Ottawa, Ontario, June 26, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES
REASONS FOR JUDGMENT AND JUDGMENT
[1] Barry Pugh applied for a position within the Translation Bureau of Public Works and Government Services Canada ("PWGSC"). He was screened out of the competition because he was deemed not to have the necessary management experience. Mr. Pugh's subsequent appeal to the Public Service Commission Appeal Board ("PSCAB") was rejected, with the Board finding that Mr. Pugh had not demonstrated that the merit principle had not been observed in connection with the selection of the successful candidate.
[2] Mr. Pugh now seeks judicial review of the Board's decision, asserting that the selection process was fundamentally flawed in a number of material respects. Having carefully considered each of Mr. Pugh's submissions, and for the reasons that follow, I am satisfied that this application should be dismissed.
Background
[3] In May of 2004, PWGSC held a staffing competition for the position of "Section Head, Debates". The competition was originally scheduled to close on June 14, 2004, but was subsequently extended to June 18 in an effort to attract more candidates. Ultimately, seven people applied for the position.
[4] One of these candidates was an individual who will be referred to in this decision as "DP". DP had been in the job, on an acting basis, since August of 2001.
[5] The English version of the Statement of Qualifications required that candidates possess "recent experience in managing teams of professionals". However, the French version of the Statement of Qualifications stated that candidates were to have "Expérience récente en gestion d'équipe de professionnels", the word "équipe" being used in the singular.
[6] In the course of the disclosure process leading up to Mr. Pugh's hearing before the PSCAB, Mr. Pugh was advised that "recent" experience was being defined as supervising teams at the time of the competition, and having done so for at least six months. A "team" was defined as a group of at least five professionals in a language field.
[7] However, at the hearing, members of the Selection Board indicated that the definition of "recent experience" that had actually been used was "six months of continuous experience in the last two years". The other definition had allegedly been provided to Mr. Pugh in error.
[8] Mr. Pugh was screened out of this competition as he did not have "recent experience managing teams of professionals". According to his résumé, Mr. Pugh last managed a team of professionals between November of 1999 and June of 2000.
[9] Another candidate was also screened out of the competition because of a lack of recent management experience. A third candidate was screened out for failing to meet the education requirements stipulated in the Statement of Qualifications.
[10] Of the four candidates who were screened in, one withdrew from the competition prior to his interview, and another was deemed not to be qualified after the assessment phase. Two candidates were declared to be fully qualified - DP, and a candidate who will be referred to as "LB". DP was offered the position, although he declined the offer, and LB was subsequently appointed to the position.
[11] Pursuant to section 21 of the Public Service Employment Act, Mr. Pugh then appealed against the appointment made, asserting that there were numerous defects in the selection process.
The Decision of the PSCAB
[12] The PSCAB commenced its analysis by noting that, for an appeal to succeed, it must be established, on a balance of probabilities, that an irregularity existed in a staffing process, and that the irregularity affected the merit of the appointments in question. That is, the Board will only intervene where "a competition was held in circumstances such that there could be some doubt as to the fitness to determine the merit of the candidate": Charest v. Canada(Attorney General), [1973] F.C. 1217 (FCA), at ¶ 12.
[13] With respect to the requirement for "recent experience in managing teams of professionals", the Board found that this criterion was reasonable, in light of the current needs of the organization. Moreover, the Board was satisfied that the experience requirement was not designed to screen out candidates other than DP.
[14] In this regard, the Board observed that four out of the seven original candidates met the experience requirement, finding that the evidence did not establish that DP had been given an unfair advantage by the selection board.
[15] Insofar as the discrepancy between the English and French versions of the Statement of Qualifications was concerned, the Board was satisfied that the discrepancy was nothing more than a minor typographical error.
[16] Mr. Pugh also alleged that the selection board, which was made up of two Francophones, had exhibited a pro-Francophone bias. The Board applied the test established by the Supreme Court of Canada in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, asking itself what "an informed person, viewing the matter realistically and practically - and having thought the matter through" would conclude. In this regard, the Board was satisfied that Mr. Pugh had failed to demonstrate that any reasonable apprehension of bias existed on the part of the selection board, and that there was no element of pre-selection favouring DP, nor any impropriety in the selection for appointment.
[17] Mr. Pugh's final allegation was that the qualifications required in the 2004 selection process were more restrictive than those that had been used to appoint DP to the acting position in 2001. Mr. Pugh contended that this was further evidence of an effort being made to tailor the job requirements in a manner calculated to favour DP.
[18] The Board did not accept this contention. Citing the decision in Carty v. Canada, [2004] F.C.J. No. 1536, 2004 FCA 300, the Board held that the establishment of qualifications for a position is the sole responsibility of deputy heads. As a consequence, the Board declined to intervene.
[19] In light of the foregoing analysis, the Board was satisfied that the proposed appointment did not violate the merit principle, and, accordingly, Mr. Pugh's appeal was dismissed.
Legislative Scheme
[20] Mr. Pugh's appeal to the PSCAB was brought pursuant to s. 21(1) of the Public Service Employment Act, R.S. 1985, c. P-33, which provides that:
| 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. |
[21] Also relevant to this application are subsections 10(1) and 12(1) of the Act, which state that:
| 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.
12. (1) For the purpose of determining the basis for selection according to merit under section 10, the Commission may establish 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. |
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.
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. |
Standard of Review
[22] In Davies v. Canada (Attorney General), [2005] F.C.J. No. 188, 2005 FCA 41, another case involving a decision of the PSCAB, the Federal Court of Appeal performed a pragmatic and functional analysis in order to determine the correct standard of review to be applied.
[23] The purpose of the pragmatic and functional analysis is to ascertain Parliament's intent as to the level of deference to be accorded to a decision-maker, in light of the nature of the question that the decision-maker is called upon to answer.
[24] After examining the four factors outlined by the Supreme Court of Canada in cases such as Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, the Federal Court of Appeal concluded that the appropriate standard of review to be applied to decisions of the PSCAB on questions relating to the selection process is reasonableness: Davies,
at ¶ 23.
[25] As this Court has previously noted, for the Court to intervene in relation to findings of fact made by the PSCAB, such findings must be patently unreasonable: Lai v. Canada(Attorney General), [2001] F.C.J. No. 1088, 2001 FCT 740, at ¶ 38.
[26] Finally, to the extent that Mr. Pugh's arguments raise issues of procedural fairness, it is for the Court to determine whether the procedure that was followed in a given case was fair or not, having regard to all of the relevant circumstances: Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404, at ¶ 52-53.
Analysis
[27] Before turning to consider the arguments advanced by Mr. Pugh, it is helpful to keep in mind that the purpose of an appeal under section 21 of the Public Service Employment Act is not to protect an appellant's rights, but rather to prevent an appointment contrary to the merit principle: Davies, above at ¶ 13.
[28] It should also be noted that Mr. Pugh identified numerous additional areas of concern, some of which were not only not raised in his memorandum of fact and law, but were also not supported by any evidence. While I have carefully considered all of the issues and arguments advanced by Mr. Pugh, it is only necessary to address some of them in this decision
[29] Mr. Pugh commenced his argument by observing that the tapes of his hearing provided by the PSCAB are blank, and that no record exists of the hearing. Mr. Pugh says that he needed the tapes to establish that a witness had testified that DP had expressed concerns about his own suitability for the position in question. Although he did not use this precise language, I understand Mr. Pugh to be arguing that his right to judicial review in this Court is compromised by the lack of a record of the PSCAB hearing.
[30] I do not accept this submission. As the Federal Court of Appeal observed in Kandiah v. Canada(Minister of Employment and Immigration)[1992] F.C.J. No. 321, 141 N.R. 232, a meaningful right of review may exist in the absence of a transcript or a recording of the proceedings under review. In the absence of a transcript, an applicant may establish by other means what transpired at the hearing.
[31] I turn now to consider Mr. Pugh's primary argument, which relates to the discrepancy between the English and French language versions of the posters advertising the competition.
[32] Invoking the Canadian Charter of Rights and Freedoms, the Official Languages Act, the Canadian Human Rights Act, the Employment Equity Act, the Public Service Employment Act and Regulations, and Treasury Board official languages requirements, Mr. Pugh asserts that the English version of the competition notice and Statement of Qualifications imposes a stricter qualifying standard than that described in the French version of the same documents. According to Mr. Pugh, this resulted in harm being caused - primarily to Anglophone would-be applicants, but also to Francophone individuals who may have relied on the English version of the documents in question.
[33] Mr. Pugh expressed his argument as a "simple syllogism", stating that the law requires that identical information be provided in both the English and French versions of competition documents, that different information was provided in this case, and that, as a result, the documents in question are in violation of the law.
[34] There is no doubt that the English and French versions of the competition documents differ slightly. The question considered by the PSCAB was whether this difference was material. In this regard, the PSCAB found that the difference was nothing more than a minor typographical error.
[35] Mr. Pugh submits that the difference cannot reasonably be explained as an innocent typographical error. In support of this contention, Mr. Pugh points out that the difference in meaning in the English version resulted not only from the addition of the letter "s" to the word "team" in the English version, but also from the omission of the word "a" before the word "team". While one difference might be attributable to an innocent typographical error, he says, the two differences are evidence of a conscious intent. As a consequence, he says that the Board's finding that the difference was nothing more than a minor typographical error cannot stand.
[36] I do not accept this submission, which is premised only on a consideration of the English version. It is equally possible that the error that was made was made in drafting the French version, by the omission of a single letter "s" from the word "équipe", as the French sentence is structured in such a way that the use of the plural "équipes" would have resulted in a more grammatically correct sentence.
[37] Moreover, the PSCAB had the opportunity of observing the witnesses, and of considering the explanation for the discrepancy provided by those involved in running the competition. In all of the circumstances, I have not been persuaded that the Board's finding that the discrepancy was nothing more than a minor typographical error was patently unreasonable.
[38] There was no evidence before the Board that anyone was dissuaded from applying for the position in question as a result of the differences in the two documents. Indeed, Mr. Pugh himself applied, even though he had only supervised a single team of professionals.
[39] Mr. Pugh also submits that the linguistic discrepancy is part of a pro-Francophone bias in the hiring process. As further evidence of this, he points to the fact that both members of the selection board were Francophones, as were both of the successful candidates.
[40] While conceding that this, by itself, would not be enough to establish bias, Mr. Pugh says that one also has to consider the fact that DP was the successful candidate, notwithstanding the fact that he had evidently expressed concerns about his suitability for the job. As Mr. Pugh expressed it "what person in his right mind appoints an individual to a job who has expressed doubts about his own suitability?"
[41] According to Mr. Pugh, when all of the facts and circumstances are taken together, it leads to the inescapable conclusion that there was a pro-Francophone bias in the hiring process, "whether intentional or not".
[42] I have carefully examined all of the facts and circumstances alleged by Mr. Pugh to give rise to either a reasonable apprehension of, or actual bias on the part of the selection board. I note that there is no evidence to support his contention that DP had expressed reservations about his own suitability for the position. However, even if I accept that such a statement was made, applying the test articulated in the National Energy Board case, I am nonetheless satisfied that the PSCAB's conclusion that the evidence did not support a finding of either reasonable or apprehended bias was indeed correct.
[43] Before this Court, Mr. Pugh alleged that a pro-Francophone bias was also exhibited by the presiding member of the PSCAB, who was herself a Francophone. This argument was not raised in Mr. Pugh's memorandum of fact and law, and the respondent objected to such an argument being made without notice.
[44] I agree that the argument is improper, in that no notice of it was given. That said, given that Mr. Pugh seeks to impugn the integrity of the member, I intend to dispose of the argument by observing that the evidence before the Court would not, in my view, lead a reasonable and informed person, viewing the matter realistically and practically, and having thought the matter through, to conclude that there was either a reasonable apprehension of - or actual - pro-Francophone bias on the part of the member.
[45] Finally, Mr. Pugh has not persuaded me that the Board's finding that the competition had not been tailored so as to favour the appointment of DP was patently unreasonable. It is true that the requirements for the position evolved between 2001, when DP was first awarded the position on an acting basis, and 2005, when the competition in issue was held. However, witnesses involved in the staffing process testified before the Board that this was because the requirements of the job itself had changed. This testimony was accepted by the Board.
[46] Moreover, in coming to the conclusion that the evidence did not demonstrate a favouring of DP, the PSCAB also considered the fact that the time for applying for the position was extended after DP had applied, so as to ensure a bigger pool of candidates to be evidence that the process was indeed fair.
[47] Similarly, the fact that four out of seven candidates were able to meet the experience criterion indicated to the Board that the experience requirements had not been tailored to exclude everyone but DP.
[48] Finally, the Board noted that the evidence did not demonstrate that DP's acting appointment, coupled with the questions asked by the selection board, gave him an unfair advantage. Mr. Pugh has not directed me to any evidence that would call this finding into question.
[49] Taken together, the evidence quite reasonably supported the Board's finding that the competition was not tailored to favour the appointment of DP.
[50] For these reasons, the application for judicial review is dismissed, with costs.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the application for judicial review is dismissed, with costs.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1059-05
STYLE OF CAUSE: BARRY K. PUGH v.
THE MINISTER OF PUBLIC WORKS AND
GOVERNMENT SERVICES CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 19, 2006
REASONS FOR JUDGMENT
AND JUDGMENT BY: Mactavish J.
APPEARANCES BY:
Mr. Barry K. Pugh THE APPLICANT
Mr. Alexander Kaufman FOR THE RESPONDENT
SOLICITORS OF RECORD:
Barry K. Pugh
Toronto, Ontario THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT