Federal Court of Appeal Decisions

                                                                 Date: 20020529

                                                          Docket: A-177-01

                                                              (T-2280-99)

                                           Neutral citation:2002 FCA 224

CORAM:      STRAYER J.A.

ISAAC J.A.

SEXTON J.A.

B E T W E E N:

                             CARMEL GIROUARD

                                                                Appellant

                                   and

                   THE ATTORNEY GENERAL OF CANADA and

                              M.H.F. GILBERT

                                                               Respondent

Heard at Ottawa, Ontario on Thursday, April 11, 2002

JUDGMENT delivered at Ottawa, Ontario on Wednesday, May 29, 2002

REASONS FOR JUDGMENT BY:                                               STRAYER J.A.

CONCURRED IN BY:                                                          ISAAC J.A.

                                                                         SEXTON J.A.

                                                                                                                                            Date: 20020529

                                                                                                                                        Docket: A-177-01

                                                                                                                                                    (T-2280-99)

                                                                                                                Neutral citation: 2002 FCA 224

CORAM:        STRAYER J.A.

ISAAC J.A.

SEXTON J.A.

BETWEEN:

                                                              CARMEL GIROUARD

                                                                                                                                                       Appellant

                                                                                 and

                                       THE ATTORNEY GENERAL OF CANADA and

                                                                    M.H.F. GILBERT

                                                                                                                                                   Respondent

                                                        REASONS FOR JUDGMENT

STRAYER J.A.

Introduction

[1]                 This case involves the proper criteria to be applied by an appeal board hearing an appeal under section 21 of the Public Service Employment Act (R.S.C. 1985, c. P-33) by an unsuccessful candidate against an appointment of someone else to a position in the Public Service of Canada.

Facts

[2]                 The Royal Canadian Mounted Police ("the RCMP") held a closed competition to staff a position of Official Languages Coordinator in Fredericton, New Brunswick. Six persons applied, among them the appellant and the second respondent herein. They were advised that among the selection tools to be used by the selection board would be the Public Service Commission Supervisor Simulation Exercise 428. The test was to be used to assess candidates on one group of qualifications established for appointment to the position. These qualifications were described as follows:

Abilities and Skills:

Ability to communicate orally and in writing.

Ability to manage human and financial resources.

Ability to identify problems and give recommendations.

Ability to achieve expected results through the timely completion of activities.

  

[3]                 Prior to the test being administered to her the appellant, Carmel Girouard, submitted to the Human Resources Advisor of the RCMP a letter from her psychologist. While making it clear that he had not yet conducted a comprehensive psychological assessment of her as she had requested but had put her on his "waiting list", he said that he had obtained some "preliminary information from her". This information suggested that she was slow in processing "novel information". He was aware that the test she was to take was a timed test (the time being fixed at two and one-half hours). He said that from the information available to him she should not have any time limit but if there were to be one it should be at least twice that of the normal test. This information was considered by the Personnel Psychology Centre of the Public Service Commission (PSC) and on the advice of that Centre the RCMP proposed to accommodate the appellant by allowing her 50% more time for the test, including two ten minute breaks. The Centre in its written explanation for its recommendations assumed that the appellant might suffer from Attention Deficit Disorder ("ADD") although recognizing that this diagnosis had not been confirmed. The Centre also observed that the nature of the position to be filled was such as to involve dealing with urgent matters and in its view an increase of more than 50% in the time for the test would not "respect the bona fide requirements of the job".

[4]                 The appellant took the PSC 428 test and did not receive a passing mark in respect of "abilities and skills". She was therefore unsuccessful in the competition and the second respondent herein, M.H.F. Gilbert, was placed on the eligibility list for appointment.

[5]                 The appellant then brought an appeal under section 21 under the Public Service Employment Act in respect of the appointment of Gilbert. The relevant part of that section is as follows:

21.(1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.		21.(1) Dans le cas d'une nomination, effective ou imminente, consécutive à 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.

[6]                 The reasons of the appeal board, after a lengthy recitation of the evidence and submissions, concluded that

the timed nature of the PSC Supervisor Simulation 428 comprised a prima facie discriminatory standard which in her case required accommodation. The issue to be determined, then, is whether the accommodation offered by the selection board through the Personnel Psychology Centre was reasonable. (AB page 74).

Having reached this conclusion the Chairwoman then adopted the analysis of the Supreme Court of Canada, issued only two months before her decision, in BCGSEU v. British Columbia ("the Meiorin case") ([1999] 3 S.C.R. 3), a case involving the application of the British Columbia Human Rights Code (R.S.B.C. 1996, c. 210) in which it was said that once a prima facie case of discrimination is established the onus is on the employer to show that the employment standard which denied the complainant her job was for a purpose rationally connected to the performance of the job, adopted in an honest and good faith belief that it was necessary for legitimate work related purposes, and was in fact reasonably necessary. It may be noted that this case and these criteria were not argued before the board. The chairwoman however concluded that the selection board of the RCMP had not met this onus of proving that the Supervisor Simulation Exercise 428 was a "bona fide occupational requirement". She therefore allowed the appeal and sent the matter back to the selection board to give

renewed consideration to accommodating the appellant's disability when re-assessing the candidates for their abilities and skills in this competition. (AB page 77).

The Attorney General of Canada on behalf of the RCMP sought judicial review of the decision of the appeal board.. The applicant raised two issues: (1) whether the appeal board applied the correct legal test to determine whether the merit principle was observed in the appointment; and (2) whether the principles of natural justice were violated by the "bona fide occupational requirement" test being used by the chairwoman without the applicant having had a reasonable opportunity to address that issue.

[7]                 In his analysis the applications judge began with the proposition that the appeal board role under section 21 is to determine whether the merit principle has been respected in the appointment in question, relying on the clear requirements of sections 10 and 12 of the Public Service Employment Act that appointments are to be made according to merit. He cited authority from this Court for the proposition that on a section 21 appeal the board is not to reassess the candidates but is to determine whether the appointment in question accorded with the merit principle. In his view the appeal board had erred in applying tests and presumptions and onuses established in jurisprudence pertaining to the application of human rights legislation (the Meiorin case being an example of that). He said that the focus in a section 21 appeal should be on the merit principle and while recognizing that some accommodation would be required for a disabled person, the adequacy and propriety of such accommodation would have to be examined in the context of the merit principle. He suggested some questions which would have been appropriate for the board to consider and I will return to these later. He also concluded that there had been a denial of fairness to the applicant Attorney General by the appeal board in that the Meiorin case and its reverse onus was applied to this situation without any prior notice to the respondent that this was in contemplation. Consequently he granted the application for judicial review, and sent the matter back to a differently constituted appeal board for a redetermination consistent with his reasons.

[8]                 In this appeal the appellant says that the essential issue is:

the extent to which human rights principles such as the duty to accommodate or bona fide occupational requirements must be applied by appeal boards when considering whether a person was fully and fairly assessed in a selection process in the Federal Public Service. (Appellant's Memorandum, para. 30).

The appellant says that an appeal board must consider such principles and, if it is not able to, the merit principle "would be rendered a hollow pronouncement insofar as persons with disabilities . . . are concerned".(Ibid).

Analysis

[9]                 As an initial point of clarification I understand the general references to "human rights principles" to mean the statutory provisions which are generally known as Human Rights Acts and the jurisprudence interpreting such legislation. That is certainly the context in which the appellant seeks to have her proceeding under the Public Service Employment Act governed by her interpretation of the requirements of the Canadian Human Rights Act.

[10]            It remains a fact, however, that the Public Service Employment Act provides a special regime for those employed in a variety of positions by the Government of Canada. That Act long preceded the advent of the Canadian Human Rights Act and it has for many decades been designed to foster the principle of merit in public service appointments.

[11]            It is clear from the Canadian Human Rights Act as first adopted in 1976 that it was not intended to supercede other forms of redress available within the federal jurisdiction in respect of acts or practices that might also fall within the Canadian Human Rights Act. For example, paragraphs 41(1)(a) and (b) of the Canadian Human Rights Act provide as follows:

41.(1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that (a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available; (b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act; . . . .		41.(1) Sous réserve de l'article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants : a) la victime présumée de l'acte discriminatoire devrait épuiser d'abord les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts; b) la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale; . . . .

It has been recognized, for example, that at the very least the Canadian Human Rights Commission can decline to deal with a complaint until the subject-matter had been dealt with in proceedings under the Public Service Staff Relations Act (Burke v. Canada (1987) 125 N.R. 239 (F.C.A.)). See also Canada v. Racicot ([1997] F.C.J. No. 838 (F.C.T.D.)). In fact no complaint has been filed by the appellant or on her behalf with the Canadian Human Rights Commission.

[12]            An appeal under section 21 under the Public Service Employment Act is, as mentioned earlier, an appeal by an unsuccessful candidate against the appointment of someone else, and it is an appeal whose focus is the enforcement of the fundamental principle of that Act that appointments ought to be made on the basis of merit. It is not, per se, to protect the rights of the appellant. This has been confirmed by this Court on various occasions (see e.g. Charest v. A.G. of Canada et al [1973] F.C. 1217 at 1221; Blagdon v Public Service Commission et al [1976] 1 F.C. 615 at 623). The onus remains on the appellant to demonstrate that the appointment was not made on the basis of merit. Indeed the Generic Standards for Selection and Assessment adopted by the Public Service Commission Section 1:3 which both the appellant (appellant's factum, para. 35) and the appeal board (A.B. p. 67) both endorse, state in part that

In all cases, the use of different assessment methods or sources of information for different candidates must be justified on the basis that such differential usage provides for a more accurate assessment and that the information gathered from these different methods or sources is comparable. (II Joint Book of Authorities, tab 45)

This if anything creates a presumption against different methods of assessment for different candidates. The focus on protecting the merit principle is manifest.

[13]            As a practical matter the respondent department may have to show that if it did take steps to accommodate one or more candidates, such accommodation was not only reasonable in relation to the nature of the needs of those candidates but also was not such as to be unfair to other candidates. Such debate as there may well be over the accommodation made, or not made, is all within the context of determining whether merit was compromised. I respectfully agree with the application judge's example of questions which should be considered in these circumstances:

(1)           Was the extra time allotted appropriate given the nature of the job?

(2)           Was the extra time fair to the other candidates?

(3)           Would Girouard's disability mean more time was needed by her?

(4)           Was extra time appropriate given the nature of the test?

The appeal board should have focussed on considerations such as these.

[14]            Instead the appeal board found its inspiration in a Supreme Court interpretation of a provincial human rights Act. That case was far removed from the issues before the appeal board. In the Meiorin case the gravamen of the complaint was that the complainant had been discriminated against by the adoption of a qualification standard that would tend to exclude women from employment as fire fighters, thus constituting prima facie evidence of discrimination. In the present case the appellant was not per se complaining about discrimination against herself but was complaining that another person had been appointed to a position in a manner inconsistent with the merit principle. This could not be said to create prima facie proof of discrimination. Further, unlike Meiorin there was no discriminatory standard in question here; only an allegation that the method of testing (established, as far as the evidence shows, in good faith) for qualifications, whose legitimacy was not in dispute, was not appropriately linked to merit. The determination of that issue requires careful consideration of the problem, the evidence (such as it was) of the appellant's possible disability, the nature of the test and its relationship to the requirements of the job, together with considerations of fairness to the other candidates.

[15]            Before leaving this aspect of the case I wish to observe that this case has now proceeded through three tribunals and is not yet over, all on an assumption as to the nature and degree of the appellant's disability. Her psychologist ventured an opinion by letter without having completed an assessment. The Personnel Psychology Centre of the respondent seems to have accepted this opinion as a fact, even assuming it to be the diagnosis of ADD. Not surprisingly the appeal board proceeded on these assumptions of the parties. While I am in no position to suggest that these assumptions were factually incorrect, it does not appear to me to be appropriate for the matter to have proceeded this far without a thorough assessment of the appellant's condition being part of the record, an assessment whose details could well have had an important bearing on the question of whether the test administered was reasonable.

Conclusion and Disposition

[16]            For these reasons I would dismiss the appeal with costs and confirm that the matter should be sent back to a differently constituted appeal board for determination in a manner consistent with these reasons.

    

                                                                                                                                          (s) "B.L. Strayer"           

J.A.

I agree

"Julius A. Isaac"

I agree

"J. Edgar Sexton"