BETWEEN:
and
LYNNE LAJOIE and SUSAN MCKENZIE
Heard at Ottawa, Ontario, on May 2, 2007.
Judgment delivered at Ottawa, Ontario, on May 18, 2007.
REASONS FOR JUDGMENT BY: SEXTON J.A.
CONCURRED IN BY: LINDEN J.A.
RYER J.A.
Docket: A-439-06
Citation: 2007 FCA 197
CORAM: LINDEN J.A.
SEXTON J.A.
RYER J.A.
BETWEEN:
DALE MCGREGOR
Appellant
and
ATTORNEY GENERAL OF CANADA,
LYNNE LAJOIE and SUSAN MCKENZIE
Respondents
REASONS FOR JUDGMENT
[1] Dale McGregor unsuccessfully participated in a closed competition to staff vacancies within Correctional Service Canada (the “Department”). His subsequent appeals against the selections made for appointment to the Public Service Commission of Canada Appeal Board (the “Appeal Board”) pursuant to section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (“PSEA”) were dismissed. Justice von Finckenstein of the Federal Court likewise dismissed Mr. McGregor’s application for judicial review of the Appeal Board’s decision, as set out in Dale McGregor v. Attorney General of Canada et al., 2006 FC 1193.
[2] Mr. McGregor now appeals to this Court. He maintains that Justice von Finckenstein and the Appeal Board erroneously concluded that the appellant in an appeal under section 21 of the PSEA has the onus of impeaching the selection process. Moreover, he maintains that there was an insufficient evidentiary framework on which the Appeal Board could have reached its conclusions.
[3] For the reasons that follow, I would dismiss the appeal.
BACKGROUND
[4] Mr. McGregor took part in a closed competition held by Correctional Service Canada for the position of Regional Administrator, Human Resources (PE-06) in the Pacific and Ontario Regions. These competitions followed an appeal by Mr. McGregor regarding a previous competition to staff the same position in the Pacific Region. Candidates possessing the requisite education and experience were assessed by a selection board (the “Selection Board”) through a written exam, which tested their knowledge qualifications, and a simulation and structured interview process, which was used to evaluate abilities and personal suitability qualifications. Reference checks were also conducted to verify information regarding personal suitability.
[5] Mr. McGregor did not pass the knowledge exam. He therefore did not participate in the other elements of the assessment process and was not considered for the positions.
[6] Mr. McGregor subsequently appealed to the Appeal Board against the selections made for appointments pursuant to section 21 of the PSEA.
DECISIONS BELOW
1) Decision of the Appeal Board
[7] Before the Appeal Board, Mr. McGregor alleged that one of the successful candidates did not meet the education requirement for the positions. He also argued that the successful candidates had an undue advantage in the competition because they had been given acting assignments to positions classified as or equivalent to PE-06 before and after the initial competition, which was the subject of Mr. McGregor’s earlier appeal. Finally, Mr. McGregor submitted that there were numerous inconsistencies in the conduct of the competition, essentially arguing that the Selection Board failed to demonstrate an adequate evidentiary framework to establish that the most meritorious candidates were chosen.
[8] The Appeal Board rejected all of Mr. McGregor’s allegations. It found no basis for intervention on account of Mr. McGregor’s suggestion that the successful candidates did not meet the education requirement or enjoyed an unfair advantage in the selection process. Likewise, the Appeal Board found nothing inappropriate about the conduct of the selection process. It held that the onus was on Mr. McGregor to demonstrate that the merit principle was not respected by the Selection Board. In the Appeal Board’s view, Mr. McGregor failed to satisfy this onus. Consequently, Mr. McGregor’s appeals were dismissed.
2) Decision of von Finckenstein J.
[9] Mr. McGregor sought judicial review of the Appeal Board decision in the Federal Court. Before von Finckenstein J., Mr. McGregor argued that the Appeal Board had erred in two respects. First, he submitted that the Appeal Board erred in placing the primary onus on Mr. McGregor to adduce evidence in support of his allegations. Second, Mr. McGregor maintained that the Appeal Board erred in finding that the Selection Board had demonstrated an appropriate evidentiary framework to support its evaluations. Justice von Finckenstein rejected both grounds of review.
[10] Justice von Finckenstein stressed that the appeal process under the PSEA is an adversary one in which the appellant has the onus of establishing a real possibility that the merit principle was not respected. In his view, only when the appellant has satisfied this onus does the onus shift to the selection board to establish an evidentiary framework for its evaluations. Reviewing Mr. McGregor’s allegations that there were inconsistencies in the marking of the knowledge exam, von Finckenstein J. could find no error in the Appeal Board’s conclusion that Mr. McGregor failed to satisfy his onus of demonstrating these inconsistencies.
[11] In view of this conclusion, von Finckenstein J. found it unnecessary to consider Mr. McGregor’s submission that the Selection Board failed to provide cogent evidence to support its assessment of the candidates’ abilities and personal suitability characteristics. Mr. McGregor argued before von Finckenstein J. that because the only witness called by the Department could not provide specifics as to how the candidates’ abilities and personal suitability characteristics were evaluated, it was impossible for him to challenge the consistency or appropriateness of the marks awarded. Justice von Finckenstein noted, however, that Mr. McGregor failed the knowledge test and therefore was not assessed for his abilities and personal suitability. Having found that the Appeal Board did not err with regard to its findings on the knowledge element, von Finckenstein J. concluded that there was no need for him to consider Mr. McGregor’s allegations regarding the other two elements on which Mr. McGregor was not tested. Accordingly, von Finckenstein J. dismissed the application for judicial review.
ISSUES
[12] This appeal raises three broad issues:
1. Which party has the burden of proof in an appeal under section 21 of the PSEA?
2. Did von Finckenstein J. err in refusing to consider Mr. McGregor’s allegation that the Selection Board did not respect the merit principle in the manner in which it assessed the abilities and personal suitability of the candidates?
3. Was it reasonable for the Appeal Board to conclude that Mr. McGregor had not demonstrated that there was a real likelihood that the merit principle was not respected in the selection process?
STANDARD OF REVIEW
1) Review of the Appeal Board’s Decision
[13] There is no dispute between the parties as to the appropriate standard of review to apply to the Appeal Board’s decision. They both correctly identified that the Appeal Board’s decisions on questions of law are reviewable on a standard of correctness: Boucher v. Canada (Attorney General), [2000] F.C.J. No. 86 at paragraph 7 (F.C.A.), Buttar v. Canada (Attorney General), [2000] F.C.J. No. 437 at paragraph 17 (F.C.A.). The decision as to which party has the burden of proof in the proceedings is a matter of law.
[14] Conversely, the standard of review to be applied to questions of mixed fact and law, such as whether the Appeal Board’s conclusions are supported by the evidence, is reasonableness: Chopra v. Canada (Attorney General), 2005 FCA 374 at paragraph 3, Davies v. Canada (Attorney General), 2005 FCA 41 at paragraph 23.
2) Review of von Finckenstein J.’s Decision
[15] Standards of appellate review are guided by the nature of the questions at issue. Questions of law are generally reviewable on a standard of correctness: Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at paragraph 8 (“Housen”). Findings of fact are reviewed against a standard of palpable and overriding error: Housen at paragraph 10. The standard of palpable and overriding error also applies to questions of mixed fact and law, unless the lower court judge made an extricable error of law, in which case a standard of correctness applies: Housen at paragraph 37.
ANALYSIS
1) Burden of Proof
[16] Mr. McGregor submits that an appeal to the Appeal Board under section 21 of the PSEA differs from other quasi-judicial appeals. He emphasizes that the process called for under subsection 21(1) is an “inquiry.” In his view, this inquiry is not aimed at protecting an appellant’s rights, but instead at ensuring that the “merit principle,” which requires that the best persons possible will be found for the positions, has been respected. Consequently, Mr. McGregor maintains that the hiring department has the onus of proof. Only after the hiring department has established a sufficient evidentiary framework to warrant a finding by the Appeal Board that the merit principle has been respected, he says, will the burden shift to the appellant to demonstrate that there was a real possibility that the best candidates were not appointed.
[17] I cannot agree. In my view, the Appeal Board and Justice von Finckenstein were correct to hold that the burden of proof lies with the appellant in an inquiry under section 21 of the PSEA. Mr. McGregor has not satisfied me that the PSEA mandates a departure from the usual course, in which the party raising an allegation has the burden of proving it. This principle is described in Hodge M. Malek et al., eds, Phipson on Evidence, 16th ed. (London: Sweet & Maxwell, 2005) at paragraph 6-06 (“Phipson on Evidence”):
So far as the persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts the affirmative of the issue. If, when all the evidence is adduced by all parties, the party who has this burden has not discharged it, the decision must be against him. It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons.
This rule is adopted principally because it is just that he who invokes the aid of the law should be the first to prove his case…
[18] The jurisprudence of this Court confirms that the appellant in a section 21 proceeding has the burden of proof. In Weibe v. Canada, [1992] 2 F.C. 592 at page 595 (F.C.A.) (“Weibe”), this Court clarified that proceedings under section 21 of the PSEA are adversarial:
Proceedings under section 21, though styled an “inquiry”, are very much adversarial in nature, with the applicant and the employer each being on opposite sides of the question and each generally being represented by persons experienced in this specialized type of dispute.
[19] More specifically, this Court explained in Blagdon v. Canada (Public Service Commission, Appeals Board), [1976] 1 F.C. 615 at page 618 (F.C.A.) (“Blagdon”), that in a section 21 proceeding, the onus is on the appellant to satisfy the Appeal Board that the merit principle was not followed by the selection board:
On such an appeal -- which, it should be noted, is not an appeal from the findings of a Selection Board but rather an appeal against the appointment or proposed appointment of a successful candidate -- the essential question for the Appeal Board is whether the selection of the successful candidate has been made in accordance with the merit principle. An unsuccessful candidate, appealing against the appointment or proposed appointment of the successful candidate, is entitled to show, if he can, reasons for thinking that the merit principle has not been honoured, and in that context the applicant, on his appeal, was entitled to show, if he could, that the Selection Board's opinion that he did not have a good safety record was without foundation.
[20] Likewise, in Leckie v. Canada, [1993] 2 F.C. 473 at page 481 (F.C.A.) (“Leckie”), Justice Décary elaborated that the appellant bears the burden of showing that there is a “real possibility or likelihood” that the most meritorious person was not selected:
In order to succeed under section 21 in establishing that the merit principle had been offended, the applicants had to convince the Appeal Board that the method of selection chosen was “such that there could be some doubt as to its fitness to determine the merit of candidates” i.e. as to its fitness to determine whether “the best persons possible” were found. An appeal board's main duty being to satisfy itself that the best persons possible were appointed, it goes without saying that an appellant, before even embarking on a challenge to the method of selection chosen, should at least allege (and eventually demonstrate) that there was a real possibility or likelihood that the best persons possible were not appointed.
[21] Similarly, in Kaczmar v. Canada (Revenue), [1999] F.C.J. No. 1189 at paragraph 13 (F.C.T.D.), Justice Pelletier reiterated that a section 21 inquiry is an adversarial proceeding, in which the appellant’s task is to persuade the Appeal Board.
[22] Mr. McGregor submits that several cases in the Federal Court stand for the proposition that the selection board, not the appellant, bears the burden of proof in a section 21 appeal. I am not persuaded, however, that the cases on which Mr. McGregor relies mandate a departure from the conclusions set out above. In particular, Mr. McGregor points to the following passage in Field v. Canada (Attorney General), [1995] F.C.J. No. 458 at paragraph 5 (F.C.T.D.) (“Field”) for the proposition that the selection board has the initial onus of satisfying the Appeal Board that the merit principle was respected:
In the present case, there was an absence of any cogent evidence, either oral or documentary, in the record to establish the manner in which the merit of the candidates was assessed by the Selection Board on the qualification of personal suitability. In the absence of an appropriate evidentiary framework, the Appeal Board could not have properly determined that the merit principle was respected in the assessment of the candidates on personal suitability. Furthermore, the Appeal Board purported to place on the applicant the obligation to adduce evidence to establish that her personal qualities “...should have been rated any differently than the personal qualities of the selected candidate.” In doing so, the Appeal Board improperly relieved the Selection Board of its onus of establishing that the assessment of the candidates was conducted in accordance with the merit principle.
[23] Although at first blush this passage appears to support Mr. McGregor’s position, a careful reading of the entirety of McGillis J.’s Reasons in Field suggests that the decision is not inconsistent with the decisions of this Court in Blagdon and Leckie. Although Justice McGillis’s Reasons are brief, and therefore do not explain in detail the procedure followed at the Appeal Board hearing, it appears that at the hearing, the appellant presented her case first and satisfied the Appeal Board “that the manner in which the Selection Board assessed the personal suitability of the candidates breached the merit principle” (Field at paragraph 2). Thus, it may be that in the passage quoted above, the “onus” to which Justice McGillis was referring was a tactical one. If she was saying that the burden of proof lay upon the selection board, however, I do not agree.
[24] Mr. McGregor also relies on Canada (Attorney General) v. Jeethan, 2006 FC 135 (“Jeethan”) and Go v. Canada (Attorney General), 2004 FC 471 (“Go”), two decisions in which the Federal Court cited Field and referred to an onus on the selection board to establish that the selection for appointment was made in accordance with the merit principle. Reading these decisions, it is not immediately clear whether Jeethan and Go stand for the proposition that the selection board has the onus of proof, or whether they merely acknowledge the fact that the selection board as a tactical matter has an onus to disprove the appellant’s case. However, in light of this Court’s decisions in such cases as Blagdon, Leckie and Weibe, and the pragmatic considerations canvassed below, the latter interpretation must be adopted.
[25] Indeed, it is difficult to imagine how a case could proceed effectively if the selection board were charged with the burden of satisfying the Appeal Board that the merit principle had been respected during the competition. To make its case, the selection board would, without having heard any evidence of the appellant, have to call all the evidence that could conceivably respond to the appellant’s allegations as to how the merit principle was not observed. It would have to go into extensive detail about each aspect of the process, calling all witnesses with any potentially relevant information, and adducing all documents that might shed some light on the procedure adopted and the decisions made by the selection board. Such a process is not called for by the PSEA, nor would it be feasible.
[26] As mentioned above, the party who invokes the aid of the law must be the first to prove his case. While this often amounts to asserting an affirmative position, this is not always the case. The party invoking the aid of the law may be asserting a negative position, such as Mr. McGregor is doing in the present case. This does not change the burden of proof. It still lies upon the appellant. As stated in Phipson on Evidence at paragraph 6-06:
In deciding which party asserts the affirmative, regard must be had to the substance of the issue and not merely to its grammatical form; the latter the pleader can frequently vary at will. Moreover, a negative allegation must not be confused with the mere traverse of an affirmative one. The true meaning of the rule is that where a given allegation, whether affirmative or negative, forms an essential part of a party’s case, the proof of such allegation rests on him. An alternative test, in this connection, is to strike out of the record the particular allegation in question, the onus lying upon the party who would fail if such a course were pursued.
[Emphasis added.]
[27] For a section 21 appeal to be feasible, the appellant must direct his evidence to the particular elements of the selection process which he believes involved a departure from the merit principle. As the strength of the appellant’s case grows, the hiring department will develop what may be referred to as a “tactical burden” to adduce evidence to refute the evidence on which the appellant relies, for fear of an adverse ruling. However, this tactical burden does not arise as a matter of law, but as a matter of common sense. Throughout, the legal and evidential burden of convincing the Appeal Board that the selection board failed to respect the merit principle rests with the appellant: see John Sopinka et al., The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999) at §§ 3.47-3.48.
[28] The fact that inquiries under section 21 are designed to ensure the merit principle was respected does not warrant a transfer of the onus from the appellant to the respondent. Mr. McGregor fastens on a statement by this Court in Charest v. Attorney General of Canada, [1973] F.C. 1217 at page 1221, wherein it stated that an appeal under section 21 “is not to protect the appellant’s rights, it is to prevent an appointment being made contrary to the merit principle.” According to Mr. McGregor, this purpose warrants a shifting of the burden of proof to the hiring department to establish that the merit principle was respected. I disagree.
[29] As canvassed above, it is not feasible to have the selection board prove in each case that the process employed followed the merit principle in all respects. This factor remains whether or not section 21 has a broader public interest purpose of ensuring that the merit principle is respected throughout the Public Service. It is not in the public interest to divert extensive resources to disprove allegations which cannot be substantiated. In any event, only unsuccessful candidates are given standing to appeal under section 21. The appeal process thus allows them to satisfy themselves that the selection process in which they participated respected the merit principle. To suggest that there is a wider public purpose to the appeal process that warrants a transfer of the burden of proof to the hiring department, in my view, puts the matter too broadly.
[30] To aid an appellant in satisfying his burden of proof, section 26 of the Public Service Employment Regulations, 2000, SOR/2000-80 (“PSER”) gives the appellant extensive rights to disclosure of relevant information:
|
26. (1) An appellant shall be provided access, on request, to any information, or any document that contains information, that pertains to the appellant or to the successful candidate and that may be presented before the appeal board.
(2) The deputy head concerned shall provide the appellant, on request, with a copy of any document referred to in subsection (1).
(3) Despite subsections (1) and (2), the deputy head concerned or the Commission, as appropriate, may refuse to allow access to information or a document, or to provide a copy of a document, if the disclosure might
(a) threaten national security or any person’s safety;
(b) prejudice the continued use of a standardized test that is owned by the deputy head’s department or the Commission or that is commercially available; or
(c) affect the results of such a standardized test by giving an unfair advantage to any individual.
(4) If the deputy head concerned or the Commission refuses to allow access to information or a document under subsection (3), the appellant may request that the appeal board order such access.
(5) If the appeal board orders access to information or a document under subsection (4), that access is subject, before and during the hearing, to any conditions that the appeal board considers necessary to prevent the situations described in paragraph 3(a) to (c) from occurring.
(6) Any information or document obtained under this section shall be used only for purposes of the appeal. |
26. (1) L'appelant a accès sur demande à l'information, notamment tout document, le concernant ou concernant le candidat reçu et qui est susceptible d'être communiquée 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 ou la Commission peut refuser de donner accès à l'information ou aux documents ou de fournir copie des documents dont l'un ou l'autre dispose, dans le cas où cela 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 de l'administrateur général en cause ou à la Commission ou qui est offert sur le marché;
c) soit de fausser les résultats d'un tel test en conférant un avantage indu à une personne.
(4) Si l'administrateur général en cause ou la Commission refuse de donner accès à de l'information ou à des documents aux termes du paragraphe (3), l'appelant peut demander au comité d'appel d'en ordonner l'accès.
(5) Si le comité d'appel ordonne que l'accès soit donné à de l'information ou à des documents en vertu du paragraphe (4), cet accès est assujetti, avant et pendant l'audition, aux conditions que le comité d'appel estime nécessaires pour prévenir les situations décrites aux alinéas (3)a) à c).
(6) L'information ou les documents obtenus en vertu du présent article ne peuvent être utilisés que pour les besoins de l'appel. |
[31] In Barton v. Canada (Attorney General), [1993] F.C.J. No. 746 at paragraph 14 (F.C.T.D.), Justice Rothstein recognized the importance of permitting the appellant to have disclosure of all relevant information:
In such adversarial proceedings, parties are entitled to be represented. Such representation must be effective, in the sense that counsel or representative must have an opportunity of knowing what evidence will be given by the witnesses that he or she will call. He or she must have the opportunity of reviewing the evidence of the expert witness, of organizing the evidence, of ensuring that the evidence is coherent, its best features are emphasized and of preparing the witness for cross-examination. These are the normal functions of counsel. Without access to all relevant information, counsel or a representative cannot properly perform the task of persuading the court or tribunal as to the merits of the client's case.
[Emphasis added.]
[32] Thus I conclude that the onus in the present case was upon Mr. McGregor to establish by evidence his allegation that the merit principle was not followed. Section 26 of the Regulations provided the means for Mr. McGregor to properly prepare his case and he failed to do so.
2) The Appeal Board’s Review of the Evidence
[33] The next issue is whether the Appeal Board erred in its assessment of whether the merit principle was respected by the Selection Board. Mr. McGregor attacks the Selection Board’s assessment of both the knowledge exam, and the abilities and personal suitability qualifications of the candidates. However, I see no reasons to interfere with the Appeal Board’s decision on this basis.
a) The Knowledge Exam
[34] With respect to the knowledge exam, Mr. McGregor maintains that there were inconsistencies between the marking of his exam and those of the successful candidates. The exam consisted of nine questions, the marking of which was divided amongst three members of the Selection Board. At the hearing before the Appeal Board, the Department called as a witness only the Selection Board member who was responsible for marking questions 8 and 9, Sylvain St-Laurent. Mr. St-Laurent was unable to answer Mr. McGregor’s questions about the marking of the other questions, leading Mr. McGregor to argue that the Selection Board had failed to put forward sufficient evidence to establish that the marking of the knowledge exam had been consistent amongst the candidates.
[35] In evaluating Mr. McGregor’s submission with respect to the knowledge exam, the Appeal Board stressed that the onus was on Mr. McGregor to demonstrate that the marking of the exams was faulty, for example, by calling other members of the Selection Board as witnesses. He failed to do so, compelling the Appeal Board to conclude that there was no basis on which to intervene in the Selection Board’s decisions.
[36] Justice von Finckenstein found no error with the Appeal Board’s conclusion. His analysis of this issue is set out at paragraph 13 of his Reasons:
[13] The Applicant asked the testifying Board Member questions as to how the knowledge component was marked (see quote in paragraph 7 above). Evidently, there was nothing in the disclosed materials that could establish a likelihood or possibility that the merit principle was not followed. An Applicant, of course, can and often does make his case out of the mouth of the Selection Board Member. However, here, the Member questioned turned out to be the one who did not mark questions 1 to 7 and thus, could not answer those questions. At this point the Applicant seemingly gave up, instead of asking for an adjournment and questioning the other Selection Board Members. He thus, failed to meet the onus of establishing a ‘real possibility or likelihood’ that the merit principle had not been respected as required by Leckie, supra.
[37] I am unable to find that von Finckenstein J. erred in reaching his conclusion. As canvassed earlier, Mr. McGregor had the burden of establishing that there were inconsistencies in the marking of the knowledge exam. He was therefore required to adduce evidence sufficient to show a “real possibility or likelihood” that the merit principle was not respected at this stage of the selection process. It was not sufficient for Mr. McGregor to merely point to the failure of the Selection Board to establish an evidentiary framework for its decision; he first had to make his case.
[38] Mr. McGregor had ample opportunity to build his case by exercising his extensive rights to disclosure under section 26 of the PSER. The evidentiary record illustrates that Mr. McGregor asked for the disclosure of both documents and information prior to the Appeal Board hearing, and it appears from the evidence that the Department was very cooperative in dealing with these requests.
[39] One of Mr. McGregor’s main grounds of attack in relation to the knowledge exam was the fact that the Department called only Mr. St-Laurent as a witness during the hearing; it did not call the other members of the Selection Board responsible for marking other questions on the exam. However, in an e-mail sent to the Department, Mr. McGregor specifically confirmed that Mr. St-Laurent would be at the Appeal Board hearing to respond to questions and allegations. Although it was open to Mr. McGregor to likewise request the attendance of the other Selection Board members at the hearing, he did not do so. Thus he cannot now complain about the failure of the Department to bring forth additional witnesses.
[40] In any event, if at the hearing Mr. McGregor determined that he would not be able to make his case without the assistance of testimony from the other members of the Selection Board, he could have asked for an adjournment to allow him to question the additional witnesses.
[41] Diane Portelance, Acting Director of Personnel Administration, Human Resource Management for the Department explains these concepts at paragraph 8 of her affidavit:
I was responsible for preparing the disclosure package for Mr. McGregor in advance of the Appeal Board hearing. Included in the disclosure package was a list with the names of all the board members who participated in the two competitions. At no point did Mr. McGregor request that any of the other board members be present at the Appeal Board hearing apart from Mr. St-Laurent. In addition, when it became apparent at the hearing that Mr. St-Laurent could not answer all of the questions posed by Mr. McGregor to his satisfaction, neither Mr. McGregor nor his union representative requested an adjournment so as to call additional witnesses or for any other reason.
[42] In these circumstances, I find no basis for departing from Justice von Finckenstein’s conclusion on this issue.
b) Assessment of Abilities and Personal Suitability
[43] Mr. McGregor also attacks the Selection Board’s assessment of the abilities and personal suitability characteristics of the candidates, a stage of the selection process in which Mr. McGregor did not participate. The abilities and personal suitability characteristics were assessed through a case study exercise. Candidates were given two hours to review the material, which included questions set out in four separate memos. They were then asked to make a thirty minute presentation, followed by a question and answer period in which Selection Board members questioned each candidate about the content of his or her presentation. After the case study, the candidates participated in a structured interview and the Selection Board conducted reference checks.
[44] These assessment methods were designed to test a number of different abilities and personal suitability characteristics relevant to the positions. Selection Board members took notes during the assessment. Afterwards, they compared their notes and discussed each candidate’s demonstrated strengths and weaknesses in relation to each of the assessment criteria. They then agreed upon a mark to award using a rating scale.
[45] According to Mr. McGregor, it was insufficient for Mr. St-Laurent to fail to explain the link between the assessment of each ability and the candidate’s answer with respect to each memo, or the link between reference checks for the successful candidates and how these affected the particular ability and personal suitability ratings. Without this evidence, Mr. McGregor contends that it was impossible for him to challenge the consistency or appropriateness of the marks awarded to the successful candidates.
[46] The Appeal Board considered Mr. McGregor’s arguments on this issue and concluded that he had not demonstrated a “real likelihood” that the merit principle was not respected. Justice von Finckenstein concluded, however, that it was unnecessary to consider Mr. McGregor’s arguments regarding the abilities and personal suitability assessment. He noted that Mr. McGregor had not participated in this stage of the selection process. In view of the fact that von Finckenstein J. had concluded that there was no basis to interfere with the Appeal Board’s decision regarding the knowledge exam, he held that it was unnecessary to evaluate Mr. McGregor’s allegations regarding the other elements on which he was not tested.
[47] In my view, von Finckenstein J. erred in holding that it was unnecessary for him to consider Mr. McGregor’s arguments regarding the abilities and personal suitability elements of the selection process. As this Court stated in Attorney General of Canada v. Bozoian, [1983] 1 F.C. 63 at page 66 (F.C.A.) (“Bozoian”), there are two ways to establish that a competition was not conducted in accordance with the merit principle:
One conceivable approach would be to show that the selected candidate could not possibly be the best qualified of the candidates or did not meet the requirements for selection whether in terms of personal qualifications or of eligibility for consideration. Another approach might be to challenge the way the selection was made so as to show that the selection process itself was illegal or, though legal as a process, was not carried out in a manner calculated to identify the most meritorious candidate.
[48] Mr. McGregor’s challenge regarding the assessment of the abilities and personal suitability characteristics of the candidates is directed to the second approach referred to in Bozoian, namely, that the selection process was not carried out in a manner calculated to identify the most meritorious candidate. Justice von Finckenstein erred in taking into consideration the fact that Mr. McGregor failed the knowledge exam and therefore did not participate in the other elements of the selection process. Having chosen to direct his appeal towards impeaching the selection process, Mr. McGregor’s performance in the competition was irrelevant. The selection of the successful candidates had to respect the merit principle, regardless of how Mr. McGregor personally fared in the competition.
[49] Nevertheless, I am satisfied that the Appeal Board’s conclusion that Mr. McGregor failed to establish that the Selection Board did not respect the merit principle was reasonable.
[50] Mr. McGregor essentially contests the use of a global assessment approach to assess candidates, wherein the candidates’ responses to all four of the memos were considered in their totality in determining whether the candidates demonstrated the required abilities and personal suitability criteria. He maintains that the Selection Board must, at a minimum, be able to explain which of the candidates’ responses were used to assess each ability, and how those responses were evaluated to determine their correctness.
[51] However, the abilities and personal suitability characteristics required for the positions being staffed included such things as the ability to manage a multi-disciplinary human resources team, the ability to establish effective partnerships and working relationships with key stakeholders, the ability to effectively communicate orally and in writing, and behavioural flexibility. To require the Selection Board to explain in minute detail the considerations that played into the selection of a rating for a particular ability or personal suitability characteristic would add a level of artificiality to the process. As Justice Pratte stated in Blagdon at page 623,
The mere fact that an Appeal Board could, had it sat as a Selection Board, have reached a conclusion different from that reached by the Selection Board is not a sufficient ground for allowing the appeal. It must be realized that the assessment of the merit of various persons, which is the function of the Selection Board, cannot be reduced to a mathematical function; it is, in many instances, a pure matter of opinion. And, there is no reason why the opinion of an Appeal Board should be preferred to that of a Selection Board.
[Emphasis added.]
[52] In my opinion, the Appeal Board applied these principles appropriately when rejecting Mr. McGregor’s argument, as set out at paragraph 43 of its decision:
It was not necessary for the selection board to justify how many marks could be attributed to each of the selection tools used to assess a particular qualification. The whole point of a global assessment is to allow the selection board to consider all of the information supplied by the candidate. As noted above, assessment cannot be reduced to a mathematical function.
3) Conclusion
[53] In conclusion, Justice von Finckenstein did not err in holding that the onus in an inquiry under section 21 of the PSEA falls to the appellant, not to the hiring department. Similarly, I am not persuaded that the Appeal Board erred in concluding that Mr. McGregor failed to demonstrate that the merit principle was not respected in the selection process.
DISPOSITION
[54] For the foregoing reasons, I would dismiss the appeal with costs.
"J. Edgar Sexton"
"I agree
A.M. Linden J.A."
I agree
C. Michael Ryer J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-439-06
APPEAL FROM A DECISION OF THE FEDERAL COURT (VON FINCKENSTEIN, J.) DATED OCTOBER 5, 2006, NO. T-1808-05.
STYLE OF CAUSE: Dale McGregor v. Attorney General of Canada, Lynne Lajoie and Susan McKenzie
PLACE OF HEARING: Ottawa, Ontario
REASONS FOR JUDGMENT BY: Sexton J.A.
Ryer J.A.
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APPEARANCES:
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FOR THE APPELLANT |
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Welchner Law Office Professional Corporation Ottawa, Ontario |
FOR THE APPELLANT
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Deputy Attorney General of Canada |
FOR THE RESPONDENT |