Date: 20031114
Docket: T-552-02
Citation: 2003 FC 1338
OTTAWA, ONTARIO, FRIDAY, THIS 14TH DAY OF NOVEMBER, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
MAUREEN CARTY, SUSAN MARCHANT, JOSEPH DALRYMPLE,
BARRY McCURDY, BERT DANDY and ANGELA LIN
Applicants
- and -
ATTORNEY GENERAL OF CANADA,
DAVID McBEAN, NEIL WILLARD, GLEN NG and JENNIFER HARNUM
Respondents
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] In 2001, the Immigration and Refugee Board (the "IRB") advertised a closed competition to fill the position of Operations Service Manager (PM-05) in its Toronto office. The Applicants are all federal public servants who applied unsuccessfully for the advertised position. The Selection Board for the competition carried out its assessment of the candidates on the basis that a candidate was not required to "pass" each of the job qualifications separately, other than those qualifications marked as "non-compensatory" in the Statement of Qualifications. While the Board established a "pass" mark for each of the non-compensatory factors, it did not do so for each of the other qualifications. Rather, it undertook a global assessment in each of the three categories of "Knowledge", "Abilities" and "Personal Suitability". That is, the board combined the scores for each of the qualifications under each of the categories and measured the candidates against a global score for each of the three broad categories.
[2] The Applicants appealed the appointments of the successful candidates to the Public Service Commission Appeal Board (the "Appeal Board") under section 21(1) of the Public Service Employment Act (the "Act").
[3] By decision dated April 10, 2002, the Appeal Board dismissed the Applicants' allegation. The Applicants seek judicial review of that decision.
Issues
[4] The Applicants and the Attorney General of Canada, one of the Respondents, agree that the only issue before this Court is whether the Appeal Board correctly decided that the Selection Board respected the merit principle during the assessment process. In the particular circumstances of this case, the issue is whether the Appeal Board erred in taking a global approach to the assessment of qualifications.
Background
[5] In this case, a panel of three employees of the IRB, known as the Selection Board, was appointed to assess the candidates and select, rank and appoint the best qualified individual for the position. The candidates were assessed against the fifteen qualifications contained in the Statement of Qualifications prepared by the IRB. These qualifications related to Knowledge (4), Abilities (6) and Personal Suitability (5).
[6] Three qualifications listed within the "Abilities" category - leadership, team building and communication - were identified as non-compensatory. According to the competition poster, this means that each of these qualifications "is a critical qualification, which may be used for screening, rating and/or ranking. It cannot be compensated for by strengths in other areas." The assessment was carried out as follows:
(a) The Selection Board assessed "Knowledge" globally through an oral interview. To qualify, candidates were required to obtain an overall score of 24/40 (60%) based on the total of their scores on the individual qualifications.
(b) "Abilities" were assessed using the Personnel Psychology Centre Assessment for Identifying Middle Management Potential. To qualify, candidates were required to achieve an overall score of 48/84 on the 6 qualifications. However, a candidate also needed 4/7 on each non-compensatory qualification.
(c) "Personal Suitability" was assessed globally on the basis of an oral interview, reference checks as well as information elicited through the process described in (b). To qualify, candidates were required to achieve an overall score of 45/75 (60%).
[7] Unfortunately, none of the Applicants were deemed eligible. The Respondents, David McBean, Neil Willard, Glen Ng and Jennifer Harnum obtained the requisite scores and were placed on the eligibility list in order of merit.
Appeal Board's Decision
[8] The Appeal Board dismissed the Applicants' appeals in their entirety and offered the following reasons for finding that the merit principle was not contravened in this case:
Turning to the final allegation, I am not persuaded that the Selection Board acted inappropriately in the assessment of the candidates' qualifications. At the outset of the selection process three qualifications were identified as non-compensatory, that is, candidates had to meet the minimum standard on each of those qualifications in order to be considered qualified for the position. Candidates therefore clearly understood from the outset that failure to obtain the minimum standard on leadership, team-building and communication would result in the Board's determination that they were not qualified for appointment to the Operations Service Manager position.
In my view, this differentiates the instant situation from that determined in Nelson and Russell (supra). First of all, there is no question that the Selection Board has the obligation to assess all of the qualifications listed in the statement of qualifications. That the responsible manager specifically identified those qualifications which were considered mandatory (i.e. non compensatory) addressed, in my view the concerns raised by the Court in Nelson and Russell (supra) as leadership, communication and team-building were identified as essential and distinct qualifications from those remaining on the statement of qualification. By identifying specific qualifications which candidates must possess and determining that candidates meet/do not meet the minimum standard for the position on the basis of their success on those three factors establishes the importance of those qualifications for the Operations Services Manager position. It seems logical, therefore, to assume that the remaining qualifications were not considered to be equally as critical to the position as they were not so identified. Consequently, in my opinion, it was appropriate for the Selection Board to assess the individual sub-factors on an aggregate basis under the main qualification headings of knowledge, abilities and personal suitability through the determination of an appropriate minimum standard for each of those three headings. As such the actions taken in the instant selection process can be differentiated from those outlined in the Nelson and Russell judgment.
Standard of Review
[9] As agreed by the parties, I have applied a standard of correctness to his decision of the Appeal Board.
Analysis
[10] In this case, there are two decisions of particular relevance. The first of these is the Federal Court of Appeal decision in Boucher v. Attorney General of Canada, [2000] 252 N.R. 186. In that case, of five candidates who had been deemed qualified, three had failed the only Knowledge qualifications specified for the position. The Department argued that the Knowledge factor was included in a global score which included grades on other qualifications. The Federal Court of Appeal concluded that this was not consistent with the merit principle, stating as follows:
In accordance with this standard we find that the Selection Board erred in law in not requiring that candidates succeed on each of the advertised qualifications for this position. This was in effect a failure to assess the factor of Knowledge... In effect, it eliminated Knowledge as a qualification notwithstanding the advertised requirements for the job. As the Court has held on other occasions, a Selection Board cannot change the advertised qualifications by limiting one or more of them: to do so is unfair to those who might otherwise have applied but failed to do so because they recognise that they do not have all the advertised qualifications.
...
Nor are we persuaded, as was the learned Trial judge, that the Knowledge factor was adequately assessed by including our candidates mark on this factor in his total score: the fact remains that this factor was eliminated as a prerequisite for the position.
Boucher, supra, at paragraphs 8-9
[11] The second decision is Nelson et al v. Canada (Attorney General) et al [2001] 204 F.T.R. 287. The department in that case identified a number of qualifications in the Statement of Qualifications. The Selection Board determined that candidates had to pass only certain of those qualifications. A successful candidate could fail one of the qualifications specified and still be considered qualified for the purposes of the competition. In fact, three candidates who were placed on the eligibility list had failed one of the Knowledge qualifications. In allowing the application for judicial review, Justice Muldoon stated as follows:
... Additionally, a Selection Board errs in law when it does not require that candidates succeed on each of the advertized qualifications for a position. This amounts to a failure to assess a qualification. It is not open to a Selection Board to eliminate qualifications during the selection process. Finally, changing the advertized qualifications by eliminating one or more is unfair because potential candidates may have failed to apply because they recognize that they did not have all of the advertized qualifications ...
The respondents submit that the appropriate test is whether this selection board reasonably formed the opinion that the candidates met the knowledge factor as a whole, not whether they met each of the subfactors individually. Not so. That qualifications are listed under rubrics of "Knowledge" or "Personal Suitability" does not diminish the importance of each one. Each discrete qualification must be evaluated because each one is essential and independent of the others.
Nelson, supra, at paragraphs 26 and 28
[12] In my view, these cases establish very clearly that there must be an evaluation of each qualification. The express finding in each of Boucher, supra and Nelson, supra is that each discrete qualification must be evaluated.
[13] The Attorney General attempts to distinguish these two decisions from the one before me. Unfortunately, I am unable to agree with the alleged points of distinction.
[14] The Attorney General points to the fact that certain of the qualifications were established as "non compensatory", meaning that the candidates must be competent in those qualifications. The inference that the Attorney General would have me draw is that it is satisfactory to assess the other qualifications on a global basis. I do not believe that this is in accord with the decisions in the two cases cited. As a result of such assessment, it is theoretically possible that a candidate could score 0 in a given qualification and still succeed. Since that qualification was established by the IRB, even though identified as non-compensatory, it is the obligation of the Selection Board to evaluate the qualification in some meaningful way. Although, it is certainly up to the Selection Board to give different weights to the different qualifications, it is not open to the Selection Board to ignore any of the qualifications. That was the finding in each of Boucher, supra and Nelson, supra. In Justice Muldoon's view, each discrete qualification must be evaluated. Inherent in the concept of evaluation is the establishment of some standard of measurement - a "pass mark" - for each qualification.
[15] If the designation "non-compensatory" is really an instruction from a department to a Selection Board to use the global assessment method for all other qualifications, then it is essentially instructing the Selection Board to administer a competition to consider only some of the qualifications for the position. This is precisely the impropriety that was held in Laberge v. Canada (Attorney General), [1988] 2 F.C. 137 (C.A.) to violate the merit principle. If the designation "non-compensatory" is not such an instruction, then a Selection Board that applies the global assessment method is deciding on its own that some qualifications are optional. As established in Nelson, supra and Boucher, supra, the Board cannot do this.
[16] The assessment carried out by the Selection Board was detailed and conscientiously completed. In my view, the only additional step required to comply with the legal requirements is to establish a threshold for each qualification. It is entirely in the hands of the Selection Board to carry out that step. In my view, a "pass mark" for an individual qualification (other than those that are non-compensatory) may be established, in the total discretion of the Selection Board.
[17] Based on the decisions referred to, I am compelled to find in favour of the Applicants. Accordingly, this application will be allowed.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is allowed with costs to the Applicants.
2. The decision rendered April 10, 2002 is set aside and the matter is referred back to a differently constituted Appeal Board to be dealt with in accordance with the reasons of this Court.
"Judith A. Snider"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-552-02
STYLE OF CAUSE: MAUREEN CARTY et al v. ATTORNEY GENERAL
OF CANADA et al
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: WEDNESDAY, NOVEMBER 12, 2003
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MADAM JUSTICE SNIDER
DATED: FRIDAY, NOVEMBER 14, 2003
APPEARANCES:
Mr. David Yazbeck FOR APPLICANTS
Ms. Marie Crowley FOR RESPONDENTS
SOLICITORS OF RECORD:
RAVEN, ALLEN, CAMERON & BALLANTYNE FOR APPLICANTS
BARRISTERS AND SOLICITORS
OTTAWA, ONTARIO
MORRIS ROSENBERG FOR RESPONDENTS
DEPUTY ATTORNEY GENERAL OF CANADA
OTTAWA, ONTARIO