Date: 20030530
Docket: T-2001-01
Neutral citation: 2003 FCT 679
BETWEEN:
JOHN BOURGUIGNON
Applicant
and
THE ATTORNEY GENERAL OF CANADA,
BWALYA CHILANGA,
JEFF LIVESY and FRANK MAHEUX
Respondents
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of Gaston Carbonneau, Chairman of a Public Service Commission of Canada Appeal Board (the "Appeal Board") made pursuant to section 21 of the Public Service Employment Act[1] (the "Act") wherein the Appeal Board rejected the appeal of the Applicant following the application of corrective measures directed by the Public Service Commission in relation to a closed competition within the Public Service of Canada. The decision under review is dated the 9th of October, 2001.
[2] The Applicant was one of three appellants from the outcome of the closed competition following the application of corrective measures.
[3] One of the other appellants, James Lalonde, also sought judicial review of the decision here under review[2]. The two applications for judicial review were scheduled to be heard sequentially before me at Ottawa on the 28th of April, 2003. In fact, by agreement of counsel, the two applications were heard together. Separate reasons will issue with respect to the application of James Lalonde.
BACKGROUND
[4] In February 2000, Health Canada initiated a closed competition to staff Junior Informatics Analyst positions within the Information Management Services Directorate of the Information, Analysis and Connectivity Branch of the Department in the National Capital Region. Seventy-nine (79) applications were received. Eight (8) were not within the area of selection. The competition consisted of three (3) elements, a written exam which assessed knowledge requirements, an interview element which was conducted by two (2) different Selection Boards and which was made up of five (5) questions to assess the candidates' abilities, and a reference check. All seventy-one (71) applicants attained a pass mark on the written exam and thus were carried forward into the second element of the competition, the interview element. Three (3) candidates did not attain the pass mark required at interview. The sixty-eight (68) remaining candidates proceeded to the reference check element of the competition which was designed to assess personal suitability. Four (4) candidates were unsuccessful on the reference check element of the competition.
[5] Of the sixty-four (64) remaining candidates, the sixty-three (63) highest ranking were placed on an Eligibility List which was created for a period of one (1) year. The Department intended to make forty (40) offers of appointment immediately after the competition and to use the Eligibility List as future vacancies occurred in the Directorate within the one (1) year for which the List remained current. Five (5) appeals were filed pursuant to subsection 21(1) of the Act. That subsection reads 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.
Four (4) of the appeals were allowed in whole or in part.
In the result, the Public Service Commission directed Health Canada to undertake corrective measures in relation to the competition. In a letter dated the 19th of December, 2000, a representative of the Commission wrote:
The department will undertake the following corrective measures:
a) inform all candidates of these allowed appeals and of the corrective measures to be implemented;
b) develop a new tool to assess the Knowledge of DOS, Lotus Smart Suite and Corel WordPerfect 8;
c) cancel Questions 5A and 5B; reassess answers to Question 7 accepting 2 possible answers; correct the mathematical error for candidate Sabbagh for Section 2 of Knowledge (total 8 marks and not 9); review answers to Question 10B giving 1 point to candidates who answered (d);
d) the two boards will meet to review all candidates' answers to the 5 interview questions (see paragraph 52 of the appeal board decision for details) and to ensure that answers are considered in a consistent manner and that consensus is reached;
e) conduct a reference check for appellant Lalonde with the same person who responded to the original one that was destroyed;
f) conduct a reference check for appellant Robinson with a different person than the one who responded originally;
g) issue a new eligibility list and grant appeal rights per subsection 21(4) of the PSEA;
h) inform the undersigned, in writing, of the result of these corrective measures.[3]
[7] Only one (1) point from the corrective measures directed is of particular significance for the purposes of this matter. The Public Service Commission ordered a review of all candidates' answers to the five (5) interview questions which provided an opportunity for reconsideration of the marks awarded to the Applicant.
[8] The corrective measures were implemented. Following implementation of the corrective measures, neither the Applicant nor James Lalonde was among the candidates whose names were placed on an Eligibility List. In the result, an appeal to the Public Service Commission Appeal Board in relation to the implementation of the corrective measures, was taken by the Applicant, James Lalonde, and by another unsuccessful candidate. It is the decision on that appeal that is now before the Court.
THE DECISION UNDER REVIEW
[9] All three (3) appeals from the implementation of the corrective measures were heard together. In its "REASONS FOR DECISION" , the Appeal Board introduced the subject matter before it in two (2) brief paragraphs. It then acknowledged the corrective measure quoted earlier in these reasons as element d), and the two (2) other elements of the corrective measures, not relevant to this application for judicial review. It then turned directly to the appeal of James Lalonde and disposed of that appeal. There followed a brief review and disposition of the Applicant's appeal in the following terms:
ALLEGATIONS OF APPELLANT JOHN BOURGUIGNON
1. The appellant alleges that his reference check was not properly rated under flexibility and judgement. For example, C. Lapensée was rated at 20 as compared to 16 for the appellant with very little differences in the answers given. The appellant's sole argument for this allegation is that Exhibit A-10 made it evident that the referee, Jim Mintz, in an e-mail addressed to the appellant stated "I do not remember doing any ranking". He argued that both the supervisor and the client (Mr. Mintz) had to do the ranking . Thus, if all the candidates were ranked by the supervisor and the client he did not benefit by the ranking of Mr. Mintz.
DECISION
In its reply, the appellant's supervisor testified that he completed his reference check and that when he received the returned assessment from Mr. Mintz, he brought it back to him as he had failed to circle his ratings. He therefore stood in the door while Mr. Mintz circled his ratings.
In the final analysis, it is obvious to the undersigned as testified by Ms. Murphy that the appellant had confused the words "ranking" and assessment". It is clear that the Appellant was assessed by both his supervisor and the client. Also, the Department has fully justified the marks of the appellant and those of Mr. Lapensée. This allegation cannot withstand scrutiny.
The Department raised an objection in this case stating that this allegation should be dismissed as it is unrelated to the corrective measures following the first allowed appeal. I disagree with the Department's position in this case. The appellant was a successful candidate the first time around and consequently did not appeal the first appeal board decision. Finding himself to be unsuccessful after the implementation of the corrective measures, he is now in a position where he can in law challenge the whole process. I must dismiss the Department's objection. However, on the merits, I must dismiss the appellant's allegation bearing on the assessment resulting from his reference checks as well as the marks that were allotted to him in relation to those allotted to Mr. Lapensée.
2. The appellant alleges that he was improperly rated for his answers to questions 3 and 5 as they were appropriate. He argued that he was only awarded 1 mark out of 8 for his answer to question 3. He submits that he should be allowed 2 marks for keeping the client calm, 2 marks for "log for reference" and 2 more marks for "explaining the procedure", thus 7 marks out of 8.
He also argued that he should be getting 8 points out of 8 and not only 4 points for his answer to interview question 5. In his view, he should have been allotted additional marks for showing "tips and tricks" to his client, additional marks for establishing a relationship, for giving a personal service or a personal touch as well as additional marks for what he referred to as "walk around".
DECISION
As regards his answers to question 3, no one was allotted marks for keeping the client calm. They were allotted marks if they stated that they themselves remained calm. He did not provide that answer. Correctly, no points were allotted for"log for reference" or for explaining the procedure. The two selection boards came to the proper conclusion that the appellant was deserving of only 1 mark out of 8 as stated in their answer to this allegation.
As regards his answers to question 5, it suffices to say that the selection board members awarded the same marks to all other candidates, who answered this question in a manner similar to the appellant. His answer lacked elaboration.
It should be made clear that in light of the existing jurisprudence, it is not the role of an appeal board to substitute its opinion to that of a selection board unless that opinion is patently unreasonable. This has clearly not been the case in this instance. These allegations are dismissed.
Consequently, the appeal of John Bourguignon is dismissed.[4] [footnote omitted]
[10] The Appeal Board followed a similar pattern of stating an allegation followed by its decision in respect of that allegation in respect of James Lalonde and the third appellant. Following its brief analysis with respect to the third appellant, in just over one (1) line, it concluded its decision by cumulatively dismissing the three (3) appeals before it.
THE STATUTORY FRAMEWORK
[11] Subsection 10(1) of the Act establishes the "merit principle" as the principle governing appointments to and from within the Public Service. That subsection reads as follows:
10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.
...
10. (1) Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission, et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique.
...
[12] Subsection 21(1) of the Act, quoted earlier in these reasons, provides a right of appeal to an Appeal Board, in favour of any unsuccessful candidate in a closed competition, such as the competition here at issue. The first appeal from the conduct of the competition here at issue, brought by James Lalonde and others, and referred to earlier in these reasons, was brought under the authority of subsection 21(1). The role of the Appeal Board on that appeal was to determine whether or not the closed competition at issue was conducted in accordance with the merit principle[5]. The Appeal Board dealing with the first appeal determined that the merit principle had not been fully complied with in the conduct of the competition at issue.
[13] In the result, subsection 21(3) of the Act became operative and the Public Service Commission became vested with the authority to prescribe corrective measures, as, on the facts of this matter, it did. Subsection 21(3) of the Act reads as follows:
(3) Where a board established under subsection (1) or (1.1) determines that there was a defect in the process for the selection of a person for appointment under this Act, the Commission may take such measures as it considers necessary to remedy the defect.
...
(3) La Commission peut prendre toute mesure qu'elle juge indiquée pour remédier à toute irrégularité signalée par le comité relativement à la procédure de sélection.
...
[14] Where, as here, one or more unsuccessful candidates following the implementation of prescribed corrective measures remains dissatisfied with the result, that unsuccessful candidate or those unsuccessful candidates may institute a further appeal to an Appeal Board but only on the ground "...that the measures so taken did not result in a selection for appointment according to merit". Such an appeal is instituted under the authority of subsection 21(4) of the Act. That subsection reads as follows:
(4) Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit.
(4) Une nomination, effective ou imminente, consécutive à une mesure visée au paragraphe (3) ne peut faire l'objet d'un appel conformément aux paragraphes (1) ou (1.1) qu'au motif que la mesure prise est contraire au principe de la sélection au mérite.
It is to be noted that an appeal under subsection 21(4) of the Act relates only, on the facts of this matter, to the impact of implementation of the corrective measures on selection for appointment according to merit. Such an appeal does not extend to a revisiting of the impact of the original selection process.
[15] Finally, subsection 21(5) of the Act provides a limitation on the application of the merit principle and of the appeal rights just described in limited circumstances not applicable to the facts of this matter.
THE ISSUES
[16] While not described in the following terms in the Memorandum of Fact and Law filed on behalf of the Applicant, I am satisfied that the issues before the Court can be briefly summarized as follows: first, what is the appropriate standard of judicial review of the decision here under consideration; and secondly, against the appropriate standard of judicial review, did the Appeal Board make any reviewable error in arriving at the decision that it did.
ANALYSIS
a) Standard of Review
[17] It was not in dispute before me that, on a question of law, the standard of review of a decision of an Appeal Board is correctness. In Boucher v. Canada (Attorney General)[6], Justice Strayer, for the Court, wrote at paragraphs [7]:
Turning to the first issue, that of the treatment accorded to the Knowledge factor by the Selection Board, we are of the view that this involves an issue of law as to the requirements of the merit principle and we therefore consider that the [Appeal Board's] decision to confirm that process equally involved a conclusion of law. We are not persuaded that the [Appeal Board] is a tribunal which should be considered to have such expertise in the interpretation of the Public Service Employment Act that a high degree of deference is owed to it on this issue. The Board is appointed ad hoc. We conclude in this respect that the standard of review which the Trial Division should have applied is that of correctness.
[18] Where the issue under consideration involves neither a question of law nor of jurisdiction, greater deference is owed to the Appeal Board. In Hains v. Canada (Attorney General)[7], Justice Heneghan wrote at paragraph [25]:
This Court will intervene if the decision under review is based on erroneous findings of fact that were made in a perverse or capricious manner or without regard for the evidence before the decision-maker; ...
When an appeal essentially raises an issue of law in the application of the merit principle, the applicable standard of review is correctness; [citations omitted]
b) Reviewable error
[19] Counsel for the Applicant urged that the Appeal Board erred in a reviewable manner in two respects where the error is apparent on the face of its analysis, as quoted earlier in these reasons. The first alleged error relates to the Board's analysis with respect to the Applicant's rating for his answers to question 5 when in fact his concerns were with respect to the rating of his answers to question 4. Counsel for the Respondent acknowledged that the references to the rating of the Applicant's answers to question 5, of which there are three (3) in the brief reasons, was in fact incorrect but that a review of the material as a whole discloses that these were mere typographical errors and not errors of substance. In this regard, I agree with the position of counsel for the Respondent. There could be no question but that the wrong references on the part of the Board would reasonably give rise to an apprehension that the Board had simply misapprehended the arguments made before it. That being said, a careful reading of the transcript of the hearing before the Board leads me to conclude that the Board understood the allegations being made before it regarding the rating of the Applicant's responses to question 4 and simply made an unfortunate technical error in reducing its understanding and analysis to written form.
[20] The second error urged to be apparent on the face of the record related to standard of review. Counsel referred me to the following brief paragraph from the Board's reasons that I repeat here for ease of reference:
It should be made clear that in light of the existing jurisprudence, it is not the role of an appeal board to substitute its opinion to that of a selection board unless that opinion is patently unreasonable.[8]
[21] Counsel urged that the foregoing statement represented an error of law. I reject this submission.
[22] In Scarizzi v. Marinaki[9], Justice Rothstein wrote:
It is clear that one of the functions of the Appeal Board is to ensure, as far as possible, that Selection Boards adhere to the merit principle in selecting candidates for positions from within the Public Service in accordance with s. 10 of the Act. However, it is not empowered to substitute its opinion with respect to a candidate's assessment or examination for that of the Selection Board. Only if a Selection Board forms an opinion that no reasonable person could form, may an Appeal Board interfere with the decision of the Selection Board.
[23] I adopt the foregoing paragraph as my own. I find no basis on which to conclude that the Appeal Board reviewed the Applicant's appeal against the application of corrective measures according to a wrong standard.
[24] Counsel further alleged that the Appeal Board denied fairness to the Applicant when it refused to have regard to interview materials of other candidates that were tendered before it by the Applicant. While a careful review of the material that was before the Appeal Board does disclose that interview notes of two candidates tendered by the Applicant were not before the Appeal Board, I am satisfied that, on a careful review of those notes, consideration of them would not have affected the Appeal Board's reasoning. In such circumstances, I am not satisfied that the Appeal Board's error warrants the intervention of this Court.[10]
[25] Finally, counsel for the Applicant urged that the Appeal Board's finding that the Selection Board's allocation of marks to the Applicant in respect of his answers to questions 3 and 4 on the interview element of the closed competition was simply perverse and, in any event, was not adequately supported by the reasons of the Appeal Board. I am sympathetic to the position of the Applicant in this regard. The Appeal Board's determinations regarding the allegations of error by the Selection Boards in applying the corrective measures in respect of the Applicant are briefly stated, almost to a fault. That being said, while a more fulsome analysis and justification of its conclusions by the Appeal Board would have been desirable and might have allowed for final settlement of the Applicant's concerns without the necessity of this appeal, once again, I can only conclude that the Appeal Board made no reviewable error in this regard.
CONCLUSION
[26] Based upon the foregoing analysis, this application for judicial review will be dismissed. There will be no order as to costs.
_____________________________
J.F.C.C.
Ottawa, Ontario
May 30, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2001-01
STYLE OF CAUSE: JOHN BOURGUIGNON v. THE ATTORNEY GENERAL OF CANADA, BWALYA CHILANGA,
JEFF LIVESY and FRANK MAHEUX
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 28, 2003
REASONS FOR ORDER: GIBSON J.
DATED: May 30, 2003
APPEARANCES:
Dougald Brown FOR APPLICANT
J. Sanderson Graham FOR RESPONDENT
SOLICITORS OF RECORD:
Nelligan O'Brien Payne LLP FOR APPLICANT
Lawyers/Patent & Trade-Marks Agents
Ottawa, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
[1] R.S.C. 1985, c. P-33.
[2] Court file: T-2007-01.
[3] Applicant's Application Record, Volume 1, pages 62 and 63.
[4] Applicant's Application Record, Volume 1, pages 265 to 268.
[5] See: Attorney General of Canada v. Appeal Board established by the Public Service Commission [1982] 1 F.C. 803 at 804 (C.A.).
[6] (2000), 252 N.R. 186 (C.A.).
[7] (2001), 209 F.T.R. 137.
[8] Applicant's Application Record, Volume 1, page 268.
[9] (1994), 87 F.T.R. 66.
[10] See: Yassine v. Canada (Minister of Employment and Immigration)(1994), 172 N.R. 308 (F.C.A.), not cited before me.