Date: 20001026
Docket: T-164-99
BETWEEN:
JADWIGA MAJDAN
Applicant
- and -
ATTORNEY GENERAL OF CANADA,
R.M. MACPHEE, AQUIL ALI and GEORGE FARAH
Respondents
[1] Pursuant to section 18.1 of the Federal Court Act, this is an application for judicial review of the decision, dated January 5, 1999, by Gaston Charbonneau, Chairperson, Public Service Commission of Canada, Appeal Board, made pursuant to section 21 of the Public Service Employment Act ("PSEA") against the selections for the appointments to the positions of Project Manager AR-06 and AR-05 with Public Works and Government Services Canada ("PWGSC"), at Hull, Quebec, (Files no. 98-SCV-00514 and 98-SCV-00515).
[2] In October 1997, PWGSC Real Property Services posted competition notices of project management positions notably at AR-05 and AR-06 levels.
[3] On October 10, 1997, the applicant applied for the AR-05 and the AR-06 posts.
[4] On November 4, 1997, the exams for the AR-05 and AR-06 posts took place in Hull, Quebec. The passing grade for the AR-05 position was 65% and 70% for the AR-06 position.
[5] Candidates who achieved the passing grade in the written examination were invited to attend an oral interview to evaluate their other abilities and their personal suitability. The applicant finished with a result of 81% and moved on to the oral interviews.
[6] In February 1998, the applicant contacted, through E-mail and telephone, the Human Resources Department and the PMD Management to find out why her references were not called. There was no reply to her calls.
[7] In April 1998, the applicant received notification from the Human Resources Department that she had not been selected for the two positions for which she had applied.
[8] On April 8, 1998, at her request, a Post-Competition Board meeting was held. The applicant was advised of her test results. She scored 81% on the knowledge examination but scored 58% on the ability exam. Her score for the abilities factors was notably calculated on the basis of Question 10 of the written examination and her oral interview result. Her low score on the ability exam was due in part to her failure to complete Question 10 (writing ability) of the exam which affected the whole evaluation, since the Selection Board, based on the "ability" results, did not complete the Personal Suitability Assessment.
[9] Based on that information, the applicant filed an appeal against the nominations on the two eligibility lists.
[10] On July 20, 1998, a disclosure meeting took place: the three interviewers, the Human Resources representative, Mr. Charette, the PIPSC and the applicant were present. A PSC hearing was scheduled for September 1998. However, due to a strike at the PIPSC, the hearing was re-scheduled for December 15, 1998.
[11] On December 15, 1998, both the applicant and the PWGSC tendered evidence and made submissions.
[12] On January 5, 1999, the Chairperson rendered his written decision rejecting the applicant's claim.
APPLICANT'S ARGUMENTS
[13] The Appeal Board erred in law and rendered a patently unreasonable decision in concluding that the competition in question respected the merit principle in the following areas:
- Education and professional registration (Certification of Georges Farah);
- Written exam revised rating and method of granting scores;
- Assessment tools.
[14] The Appeal Board failed to observe a principle of natural justice by dismissing the applicant's claim that:
- Evaluation of the written exam was unfair;
- Written exam instructions were misleading;
- Performance on project management position over time of six years (applicant's previous experience) should have been considered;
- Her actual writing experience was ignored;
- Her voice was unreasonably assessed.
[15] The Appeal Board's decision was made without regard for the material presented at the hearing:
- Errors in the evaluation of the written exam;
- Issues that were part of the allegations are not included in his decision.
RESPONDENT'S ARGUMENTS
[16] The respondent submits that the Appeal Board did not commit a reviewable error and that there is no basis for intervention by this Honourable Court. In particular, the respondent submits that the Appeal Board did not err in law or render a patently unreasonable decision and that the Appeal Board based his decision upon findings of fact made without error on the basis of the evidence before him.
[17] The respondent further submits that the Appeal Board did not fail to observe a principle of natural justice. The rejection of the applicant's allegations cannot be considered a violation of the principles of natural justice.
ANALYSIS
[18] Pursuant to paragraph 21(1) of the PSEA, the main purpose of an appeal of a Selection's Board's decision is to ensure that the merit principle is respected:
| 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 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. |
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[19] Such principle is the basis of the entire selection process; not respecting it would allow arbitrary decisions. The essence of this concept is well defined by Justice Pratte of the Federal Court of Appeal in Charest v. Attorney General of Canada, [1973] F.C. 1217 at 1221 (F.C.A.):
The holding of a competition is one means provided by the Act to attain the objective of selection by merit. 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.
[20] Therefore, the main duty of the Appeal Board is to ensure that the Selection Board assessed the candidates objectively and that the merit principle is respected. As stated by Justice Pratte of the Federal Court of Appeal in Laberge v. Canada (A.G.), [1988] 2 F.C. 137 (F.C.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.
[21] Furthermore, the process must also be open and transparent. The Appeal Board must evaluate the objectivity of the process as a whole. As observed by Justice Dickson inKane v. Bd. of Governors of the U.B.C., [1980] 1 S.C.R. 1105, at 1116:
We are not here concerned with proof of actual prejudice, but rather with the possibility or the likelihood of prejudice in the eyes of reasonable persons.
EDUCATION
[22] The applicant submits that the Appeal Board erred in law and rendered a patently unreasonable decision in concluding that the competition in question respected the merit principles in the area of Education and Professional Registration.
[23] The selection standards prescribed by the Commission in the case at bar did not require the PWGSC to insist that candidates for the project manager positions hold professional certification as an architect. The statement of qualifications relating to education required either graduation from a recognized university with specialization in architecture or eligibility for certification as a professional architect in Canada.
[24] The applicant had alleged before the Appeal Board that the PWGSC had always required for its positions that architect candidates have a professional accreditation. The applicant alleged that the department, in removing this requirement, had contravened to the merit principle.
[25] The applicant submits before this Court that all the posters for AR and ENG project manager positions she could find, called for registration/eligibility to be registered as professional architects or engineers. The applicant claims that since these classifications (AR and ENG) are generic, federal employees that are classified as ARs or ENGs can be deployed, seconded and assigned to different positions requiring the same level, not only within the same department, but also between departments.
[26] With respect to this argument, I do not agree with the applicant and find that the Appeal Board did not err in law when it stated at page 10 of the decision:
En ce qui a trait à la première allégation, il appartient à la gestion de préciser les qualités requises pour combler un poste donné. Les postes à combler n'étaient pas des postes d'architecte mais plutôt de gestionnaire de projets où un diplôme en architecture s'avérait essentiel. Par ailleurs, j'ai peine à croire qu'une attestation professionnelle était nécessaire en l'instance. À mon avis, les normes de sélection permettaient à la gestion de n'insister que sur la possession d'un diplôme d'une université reconnue avec spécialisation en architecture.
[27] I find that the Appeal Board was entitled to conclude that the positions were not architect positions but project manager positions in light of the evidence before it.
[28] Furthermore, the Appeal Board did not err in concluding that the selection standards entitled management to only require a diploma. I find that the requirements in the case at bar respected the standards prescribed by the Commission when staffing positions in the AR group. Those standards (respondent's record, vol. 2, page 552) states:
Architecture and Town Planning Group (AR)
Architects
When staffing architect positions, the use of one of the following options is mandatory:
1. Education;
2. Occupational certification;
3. Education and occupational certification;
4. Education or occupational certification.
Education
Where education is required, the minimum standard is:
Graduation with a degree in architecture from a recognized university.
Where occupational certification is required, the minimum standard is:
Eligibility for certification as a professional architect in Canada.
[29] In light of the above standards for selection and assessment established by the Commission, the statement of qualifications prepared by PWGSC, in the case at bar, meets the fourth option of the standards, i.e. education OR occupational certification.
[30] This requirement also respects section 12 of the PSEA which provides:
| 12(1) For the purpose of establishing the basis for selection according to merit under section 10, the Commission may prescribe standards for selection and assessment as to education, knowledge, experience, language, residence or any other matters that, in the opinion of the Commission, are necessary or desirable having regard to the nature of the duties to be performed and the present and future needs of the Public Service. |
12.(1) Pour déterminer, conformément à l'article 10, les principes de la sélection au mérite, la Commission peut fixer des normes de sélection et d'évaluation touchant à l'instruction, aux connaissances, à l'expérience, à la langue, au lieu de résidence ou à tout autre titre ou qualité nécessaire ou souhaitable à son avis du fait de la nature des fonctions à exécuter et des besoins, actuels et futurs, de la fonction publique. |
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[my emphasis]
[31] I also agree with the respondent, the Appeal Board and the jurisprudence cited which indicate that the establishment of the basic qualifications to be admitted to participate in a competition is the exclusive prerogative of the department seeking to staff the position.
[32] Tremblay-Lamer J. in Murray v. Canada (AG) (1993), 69 F.T.R. 153 cited excerpts from Delanoy v. Public Service Commission Appeal Board, [1977] 1 F.C. 562 (F.C.A.):
Décary, J. stated at p. 56:
The establishment of qualifications for a position in the Public Service has been repeatedly held by this court to be the function of the department concerned and not a function of the Public Service Commission. It is also settled the jurisprudence that the function of an appeal board set up under the Act is "to enquire not into the qualifications established by the department for a position but into whether the merit principle prescribed by s. 10 had been observed in the selection and appointment of a candidate who had the qualifications determined by the department for the position" (see Brown v. Public Service Commission...)
This position was echoed by Marceau, J. at p.48:
[t]he "merit principle" is meant to govern the selection process that the Public Service Commission will follow in the exercise of its duty to judge and rank the candidates; it has no role to play in the establishment of the basic qualifications to be admitted to participate in the competition, the establishment of which is the exclusive prerogative of the Department.
[33] Therefore, this allegation is denied.
[34] The applicant submits that her first allegation was extended at the hearing to include the issue whether the respondent Farah met the educational and occupational standards.
[35] The applicant alleges that the respondent Farah's degree from an American educational institution cannot be considered Canadian academic equivalence because there is no evidence of its recognition by a Canadian educational institution. The applicant further alleges that the respondent Farah's statement in his application for the AR6 position that he is eligible to become a professional architect is without merit unless backed up by one of the provincial architectural association. According to the applicant, no such document was provided.
[36] The respondent submits that this issue was not among those disclosed by the applicant prior to the Appeal Board hearing and that the applicant's representative raised it during the course of the hearing and withdrew it when the department's representative tendered evidence that demonstrated that Mr. Farah was qualified. The respondent submits that the issue was therefore not dealt with by the Appeal Board in its decision and cannot be raised in this application.
[37] However, the respondent submits that in any event, the evidence before the Appeal Board clearly established that Mr. Farah had graduated from a recognized university with specialization in architecture and was eligible for certification as a professional architect in Canada.
[38] The applicant submits that the question of qualification of Mr. Farah was not withdrawn at the hearing, and filed, in support of this assertion, an affidavit of Mr. Michel Charette, who represented the applicant before the Appeal Board.
[39] The respondent filed an affidavit of Ms. Micheline Mainville, who was employed at the Business Line Team in the Human Resources Branch of the Department of Public Works and Government Services, to support its position.
[40] The Appeal Board, in its decision, did not broach the issue of Mr. Farah's diploma. If we accept the fact that the applicant had not raised this issue before the Appeal Board in a timely fashion and that the applicant's representative had withdrawn the argument before the Appeal Board, the question relating to the recognition of Mr. Farah's diploma does not have to be answered.
[41] I do not know if the applicant's representative withdrew the submission but the evidence shows that the allegation with respect to Mr. Farah's diploma did not appear in the applicant's allegations disclosed prior to the Appeal Board's hearing. However, the applicant explains that this allegation was extended at the hearing because of the lack of clarity and overlapping in Mr. Farah's CV, as well as the unwillingness of the department to respond to her request for confirmation of Mr. Farah's professional qualifications. Since there is ambiguity, I will proceed to analyse this allegation.
[42] Regarding the respondent's argument that the evidence before the Appeal Board clearly established that Mr. Farah had graduated from a recognized university, the following documents were presented to the Appeal Board:
Diploma of G. Farah, Degree of Bachelor of Architecture of the Lawrence Institute of Technology, 1986.
(respondent's record vol. 2, page 550)
Certificate of G. Farah, Member of the Royal Architectural Institute of Canada, 1997.
(respondent's record vol. 1, page 551)
Excerpts, List of Accredited Institutions, National Architectural Accrediting Board [U.S.], signed by Guillaume Savard, Executive Director, Canadian Architectural Certification Board.
(respondent's record, vol. 2, pages 556-558)
It seems that the Appeal Board considered that these documents were sufficient to establish that Mr. Farah graduated from a recognized university with specialization in architecture and decided not to mention it in the decision.
[43] Given the circumstances and the fact that this argument, not mentioned in the documents before the Appeal Board, was raised at the last minute before the Board, it could explain why the Board decided not to mention it.
[44] Nevertheless, in my opinion, the applicant failed to establish that Mr. Farah was not qualified. I find that the documents submitted are sufficient to establish Mr. Farah's qualification. I do not think that it was unreasonable for the Appeal Board to conclude that Mr. Farah was qualified in light of the documents that were presented to support Mr. Farah's qualification.
WRITTEN EXAMINATION
Question 10 - Abilities
[45] The applicant submits that the Appeal Board erred in law and rendered a patently unreasonable decision in concluding that the competition respected the merit principles in the area of the written exam, revised rating and method of granting scores.
[46] The applicant submits that Question 10 of the exam was not sufficiently identified and that the context was misleading. The applicant explained that she aimed at obtaining the highest possible score and chose to answer the questions in order of their score values. The score values were written on the right side of the exam sheets.
[47] The applicant states that two questions with only 5 points were her last priority. However, the last question (Question 10) which was indicated being worth 5 points, was in fact part of the next step of points out of 50 and was not part of the rest of the exam. Thus, in reality, the question was worth 10 points. The applicant submits that putting the letter "A" beside Question 10 on the left corner of the sheet was not enough to communicate the fact that it was not part of the rest of the exam.
[48] The applicant submits that in concluding that there was nothing wrong in the identification of the score of Question 10, the Appeal Board did not respect the principles of natural justice since the explanation demonstrates a lack of sensitivity and willingness to understand that the applicant's only fault was to trust the instructions and the information about relative insignificance of the Question 10 (5 points).
[49] The Appeal Board concluded that all the candidates had ten minutes to review the questions before the exam. The Appeal Board found that the text of Question 10 was very clear and that it was not a question relating to knowledge. The Appeal Board further concluded that the applicant ought to have realized that in choosing not to answer the question, she would have 0. The Appeal Board found that it was of little importance that the question's value was 5 points on 50 instead of 5 points on 100.
[50] The Appeal Board based its conclusion on the part of Question 10 that reads as follows:
| You are to prepare a complete and final letter for review by the Director of PMD. This exercise will be used to evaluate only your ability to communicate effectively in writing. |
Vous devez rédiger une lettre complète et finale qui sera remise au directeur de la Gestion des projets. Cet exercice nous permettra d'évaluer votre capacité à communiquer efficacement par écrit. |
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[51] Regarding this allegation, I was not convinced at first that the question and context was not misleading, particularly given the fact that the instructions relating to the exam stated as follows (respondent's record vol. 2, page 325):
2. There are ten (10) questions on the exam.
[52] This might give the impression that the ten questions relate to the same issue and are calculated together.
[53] However, when reading the questions of the exam, it is obvious that the first nine questions are related to knowledge and that the tenth question is there for a different purpose. The fact that Question 10 states that the exercise will be used to evaluate only the ability to communicate effectively in writing is significant in light of the other questions and also in light of the fact that the acronym "A5" is different from all the other questions.
[54] Furthermore, all the other questions were formulated differently than the 10th question and I cannot find that the Appeal Board erred when it found that Question 10 was not misleading, especially since the applicant had ten minutes to read the questions and had the chance to ask for more information about the exam.
[55] Also, I do not find that the Appeal Board did not respect the principles of natural justice when it stated that it was of little importance that the question's value was 5 points on 50 instead of 5 points on 100. The underlying premise of this comment is that for this question, it was not the value of the question that determined it's importance but the fact that the question was assessing the applicant's writing abilities. Thus, the value of the question did not matter because it was still important to answer the question since it was there to assess the writing abilities of the candidates.
Question 1 - Revision of Marks
[56] The applicant submits she spent a lot of time on Question 1 and obtained a high score compared to other candidates, except one, but that as a result of the revised scoring, the Selection Board gave everybody the perfect mark. The applicant submits that by doing so, the Department practically eliminated this question from the exam for all evaluation purposes. According to the applicant, eliminating the question was very prejudicial to her and the others who scored well and this went against the merit principle. Question 3 was also revised and had the same effect.
[57] The Appeal Board accepted the respondent's explanation, in light of the evidence, that the decision was re-evaluated because the first correction was too rigorous and unreasonable and concluded that the principle of merit was not infringed.
[58] The respondent submits that the role of an Appeal Board is not to ensure that the examinations have been marked properly but to ensure that a Selection Board has adhered to the merit principle in the process it adopts. The respondent submits that in this case, the Selection Board reconsidered its method of correcting the examinations, accepting responses that indicated that candidates had an adequate level of knowledge even if they could not provide the very specific answers expected.
[59] The respondent alleges that the re-evaluation did not offend the merit principles as all candidates were assessed against the same criteria. The respondent contends that the Selection Board had the discretion to reject as unreasonable the expectation of detailed answers and adopt instead a marking standard which, in its opinion, provided reliable assessment of the knowledge possessed by each candidates.
[60] This issue raises the question whether a Selection Board can revise its correction criteria on an examination when it observed that its first criteria was too onerous.
[61] The applicant relies on a decision of the Court of Appeal in Mackintosh v. Canada (Public Service Commission Appeal Board), [1990] F.C.J. No. 834 (F.C.A.). The applicant, in that case, was the only successful candidate out of 16 on the exam. Seeing that, the Selection Board decided to eliminate a question from the examination. Two other candidates were found to have a passing mark as a result of the elimination of the question. The Court of Appeal allowed the appeal and stated:
We are all of the view that there is error here. It is not enough for the Appeal Board to do as it did and ask if the Selection Board was in good faith. Rather it had first to ask itself, which it did not, if the rejected question was or was not a relevant one for the purposes of testing merit or to put the matter another way, the Board could not be satisfied that the merit principle had been respected unless it was satisfied that the rejection of question number 4 could have not impact upon the assessment of the relative merits of the candidates in that exam. On the present record it would not have been possible, without error, to make such a finding.
[62] However, the Appeal Board, in the present case has examined whether the change in the evaluation infringed the merit principle. The Appeal Board found that there was evidence that the first correction standard was to rigorous and that this criteria was unreasonable. This view does not appear unreasonable. Also, as the respondent noted, this new requirement was equally applied to every candidates. The respondent argued that this new standard provided a more reliable assessment of the knowledge possessed by each candidate.
[63] On the other hand, as noted by the respondent, in Burdecki v. Canada (Attorney General), [1996] F.C.J. No. 1225 (T.D.), the Court cited Scarizzi v. Marinaki (1994), 87 T.T.R. 66 (T.D.) which stated:
It is clear that one of the functions of the Appeal Board is to ensure as far as possible that Selection Board adhere to the merit principle in selecting candidates for positions from within the Public Service in accordance with s. 10 of the Act. However, it is not empowered to substitute its opinion with respect to a candidate's assessment or examination for that of the Selection Board. Only if a Selection Board forms an opinion that no reasonable person could form, may an Appeal Board interfere with the decision of the Selection Board.
[64] The same analysis applies to the applicant's allegation concerning Question 9 where the Appeal Board decided to change the rating of the questions. There was no evidence before the Chairperson that the revised marking standard was not applied evenly and consistently. I do not see any violation of the merit principle in the decision on this point.
Question 4
[65] The applicant alleges that the Selection Board was inconsistent in marking the answers to Question 4, in particular in awarding 11 points to the respondent Farah for an answer that in the view of the applicant was only worth 3 points.
[66] Question 4 reads as follows:
On a typical project who are the key stakeholders and in general terms what role would each play?
[67] The expected answer to Question 4 lists twelve possible stakeholders each of whom has several roles. The question required candidates to identify stakeholders and explain the roles they might play.
[68] Concerning this allegation, the Appeal Board accepted the respondent's argument that the value of each roles was not changed at the correction of the exam. The respondent explained that the Selection Board was of the view that the identification of the stakeholders and identification of their roles was of equal value.
[69] Thus, Mr. Farah identified three possible stakeholders and listed twelve roles. He was awarded 11 points out of 12 possible points.
[70] The applicant identified several stakeholders but few roles and received seven points.
[71] I find that the Appeal Board's conclusion on this issue is reasonable and that the Appeal Board was entitled to find the explanation that the Selection Board was of the view that the identification of the stakeholders and identification of their roles was of equal value, sufficient to dispel the applicant's contention.
ORAL INTERVIEW
[72] The applicant alleged before the Appeal Board that the Selection Board had to reconsider its evaluation of her responses given during the oral interview because the interview notes made by the Chairman of that Board have been lost. She alleges before this Court that the Appeal Board neglected to deal with this issue.
[73] The applicant also submitted that the Appeal Board had erred in rejecting the allegation that the Selection Board had not evaluated the applicant's abilities and personal suitability using all available information, in addition to the results of the interview. The applicant also alleged that since she had not answered Question 10 and had received 0 for her writing abilities, the Selection Board should have re-evaluated her writing abilities.
[74] The respondent submits that the Appeal Board did not deal with this issue because it was withdrawn during the hearing by the applicant's representative.
[75] Again, we are facing the same two contradictory affidavits as mentioned in previous paragraphs 38 and 39. The notes of the Chairperson were lost, nevertheless, the Chairperson of the Selection Board was not the only Board member present at all the interviews; and the notes of the other member present were available and provided.
[76] I am convinced that there was before the Board an appropriate and sufficient framework to demonstrate that the merit principle had been respected.
[77] Regarding the argument referring to the use of selection tools other than the interview, I accept the respondent's submission that it was open to the Board to assess the qualifications of the candidates in the manner it thought would provide the best assessment of their relative merit.
[78] Furthermore, the ability of all candidates to communicate in writing was evaluated using Question 10 of the examination, which the applicant did not answer. The Board was not obliged to turn to other tools to measure the applicant's ability in this area. Such a practice would have been unfair to other candidates and would have violated the merit principle.
[79] In conclusion, the applicant mentioned that many things were lost in her case: the tapes of the hearing were lost and the notes of the Chairperson of the Selection Committee were also lost.
[80] The lost of those tapes and notes is disturbing; nevertheless, I should wonder whether it raises enough questions to justify this Court to intervene, and my conclusions are that it is not the case.
[81] I am not convinced that this Court should intervene and this application for judicial review is dismissed with costs.
Pierre Blais
Judge
OTTAWA, ONTARIO
October 26, 2000