Date: 20010723
Docket: T-446-99
Neutral Citation: 2001 FCT 815
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
RICHARD LOW, GARY HARVIE,
THEA M. KRUGER and AKBARALI Y. ALIBHAI
Respondents
[1] This is an application for judicial review of an interlocutory decision of Carol-Ann Hart, Chairperson of the Public Service Commission Appeal Board rendered on February 8, 1999, wherein she made an order for disclosure of certain documents and materials associated with the Team Coordinator Simulation Exercise 427, a standardized test used by Revenue Canada to evaluate candidates in a closed competition.
[2] The facts leading up to this application are as follows. The respondents were candidates in three closed competitions held by Revenue Canada to staff Team Leader positions classified at the AU-04 group and level. The Department used Simulation 427, a standardized test developed and owned by the Public Service Commission, to assess the merit of candidates. The Selection Board found that the respondents were not qualified and they were eliminated from further consideration.
[3] The respondents launched an appeal against the selections for appointment pursuant to section 21 of the Public Service Employment Act and requested access to certain materials associated with Simulation 427, including:
a) the simulation's Background Information booklet;
b) the simulation test booklet;
c) the Assessor Manual;
d) the Respondents' written answers;
e) the selected candidates' written answers;
f) the notes and ratings of the selection Board on the respondents' performance; and,
g) the notes and ratings of the selection board on the performance of the selected candidates.
[4] The Public Service Commission agreed that the respondents could examine a maximum of six assessments including their own, for up to a thirty minute period for each assessment. However, it refused to provide access to the Assessor Manual nor would it provide the respondents with the assessments of all successful candidates. On January 27, 1999, a preliminary hearing was held before the Chairperson to address the request for disclosure. By decision dated February 8, 1999, the Chairperson ruled that the respondents should have access to the Assessor Manual and the assessments of the successful candidates, subject to certain controlled conditions.
[5] On March 10, 1999, the Attorney General commenced this judicial review application. By decision dated June 14, 1999, the Chairperson's ruling with respect to disclosure was stayed by this Court pending final disposition of the matter.
[6] After carefully considering the parties written submissions and the oral arguments presented at the hearing of this matter, I am satisfied that the judicial review application should be allowed and the decision of the Chairperson set aside.
[7] The legislative objective of the Public Service Employment Act is to ensure that appointments made within the Public Service are based on selection according to merit. To that end, this Court has consistently recognized the importance of maintaining the confidentiality of standardized tests on the grounds that disclosure of confidential test materials to public servants and others likely to take such tests could place them in a position to acquire information concerning expected responses and to use that information in future competitions or disseminate it to others, either intentionally or unintentionally. If the Commission cannot assure an appeal board that a test has not been compromised by retaining control of that test, it cannot use that test as an assessment tool and must replace it at great cost. Confidentiality of test materials is therefore an important aspect of the merit principle. These principles were stated by Rothstein, J in Barton and Watkins v. Canada (Attorney General) (1993), 66 F.T.R. 54 at p. 56 as follows:
In the proceedings before me there was no dispute between counsel as to the importance of maintaining confidentiality of the information at issue. There could be serious prejudice to the employer if the information sought was publicly disclosed because of the expense involved in the preparation and use of standardized tests. Indeed, counsel for the applicants stated that it was important to the applicants and to the Public Service Alliance of Canada that public servants be selected on the basis of merit and the efficacy and therefore the confidentiality of such tests is an important aspect of this objective
[8] The term "standardized test" is defined in the Commissions's Standards for Selection and Assessment as a systematic procedure for sampling an individual's behaviour in order to evaluate job-related competencies. The development, content, administration, scoring and communication of test results are accomplished in accordance with standard procedures to ensure consistency. Government departments and the Commission may refuse to disclose documents during appeals where disclosure might prejudice the continued use of a standardized test or affect the results of such a test by giving an unfair advantage to any individual. .
[9] The relevant legislative provision is section 24 of the Public Service Employment Regulations. It reads as follows:
| 24. (1) An appellant shall be provided access, on request, to any information, or document that contains information, that pertains to the appellant or to the successful candidate and that is liable to be disclosed before the appeal board. (2) The deputy head concerned shall provide, on request, to the appellant a copy of any document referred to in subsection (1). (3) Despite subsections (1) and (2), the deputy head concerned may refuse to allow access to information or a document, or to provide a copy of any document, if the disclosure might (a) threaten national security or any person's safety; (b) prejudice the continued use of standardized test owned by the department or commercially available; or (c) affect the results of such standardized test by giving an unfair advantage to any individual. (4) Despite subsections (1) and (2), the Commission or the Commission's representative may refuse to allow access to any information or document, or to provide a copy of any document, if its disclosure might (a) prejudice the continued use of a standardized test owned by the Commission or commercially available; (b) affect the results of such a standardized test by giving an unfair advantage to any individual. (5) Where the deputy head concerned or the Commission or its representative refuses to allow access to any information or document under subsection (3) or (4), the appellant may request that the appeal board order that access. (6) Where the appeal board orders access to any information or document under subsection (5), that access is subject, before and during the hearing, to any conditions that the appeal board deems necessary in order to make certain that: (a) national security or any person‘s safety will not be threatened; (b) the continued use of a standardized test referred to in subsection (3) or (4) will not be compromised; or (c) the results of such a standardized test will not be prejudiced by giving an unfair advantage to any individual. (7) Any information or document obtained under this section shall be used only for purposes of the appeal. |
24.(1) L'appelant a accès, sur demande, à toute l'information ou tout document qui contient des renseignements concernant lui-même ou le candidat reçu et qui est susceptible d'être communiqué au comité d'appel. (2) L'administrateur général en cause fournit, sur demande, à l'appelant une copie de tout document visé au paragraphe (1). (3) Malgré les paragraphes (1) et (2), l'administrateur général en cause peut refuser de donner accès à de l'information ou à des documents ou de fournir copie de documents si leur divulgation risquerait: a) soit de menacer la sécurité nationale ou la sécurité d'une personne; b) soit de nuire à l'utilisation continue d'un test standardisé qui appartient au ministère ou qui est offert sur le marché; c) soit de fausser les résultats d'un tel test standardisé en conférant un avantage indu à une personne. (4) Malgré les paragraphes (1) et (2), la Commission ou son représentant peut refuser de donner accès à de l'information ou à des documents ou de fournir copie de documents si leur divulgation risquerait: a) soit de nuire à l'utilisation continue d'un test standardisé qui appartient à la Commission ou qui est offert sur le marché; b)soit de fausser les résultats d'un tel test standardisé en conférant un avantage indu à une personne. (5) Lorsque l'administratur général en cause ou la Commission ou son représentant refuse de dosser accès à de l'information ou à des documents en vertu des paragraphes (3) ou (4), l'appelant peut demander que le comité d'appel ordonne d'accorder cet accès. (6) Lorsque le comité d'appel ordonne d'accorder l'accès à de l'information ou à des documents en vertu du paragraphe (5), cet accès est assujetti, avant et pendant l'audition, aux conditions que le comité d'appel estime nécessaires pur empêcher que: a) la sécurité nationale ou la sécurité d'une personne ne soit menacée; b) l'utilisation continue d'un test standardisé visé aux paragraphes (3) et (4) ne soit compromise; c) les résultats d'un tel test standardisé ne soient faussés en conférant un avantage indu à une personne. (7) Toute information ou document obtenu en vertu du présent article ne peut être utilisé qu'aux fins de l'appel. |
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[10] In Kaczmar v. Canada (Attorney General) (1999), 172 F.T.R. 197 and Jain et al. v. Canada (Attorney General) (1999), 179 F.T.R. 92, this Court had the opportunity to interpret Regulation 24 and concluded that it required an Appeal Board Chairperson to decide three issues before ordering access to confidential materials associated with a standardized test.
[11] The first issue concerns the pertinence and relevance of the confidential material to which access is sought. The Chairperson must be satisfied that the material pertains to the appellant or to the successful candidate and is liable, by reason of its relevance, to be disclosed before the Appeal Board. Secondly, the Chairperson must decide whether providing access to the confidential materials might prejudice the continued use of a standardized test or affect the results of a standardized test by giving an unfair advantage to any individual. If this latter question is answered in the affirmative, the third and final issue is whether the prejudice to the future use of the test can be avoided through the imposition of conditions. If the Chairperson is not satisfied that any conditions will prevent that prejudice, he or she is not to order access to the material in question.
[12] In the present case, it is clear that the confidential test materials at issue pertain to the respondents and to the successful candidates and are relevant to the respondent's appeal. Indeed, the Attorney General has conceded this point. As such they are liable to be disclosed within the meaning of subsection 24(1) of the Public Service Employment Regulations.
[13] However, it is equally clear to me that having made that determination, the Chairperson then failed to determine whether disclosure of the scoring manuals and test papers of the successful candidates to the respondent might prejudice the continued use of the Team Coordinator Simulation Exercise 427 or affect the future results of the test by giving the respondents or others an unfair advantage. In effect, she did not make a finding as to the possibility of prejudice because she did not address the issues raised by section 24 of the Regulations. Instead, she asked herself the wrong question by attempting to balance the issues of cost and confidentiality with the appellant's right to be satisfied that the process was conducted fairly and impartially. She decided that the balance favoured the respondent's grounds for appeal without making the findings of fact required by the Regulations.
[14] There is little doubt that if the respondents are granted access to the scoring manuals associated with the Team Coordinator Simulation Exercise, they will be able to familiarize themselves with the correct responses and thereby improve their performance should they take the test again. In such circumstances, they will have an unfair advantage over other candidates who have not seen the manuals. The continued use of these tests therefore, will be prejudiced and the results, when the exercise is administered in the future, will be affected by the possibility of unfair advantage.
[15] The same consequences will follow if the respondents are permitted to review the test papers of all of the successful candidates. Under the terms of the order made by the Chairperson, the respondents would be able to review each of those test papers for thirty minutes. This degree of access will undoubtedly assist the respondents should they take the test again and affect the results. I agree with the applicant that under the circumstances, the test will not afford an accurate measurement of the ability of the respondents to act appropriately in response to new information.
[16] Furthermore, providing the respondents with access to the scoring manual and the test papers of all successful candidates significantly increases the risk that the information contained therein will be communicated to others, including persons who might take the test again. Revenue Canada and the Commission will lose control of the test materials and will not be able to assure future Appeal Boards that they have not been communicated to others. In the result, it is quite possible that the tests would have to be discarded and replaced at significant costs.
[17] Accordingly, while there is clearly a right to full disclosure provided for in subsection 24(1) of the Regulations, that right is circumscribed by the confidentiality provisions in the remaining subsections. In order to balance the two of them, it is incumbent upon an appeal board to consider the questions in precisely the way they are set out in Jain.
[18] I am also persuaded that the Chairperson erred by imposing an unreasonable burden and standard of proof on Revenue Canada and the Commission which required that they support their concerns of prejudice to the tests and the merit principle with sufficient data. That is a burden of proof which far exceeds the one set out in the Public Service Employment Regulations; namely, that the possibility of prejudice exists. The Commission is required to demonstrate that compromise to the test or prejudice of its results is possible if disclosure is made. If the possibility of compromise or prejudice exists, and the appellant cannot show that either can be eliminated, the appeal board should not order access to the materials. The issue which the Chairperson should have addressed is whether, if the respondents were given access to the scoring manual and test papers, it was certain that such access would not prejudice the continued use of the test or affect future results by giving an unfair advantage. There is no requirement for the Commission or the departments to come forward with scientific evidence that disclosure of the answers will improve a candidate's results in future competitions.
[19] As I stated at the outset, the legislative objective of the Public Service Employment Act is to ensure that appointments made within the Public Service are based on selection according to merit. It is imperative that the Regulations be interpreted and applied in a manner which is consistent with that objective. As stated in Driedger on the Construction of Statutes (R. Sullivan, 3rd ed., Toronto: Butterworths, 1994), at p. 131:
There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking this into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just.
[20] For all of these reasons, the application is allowed. The interlocutory decision of the Chairperson is set aside and the issue of disclosure of the scoring manuals and test papers of the successful candidates is remitted to the Appeal Board for determination in accordance with these reasons.
JUDGE
OTTAWA, Ontario
July 23, 2001