Federal Court Decisions

 

 

Date: 20061024

Docket: T-2171-05

Citation: 2006 FC 1262

Ottawa, Ontario, October 24, 2006

PRESENT:     The Honourable Mr. Justice Barnes

 

 

BETWEEN:

KALPANA GUPTA

Applicant(s)

and

 

HER MAJESTY THE QUEEN

 

Respondent(s)

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review brought by Kalpana Gupta from an interlocutory decision of the Public Service Commission Appeal Board (Board) rendered at Edmonton on November 4, 2005.

 

Background

[2]               At the root of this proceeding is a challenge by Ms. Gupta to the fairness of a competition for appointment to a position with Indian and Northern Affairs Canada (INAC). Ms. Gupta is presently employed with INAC and has applied from time to time for advancement. In early 2005, she applied to compete for a position as a Compliance Officer at the PM02 level. It was a required step in the competition process that all applicants complete a simulation test (test 425). Ms. Gupta took that test, but she was not successful and failed to make the eligibility list.

 

[3]               Ms. Gupta appealed the selection process under the provisions of the Public Service Employment Act, S.C. 2003, c. 22 (Act). To further her appeal, she requested disclosure of materials related to the administration of her simulation test including the assessor’s manual, the rating guide and the assessment data pertaining to her own test results and for those candidates who had passed the test.

 

[4]               It is common ground that simulation test 425 is a standardized format developed by the Public Service Commission (Commission) for repeated use in screening candidates for appointment to officer level positions in the Public Service. Ms. Gupta has acknowledged that simulation test 425 is closely related to simulation test 428, although the two tests are apparently used to screen candidates applying for different levels of appointment.

 

[5]               Because of the repetitive use of its simulation tests, the Commission naturally wants to maintain a degree of confidentiality around the assessment process. It is concerned that an unfair advantage may accrue to a candidate who is familiar with the rating criteria. It is also concerned that the efficacy of the tests would be compromised by widespread disclosure. On the other hand, this type of information may well be material to the fair disposition of an appeal from a failed candidate, particularly where there is an allegation that the test scores were unfairly or incorrectly measured.

 

[6]               These competing concerns are reflected in section 26 of the Public Service Employment Regulations, 2000, S.O.R./2000-80, which provides for disclosure of confidential test materials on the following basis:

 

 

[7]               It is clear from the Record that the Commission is very rigorous in its efforts to maintain the confidentiality of its standardized tests.  In order to address that concern and in accordance with the applicable regulations, the Commission has adopted a number of disclosure practices.  Those practices are intended to minimize the risk that prospective candidates for employment might obtain an advantage from exposure to the scoring methodology or that the general long-term validity of the tests might become compromised.

 

[8]               One of the principal means by which this confidentiality concern is addressed is through the involvement of a representative who acts as a surrogate for the candidate in reviewing the sensitive testing materials.  The candidate’s representative generally has full access to the testing information and can thereby assess its validity and report back to the candidate.

 

[9]               In this case, Ms. Gupta’s initial representative was Mr. Frank Janz.  The Record indicates that the Commission provided Mr. Janz with full access to the package of testing materials, subject to its usual two-stage access protocol.  The first stage involved a partial disclosure to Ms. Gupta and Mr. Janz of the non-contentious test materials followed by full disclosure to Mr. Janz.  That disclosure protocol also imposed the following additional conditions: 

a)         All disclosure must take place on the employer’s premises, under the supervision of the departmental representative.

 

b)        No copy, photocopy or reproduction of the above documents is to be allowed.

 

c)         The appellants and their representative should be allowed to consult the Background Information Booklet (Envelope A) and the Exercise Items (Envelope B) during the disclosure meeting.  All examination materials will have to be returned to the departmental representative at the conclusion of the meeting.

 

d)        The appellants and their representative should be allowed to take personal notes during the disclosure meeting, provided that such notes do not amount to a transcription of test materials.  At the end of Phase One of the disclosure meeting, all appellants’ notes will have to be turned over to their representative, Mr. Janz, who will keep them, together with his own notes, until the date set for the hearing.

 

e)         Mr. Janz shall endeavour not to disclose information obtained during Phase Two to any person, except during portions of the appeal hearing when any conditions imposed under subsection 26(5) of the Regulations respecting the exclusion of persons from the hearing are in effect.

 

 

[10]           Ms. Gupta has deposed in her affidavit that she was not satisfied with the involvement of Mr. Janz and disagreed with his advice that her appeal had no merit.  In the result, she sought to involve Dr. Noel Ayangma as her designated representative.  The Commission was prepared to allow for a substitution.  However, after enquires of Dr. Ayangma, the Commission found him to be unsuitable for full disclosure because of the possibility that he could obtain a future testing advantage if he were to pursue Public Service employment.  The Commission’s particular concerns were that Dr. Ayangma had held a fairly recent Public Service position at a level where the simulation tests would be used and that he was unable to rule out the possibility of seeking Public Service employment in the immediate future.  It was from this decision by the Commission, and in accordance with subsection 26(4) of the Regulations, that Ms. Gupta brought her appeal to the Board. 

 

Board Decision

[11]           The Board decision contains a detailed outline of the positions of the parties followed by an analysis of the applicable regulations and relevant case authorities.  It correctly identifies the three requisite considerations noted in the authorities for weighing a request for disclosure:  see Canada (Attorney General) v. Gill, [2001] F.C.J. No. 1171, 2001 FCT 814.  Specifically, it noted that the material sought must be relevant to the underlying proceeding, that access to the confidential materials might prejudice the continued use of the standardized test or offer an unfair advantage to any individual and, finally, that any resulting prejudice cannot be avoided through the imposition of conditions. 

 

[12]           In addressing the above considerations, the Board noted that the information sought by Ms. Gupta was relevant to her challenge to the employment selection decision – a point that was acknowledged by the Commission.

 

[13]           The Board also accepted that the access conditions imposed upon Mr. Janz were adequate in the situation of Dr. Ayangma to address the Commission’s concern that the sensitive test materials not be widely disseminated. 

 

[14]           The contentious issue facing the Board concerned the risk that Dr. Ayangma might obtain an unfair advantage by being exposed to the sensitive test materials if he later applied for a position within the Public Service for which the subject simulation tests would be administered.  The Board was also obliged to consider the imposition of further conditions which could mitigate that risk.

 

[15]           The decision by the Board to deny access by Dr. Ayangma to the confidential test materials addresses most of the arguments advanced by Ms. Gupta before this Court.  With respect to the issue of the risk posed by Dr. Ayangma’s exposure to these materials, the Board held that he had failed to sufficiently rule out the possibility of seeking a Public Service position which might require the administration of one of the simulation tests:  see below at para. 27.

 

[16]           In dealing with the question of the Commission’s alleged differential treatment of Dr. Ayangma’s situation and that of Mr. Janz and the selection board members, the Board concluded:

Mr. Janz’ position within the Public Service was different.  Based on the nature of that position, Dr. Forster’s conclusion that Mr. Janz could not reasonably aspire to any positions for which the 425 or 428 tests might be applicable was appropriate.  I accept his assessment that the risk of giving him an unfair advantage was almost nonexistent.

 

…

 

However, the reasons a selection board has full access to standardized test materials are different from the reasons an appellant or an appellant’s representative might receive such access.  A selection board needs to review all the test materials in order to be able to use the test to assess the candidates.  The appellant and her representative need to be provided access to this material in order to be able to present the appeal.  The restrictions imposed on appellants by the Public Service Employment Regulations do not apply to selection board members.  My role is to determine whether there was a risk that providing Dr. Ayangma with access to the 425 test materials might affect the results of a standardized test by giving him an unfair advantage.  I have concluded that it might affect the results of the 428 test, were he to take it, by giving him an unfair advantage over other candidates applying for the same position.  It is possible that at least one of the selection board members might be accorded a similar advantage for the same reasons, but I have no jurisdiction to intervene on these grounds, nor does it negate my conclusion with respect to Dr. Ayangma.

 

 

[17]           Finally, in addressing the issue of imposing additional conditions on Dr. Ayangma’s access, the Board held:

Dr. Ayangma’s verbal commitment at the second teleconference not to take the 425 and 428 tests was made after the department explained its rationale for denying him full access to the test materials.  Such a commitment would be difficult, if not impossible, to enforce.  In my view, there remains a risk that a person making this type of commitment for the purposes of being able to present an appeal could change his mind down the road if an opportunity to apply for a position which would require take the 428 test came along.

 

Dr. Ayangma added at the second teleconference that he was not interested in positions at the PM-4-6 level.  However, from Dr. Forster’s evidence, the test would not necessarily be limited to such positions.

 

It remains that there is a possibility that Dr. Ayangma could be provided with an unfair advantage as a result of receiving access to the test materials that he has requested, even if all the conditions imposed on his predecessor were imposed on him, and even when his undertaking not to take the two tests is taken into account.

 

 

Issues

1.                  What is the standard of review?

2.                  Did the Board make any reviewable error in its handling of the Applicant’s disclosure motion?

 

Analysis and Disposition

[18]           In Davies v. Canada (Attorney General), [2005] F.C.J. No. 188, 2005 FCA 41, the Federal Court of Appeal discussed at length the appropriate standard of review for decisions made by a Public Service Commission Appeal Board and concluded that, in relation to legal questions concerning the Act, the standard was correctness and, for questions relating to the selection process, the standard was reasonableness.  Notwithstanding the somewhat different issues presented by this case, I can see no basis for distinguishing the standard of review analysis in Davies and I will apply it here.  At the end of the day, the standard of review is of no consequence because, whatever the standard, I find that the Board was correct in its determination of legal issues and reasonable in its fact-based findings.

 

[19]           The Commission’s decision to limit Dr. Ayangma’s access to the confidential test materials was required to be assessed on the basis of the considerations expressed in section 26 of the Regulations.  A helpful summary of previous authorities dealing with the above regulation is offered in the decision by Justice Paul Rouleau in Gill, above.  The decision begins with a clear statement acknowledging the relative importance of protecting the confidentiality of the Commission’s standardized tests and states:

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…

 

[20]           The Gill decision goes on to endorse the practice of differential disclosure to a representative “who will not derive a benefit from such access” (see para. 20).  To justify non-disclosure to a candidate’s representative, the Commission “is required to demonstrate that compromise to the test or prejudice of its results is possible if disclosure is made” (see para. 18).  Thus, the burden upon the Commission is merely one of possible (and not probable) harm.

 

[21]           It is clear from the Board decision that it correctly understood the legal principles expressed in Gill.  The decision correctly articulates the Commission’s burden of establishing a possibility of advantage accruing to Dr. Ayangma from his exposure to the confidential test materials.  The Board was left with the responsibility to consider the evidence before it against the legal principles established by Gill.  It is in connection with the Board’s evidence-based analysis that Ms. Gupta based most of her arguments before me.

 

[22]           Much of Ms. Gupta’s argument to the Board and to this Court focussed on the supposed differential treatment accorded by the Commission to Dr. Ayangma as compared to Mr. Janz and the selection board members.  In addition, she contends that the Board misinterpreted the significance of Dr. Ayangma’s answers to the Commission’s questions concerning his future Public Service employment aspirations.  She also argues that, because Dr. Ayangma is not presently employed in the Public Service, he is exempt from the confidentiality regime. 

 

Differential Treatment

[23]           Ms. Gupta argues that the access limitations imposed upon Dr. Ayangma, are unfair, prejudicial and inconsistent with the treatment accorded to other similarly-placed persons. She points out that her first representative, Mr. Janz, was given full access to the test materials as were the members of the assessment board – all of whom are employed in the Public Service and who could potentially benefit from that access in future competitions. Ms. Gupta goes further to say that this differential treatment constitutes racial discrimination because both she and Dr. Ayangma are persons of colour whereas all of the other involved parties are Caucasian. It appears from the Record that Dr. Ayangma had made a similar accusation in his communication to the Commission when he questioned the limitations which it sought to impose on his access to the test materials.

 

[24]           I will deal first with Ms. Gupta’s allegation of racial discrimination. From my review of the Record, there is not a scintilla of evidence to support such an argument either in connection with the Commission’s decision to deny full disclosure to Dr. Ayangma or, more importantly, in the Board’s decision confirming the Commission’s position. Whatever else may be said of the Commission’s position or the Board’s decision, they were clearly based on bona fide and thoughtful concerns for maintaining the integrity of the standardized testing process – a statutorily recognized process which, after all, is intended to ensure that appointment decisions are merit-based and colour-blind.

 

[25]           The issue that was before the Commission and later before the Board involved a balancing of competing interests. It required consideration of Ms. Gupta’s right to a meaningful appeal through disclosure of relevant materials while attempting, at the same time, to maintain the integrity of the testing process by potentially restricting that disclosure. Finding the right balance between these two important concerns is, in short, the kind of decision on which reasonable people can have reasonable differences of opinion. The Record clearly discloses that the Commission and the Board handled this issue of disclosure with fairness, integrity, and on the merits. There is absolutely no basis to doubt the validity of the Board’s stated approach to the issue before it where it described the nature of the problem before it as follows at paragraph 29:

The ultimate question which I must address is how to balance the right of the appellant to be able to present and argue her case fully and completely with the need to protect the confidentiality of standardized tests so that they can be used in future competitions.  With this in mind I will turn to each of the three issues.

 

 

The simple fact that an aggrieved party may not accept the validity of a decision of this sort, and can identify arguable deficiencies in the logic or analysis applied to the problem, is no basis for concluding that the decision was based on discriminatory grounds. I, therefore, find that Ms. Gupta’s allegation of discrimination is wholly without merit.

 

[26]           Ms. Gupta also asserts that the Commission’s treatment of disclosure to Dr. Ayangma and the Board’s acceptance of that position were inconsistent with the approach that had been taken to her earlier representative, Mr. Janz. She argues that the potential that Mr. Janz might obtain a career advantage through access to the test materials was equivalent (if not greater) to the potential advantage accruing to Dr. Ayangma. That, of course, is not what the Board found. The Board held that Mr. Janz’s position was different than that of Dr. Ayangma. Mr. Janz was employed as a kitchen supervisor and it was entirely reasonable for the Board to conclude that he would not reasonably aspire to a management position requiring the administration of one of the subject simulation tests. The Board’s finding that the risk of Mr. Janz obtaining a future advantage was virtually non existent is a reasonable conclusion on the evidence before it and is not a basis for judicial interference.

 

[27]           Ms. Gupta also argues that the restrictions placed on Dr. Ayangma were unreasonable because he, too, was unlikely to gain any future career advantage through exposure to the test materials. On this issue, the Board also came to a contrary conclusion. With respect to Dr. Ayangma, the Board held at paragraph 36:

In my view the department’s decision to follow Dr. Forster’s advice was reasonable.  Although Dr. Ayangma is alleging that refusal to provide him access amounted to differential treatment, it is clear from the evidence that he would have been a logical contender for positions at senior levels of the PM group and perhaps other groups in the Administrative and Foreign Service category, the very levels for which the test could be administered, depending on the nature of the duties.  Contrary to Dr. Ayangma’s contention during the teleconference of October 25, 2005, there was nothing in his written response to Dr. Forster that suggested that he would rule out applying for positions at those levels.  If he were to apply for such positions after having received access to all the test materials having kept notes of those materials for the purposes of presenting an appeal, there was a reasonable probability that this would have enabled him to remember the nature of the test to a significant enough degree to affect the results of the 428 test by giving him an unfair advantage, were he to apply for such a position and take the 428 test.

 

 

Ms. Gupta says that this finding is perverse.  She argues that Dr. Ayangma’s written responses to the Commission’s questions about his future Public Service aspirations were unequivocal in negating the possibility that he would ever seek a position for which one of the subject tests would be required. On this issue, it is important to examine Dr. Ayangma’s answers to the questions posed to him by the Commission:

Q.:       Are you currently a federal public servant?

 

A.:       I am not a public servant at this time.

 

Q.:       If not, have you ever been a federal public servant?  If so, what is your position (including classification and level)?

 

A.:       My most recent position was Regional Program Manager (PM-05).

 

Q.:       How long were you in that position?

 

A.:       I was in this position for 18 months.

 

Q.:       When did your employment in the federal public service terminate?

 

A.:       My employment in the federal public service terminated in 2004.

 

Q.:       Have you applied for any positions in the federal public service since then?

 

A.:       No I did not apply for any positions in the federal public service since then.

 

Q.:       Do you have aspirations to work in the federal public service in the foreseeable future?

 

A.:       I do not know (Maybe at the executive level or with the Union).

 

Q.:       If the answer to the above question is “no”, can you rule out the possibility that you would apply for a position in the federal public service in the foreseeable future?

 

A.:       Maybe it depends on the type of job and the level of position.

 

[Emphasis added]

 

 

[28]           It is simply not correct that Dr. Ayangma’s answers were necessarily sufficient to afford comfort to the Commission or to the Board that there was no possibility that he would seek a Public Service position which would require the application of one of the subject simulation tests.  The Board had evidence before it that the types of positions that Dr. Ayangma was not prepared to exclude for future consideration might well require that he submit to one of the subject tests. Dr. Ayangma’s answers, therefore, do not rule out the risk of possible advantage and, in any event, the Board’s finding on this point is entitled to deference because there is an evidentiary basis to support it. 

 

[29]           With respect to Ms. Gupta’s contention that Dr. Ayangma was the only person subjected to questioning by the Commission, I would point out that this application does not involve an examination of the Commission’s practices but only a review of the findings of the Board.  The Board’s mandate was to consider the circumstances of Ms. Gupta and her representative, Dr. Ayangma, and to decide what, if any, disclosure conditions were appropriate in her case.  It was open to the Board to disagree with the Commission and to establish its own disclosure criteria.  What the Commission may or may not have done in other situations was not relevant to the Board’s mandate in this case.  Even at that, the Record discloses that the Commission did question Mr. Janz.  In an e-mail response to a question posed by Dr. Ayangma the Commission advised him as follows:

The test was disclosed to Frank Janz because we determined that there was a negligible risk that Mr. Janz would ever take a test such as the 425 or 428.  The leap from Mr. Janz’s current position to an officer – or supervisor – level PM or similar position is considerably different from that of Dr. Ayangma’s most recent position in the federal government.  I asked Mr. Janz effectively the same questions as I asked Dr. Ayangma.  He career aspirations were taken into consideration, as was his current position and the kinds of positions (if any) he was likely to apply for within the public service in the near future.  Ultimately, while Dr. Ayangma could not rule out applying for a position for which the 425 or 428 might be used, Mr. Janz did rule that out to my satisfaction.

 

 

[30]           Ms. Gupta’s similar complaint that the selection board members were in no different a position than Mr. Ayangma fails for the same reason.  How the Commission chose to manage the selection process and to guard against a risk of advantage to members of the selection board was not an issue before the Board.  Furthermore, the Board’s finding that access by selection board members to the confidential test materials was essentially an unavoidable risk created by their participation in the selection process is a reasonable distinction to draw.

 

[31]           Ms. Gupta has argued that because Dr. Ayangma is not presently employed in the Public Service he is effectively exempt from the confidentially rules.  In support of this contention she relies upon a statement from the Gill decision indicating that “disclosure of all pertinent confidential test materials to a representative who is not employed in the Public Service” would satisfy the Commission’s concerns (see para. 22).  In my respectful view, this argument is based upon an over-reading of the above passage from Gill.  Justice Rouleau’s decision begins with a general recognition that the issue is one of possible advantage to a candidate or to her representative – a concern which will often, but not inevitably, be satisfied by choosing someone from outside of the Public Service.  Here, the Board concluded that because of Dr. Ayangma’s recent management employment with the Public Service and his equivocal position regarding re-employment, there remained a possibility that he would benefit from exposure to the full range of test materials. 

 

[32]           The Board’s approach to the issue of Dr. Ayangma’s employment status was correct when it held that Justice Rouleau’s statement from Gill “could not reasonably be interpreted to mean that every person who is not employed in the public service would be suitable as a representative to whom such documents may be disclosure.  The risk to the integrity of the test of providing access to such material will vary from person to person depending on many factors”.

 

[33]           Ms. Gupta expressed a strong concern with the Board’s suggestion that she can appoint a different representative whose career aspirations will not be in conflict with the Commission’s confidentiality concerns.  She says that Dr. Ayangma is the only person who can properly represent her interests in reviewing the confidential test materials. 

 

[34]           There is nothing about the Board’s observation about a substitute representative which is troubling.  In the balancing of competing interests such as those arising in this case, it is entirely appropriate to consider the relative ease by which the concerns of one party or the other can be accommodated by adjustments to the process.  While Ms. Gupta’s faith in Dr. Ayangma is undoubtedly well-founded, I do not accept that he is the only person available and sufficiently qualified to effectively represent her in assessing and reporting on the reliability of the testing data.  Ms. Gupta has offered no evidence that she has been unable to find an individual with skills equal to those of Dr. Ayangma and it is a reasonable inference that she has not yet looked. 

 

Conclusion

[35]           All of the Board’s conclusions are supported by its interpretation of the evidence.  The question for me is not whether I would have come to a different decision on the basis of this evidence, but whether the Board’s conclusions are reasonable.  An unreasonable decision is one where there is no line of analysis within the given reason that could reasonably lead the decision-maker from the evidence before it to the conclusion it reached:  see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247; 2003 SCC 20 at para. 55.  I am not able to make that finding in this case.  Indeed, the Board’s decision is correct in its legal analysis and thoughtful and persuasive in its assessment of the evidence.  In short, this is the kind of a decision which is entitled to deference on judicial review and I decline to set it aside. 

 

[36]           At the conclusion of argument, Ms. Gupta asked for costs in the amount of $3,000.00 payable forthwith.  In the circumstances, I will award costs to the Respondent in the amount of $2,000.00 inclusive of disbursements payable forthwith. 

 

JUDGMENT

            THIS COURT ADJUDGES that this application for judicial review is dismissed. 

 

THIS COURT FURTHER ADJUDGES that costs are payable forthwith to the Respondent in the amount of $2,000.00 inclusive of disbursements. 

 

 

 

"R. L. Barnes"

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-2171-05

 

STYLE OF CAUSE:                          KALPANA GUPTA v. THE QUEEN

 

 

 

 

PLACE OF HEARING:                    Winnipeg, MB

 

DATE OF HEARING:                      September 11, 2006

 

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    BARNES, J.

 

DATED:                                             October 24, 2006

 

 

 

APPEARANCES:

 

Ms. Kalpana Gupta	FOR THE APPLICANT(S)
Mr. Sid Restall	FOR THE RESPONDENT(S)

 

SOLICITORS OF RECORD:

 

(not applicable)	FOR THE APPLICANT(S)
John Sims Q.C. Deputy Attorney General of Canada Ottawa, Ontario	FOR THE RESPONDENT(S)