeal Board Chairperson does not completely reflect the entire argument presented at the hearing by the Appellant's Representative, as it was clearly stated that the successful candidate was the only candidate without the required experience and an exception to include his previous experience was made by the selection board. |
| 5. The Applicant stated that successful candidate did not have the required experience as a Marine Surveyor, that he had never been officially appointed as the other candidates had and the job description for the position required. The Appeal Board ignored this and dismissed the Applicant's Appeal. The Applicant feels that the Appeal Board erred by accepting the Department's interpretation broadening the qualifications for the position. By doing so the Appeal Board affirmed the broadening of the qualifications which is an error in law. The Appeal Board's decision does not clearly state whether or not based on evidence presented that the successful candidate met the qualifications for the position; the Appeal Board is silent on this. |
| Further, that the Selection Board made an exception for the successful candidate, all other candidates were requi4red to have and did have the experience as a "Marine Surveyor" per se. This by fact broadened the qualifications for the position from what had been established from the job description originally. The Applicant believes this was patently unreasonable and the appeal Board error [sic] again by accepting this interpretation. The Appeal Board in its decision even acknowledges the interpretation to be an interpretation of the original qualifications. That the Appeal Board erred in stating there was no need to consider the extent to which the qualifications flowed from the job description this is wrong as this is the job of the appeal Board to ensure that the Selection Board actions were consistent with the Merit Principle. How can the Appeal Board state that actions inconsistant [sic] with the duties of the Selection Board up hold [sic] the Merit Principle. |
[4] As I have already indicated, Mr. Ringham did not accept the applicant's submissions and therefore dismissed his appeal. A brief review of the facts will be helpful in understanding the issue for determination herein.
[5] The Marine Safety Branch of Transport Canada held a closed competition in the fall of 1998 in order to fill the position of Manager, Inspection Services (TI-08), located in Vancouver. The closing date for application was September 25, 1998.
[6] The required qualifications for the position were set out in the competition poster. They were as follows:
| Successful completion of secondary school or PSC approved alternatives (an acceptable combination of education, training and/or experience; or a satisfactory score on the PSC test approved as an alternative to a Secondary School diploma). Possession of a First Class Marine Engineers Certificate valid for use on Canadian vessels. Minimum 5 years recent experience as a Marine Surveyor. Experience in management. |
[7] The Statement of Qualifications of the position describes the experience required by applicants for the position to be as follows:
| EXPERIENCE: Minimum 5 years recent experience as a Marine Surveyor. Experience in management. |
[8] A selection board report, dated November 20, 1998, shows that three candidates were found to be qualified for the position. The report ranks the candidates, in order of merit, as follows:
| 1. Brian Kenefick |
| 2. Geoff Seddon |
| 3. R. Raman Upadhyaya (the applicant in this case). |
[9] Mr. Kenefick, as the top-ranked candidate, was placed on the eligibility list and appointed to the position of Manager, Inspection Services.
[10] The applicant appealed against the selection of Mr. Kenefick, pursuant to s. 21 of the Act. As I indicated earlier, the applicant argued before the Appeal Board that Mr. Kenefick had failed to meet the standards for selection and that the selection board had erred in assessing Mr. Kenefick's qualifications.
[11] The issue for determination is whether the selection board reasonably interpreted the Statement of Qualifications and whether the Appeal Board reasonably applied the Statement of Qualifications when it found that Mr. Kenefick had the requisite experience for the position. More particularly, the issue is whether Mr. Kenefick had the required experience of "minimum 5 years recent experience as a Marine Surveyor".
[12] Sub-section 21.(1) of the Act provides as follows:
| 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. |
21.(1) Dans le cas d'une nomination, effective ou imminente, consécutive à 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. |
[13] In Monique Charest v. Attorney General of Canada et al, [1973] F.C. 1217, the Federal Court of Appeal made it clear that the right of appeal under s. 21 of the Act exists to prevent an appointment being made contrary to the merit principle. At. page 1221 of his Reasons, Mr. Justice Pratte, for the Court of Appeal, stated the following:
| [...] However, it is important to remember that the purpose of section 21 conferring a right of appeal on candidates who were unsuccessful in a competition is also to ensure that the principle of selection by merit is observed. When an unsuccessful candidate exercises this right, he is not challenging the decision which has found him unqualified, he is, as section 21 indicates, appealing against the appointment which has been, or is about to be, made on the basis of the competition. If a right of appeal is created by section 21, this is not to protect the appellant's rights, it is to prevent an appointment being made contrary to the merit principle. |
[14] Thus, it was the duty of the Appeal Board to inquire whether the selection of Mr. Kenefick for appointment was made contrary to the merit principle.
[15] In reviewing the Appeal Board's decision, I am satisfied that the proper standard of review where -- as here -- the challenge to the Appeal Board's decision does not raise a question of law or jurisdiction, is one where the Court accords a high degree of deference to the decision-maker. In Boucher and McBride v. Canada (Attorney General), [1998] F.C.J. No. 1557, McKeown J. at pages 2 and 3 of his Reasons, remarked as follows:
| 7. There were many submissions made with respect to the standard of review applicable in this case. In my view, the standard with respect to findings of fact is at the high end of the spectrum -- that is, such findings should be accorded considerable deference by the reviewing court. Conversely, findings with respect to errors of law are at the lower end of the spectrum and are to be treated less deferentially. However, in light of my findings, this is not a case where the standard of review is of great importance. |
[16] The issue in Boucher, as in the case at bar, was whether a decision of the Appeal Board with respect to selections for appointment made by a selection board, ought to be interfered with.
[17] I note here that one of the issues raised by the applicant before the Appeal Board was whether the standards established for certification and experience were inconsistent with the Financial Administration Act. Mr. Ringham held that they were not inconsistent. Since this issue was neither raised nor argued before me, I shall not address it.
[18] The relevant part of Mr. Ringham's decision appears at pages 4 and 5 of his Reasons, where he writes:
| Decision and Reasons |
| I am satisfied with the interpretation by the selection board of the phrase "experience as a Marine Surveyor", as including the experience of the successful candidate in conducting surveys of vessels involved in accidents to determine the causes and contributing factors. This was reasonable and there is no basis on which to interfere with it. While the appellant provided some evidence that "Marine Surveyor" may have the usual meaning in the department of a person formally appointed as a Steamship Inspector, there was evidence from Mr. Kosanovich that the term is not always used so restrictively. Secondly, the department would not be required to adopt this usual meaning even if it were established, as both the appellant and the department provided evidence that the expression "marine surveyor" can also refer to persons who work in other areas. It is for the department to interpret the statement of qualifications, and the approach of looking at the actual work experience of applicants, rather than their formal titles, can only enhance the application of the merit principle. |
| I do not agree with the submissions of the appellant that "Marine Surveyor" denotes a formal professional qualification. Had the drafter intended that only those appointed under the Canada Shipping Act would qualify, that could easily have been specified. |
[19] As appears from the above passage, Mr. Ringham could not accept the applicant's submission that the expression "Marine Surveyor" denoted a formal professional qualification, i.e. those persons appointed under the provisions of the Canada Shipping Act, such as steamship inspectors.
[20] I agree entirely with Mr. Ringham that the selection board's interpretation of the words "Marine Surveyor" is a reasonable one. To accept the applicant's proposed interpretation would, in my view, be unduly restrictive of the words "Marine Surveyor". The Appeal Board accepted the Department of Transport's evidence, including that of George Kosanovich, a member of the selection board, who testified regarding the nature of the work carried out by marine surveyors. It was the Department of Transport's position that the work of marine surveyors included the surveying of vessels not only for inspection, but also for regulatory compliance, repairs, reconfiguration, insurance and accident causation. At page 4 of his Reasons, Mr. Ringham summarizes Mr. Kosanovich's evidence as follows:
| George Kosanovich, a member of the selection board, was called as a witness by the department. He was asked to elaborate on the screening of the successful candidate against the requirement of five years experience as a Marine Surveyor. He explained that there are several disciplines involved in marine surveying, including electrical, hull, machinery and nautical, and provided a three page summary of these disciplines. This document was prepared within the department several years ago for a purpose unrelated to this competition, and sets out particulars of the work of a Marine Surveyor. He stated that Transportation Safety Board inspectors were well respected, and that they needed overall experience in several of the disciplines of marine surveying and not just one, as is often the case with Marine Surveyors in his department. The authority of Transportation Safety Board inspectors exceeds that of his own staff in marine accident investigation. He has worked personally on several multi-million dollar investigations with the successful candidate. |
[21] As I have already indicated, the selection board's interpretation certainly cannot be qualified as unreasonable.
[22] The second question to be answered is whether Mr. Kenefick was qualified, i.e. whether he met the experience requirements set out in the Statement of Qualifications.
[23] Mr. Kenefick's work experience can be found in his application form and in particular, at page 2 thereof, where he describes his work experience in direct relation to the position for which he has applied. There he states, inter alia, that he has had 6-1/2 years of experience as an investigator with the Transportation Safety Board. He further states that in his capacity as investigator, he regularly surveyed vessels with a view to determining the causes and contributing factors of the accident which he was asked to investigate.
[24] Mr. Kosanovich testified before the Appeal Board that investigators with the Transportation Safety Board required, to perform their work, experience in a number of disciplines of marine surveying. He further testified that he had worked with Mr. Kenefick on a number of multi-million dollar investigations. Mr. Kenefick's curriculum vitae also supports, in my view, the selection board's conclusion that Mr. Kenefick was qualified for the sought after position. Consequently, there was, in my view, ample evidence before the Appeal Board to justify its conclusion that the selection board had properly assessed Mr. Kenefick's work experience.
[25] For the above reasons, this application shall be dismissed, with costs in favour of the Respondent.
Marc Nadon
JUDGE
OTTAWA, Ontario
December 5, 2000.