Ottawa, Ontario, November 24, 2005
PRESENT : The Honourable Mr. Justice Yves de Montigny
BETWEEN :
and
THE ATTORNEY GENERAL OF CANADA
AND JASON JONGEN
REASONS FOR ORDER
[1] This is an application for judicial review in respect of a decision rendered by the Appeal Board on August 12, 2004, dismissing the Applicant's appeal of a proposed nomination under the Public Service Employment Act (the "PSEA" or the "Act"). The Applicant alleged that the Selection Board and in particular Chief Paul Fallon were biased in their assessment of her qualifications because she had previously filed a harassment complaint against Chief Fallon. The Appeal Board was unable to conclude that a reasonable apprehension of bias existed and dismissed the Applicant's appeal.
[2] At the heart of this procedure is the implementation of the merit principle, which is the cardinal value underlying the appointment process in the Public Service of Canada and on which rests, ultimately, the competence, the independence and the integrity of this institution. Needless to say, this is of vital importance as the strength of our Public Service is essential to the efficient functioning of our system of responsible government.
BACKGROUND
[3] The Applicant, Linda Cheney, is a Fire Inspector within the Fire Inspection Branch of the Department of National Defence at the Canadian Forces Base in Borden, Ontario. From January 2001 to March 2003, Ms. Cheney received very positive performance reviews, meeting and often exceeding the requirements of her Fire Inspector position. These assessments were made by her supervisors, Chief Fallon for the period covering January to December 2001, and Mr. Prior for the period between January 2002 and March 2003.
[4] Prior to September 2002, the Applicant filed an harassment complaint against Base Fire Chief Paul Fallon, which was later determined to be unfounded. On July 21, 2004, Chief Fallon completed Ms. Cheney's performance review for the period from April 2003 to March 2004 as her previous supervisor had resigned his position. The Applicant's performance was determined to meet all of the standards for the position with specific weaknesses noted in the area of teamwork. This evaluation was acknowledged to have been prepared after the competitive process but covered the previous fiscal year in which the selection process had been conducted.
[5] In the summer of 2003, a notice of competition was issued for the position of Firefighter at the Canadian Forces Base in Borden, Ontario. Four applications were received, including Ms. Cheney's. One applicant was screened out and the remaining candidates, including Ms. Cheney, were assessed on the basis of a written test to assess knowledge, a physical fitness test, reference checks and personal knowledge of the Selection Board.
[6] The members of the Selection Board included Base Fire Chief, Paul Fallon, who was the chairperson of the Board, Acting Deputy Fire Chief, Jeff Kirk and Marika Kun, Civilian Human Resources Officer. At the time of the competition, Chief Fallon was Mr. Kirk's supervisor and both of them had previously supervised Ms. Cheney.
[7] Ms. Cheney was unsuccessful in the physical fitness test. In her decision, the Appeal Board Chairperson concluded that Ms. Cheney was not afforded the opportunity to take the test with the appropriate equipment and therefore found the results of this test to be unreliable. This finding is not an issue in the present application.
[8] The personal suitability qualifications were defined as follows in the Statement of Qualifications for the position of Firefighter: "Overall personal suitability to effectively perform the duties of the position, including such traits as maintaining effective interpersonal relationships, judgment, motivation, initiative, dependability". They were assessed through reference checks. The referees chosen by Chief Fallon to provide reference checks for Ms. Cheney were himself, his Deputy Fire Chief, Jeff Kirk, and Fire Chief D. Gannon, former Chief for the Springwater Township and a former supervisor of the Applicant. Ms. Cheney failed three out of four of the personal suitability qualifications. Jason Jongen, the only successful candidate, was placed on an eligibility list which expired on July 26, 2005.
THE DECISION OF THE PUBLIC SERVICE COMMISSION APPEAL BOARD
[9] Ms. Cheney brought an appeal under section 21 of the Act against the selection made for the proposed appointment of Mr. Jongen to the position of Firefighter with DND in Borden, Ontario. In addition to the allegations concerning the physical fitness test, Ms. Cheney alleged that the Selection Board was biased against her. She argued that the existence of the harassment complaint, Chief Fallon's conduct leading up to the competition, and his role as Selection Board Chairperson and supervisor would all lead an observer to conclude that there existed a reasonable apprehension of bias against Ms. Cheney. In addition, Ms. Cheney argued that the Selection Board was biased in their assessment of her qualifications, especially in light of her previous positive performance reviews.
[10] The hearing took place on July 29, 2004, and the decision was released on August 12, 2004. The Chairperson accepted Ms. Cheney's arguments regarding the physical fitness test; however, she dismissed Ms. Cheney's appeal on the bias issue as she could not conclude that a reasonable apprehension of bias existed in this case.
[11] The gist of the Chairperson's reasoning on the issue of bias is reflected in the following excerpt from her decision:
...I can find no evidence to suggest that the Selection Board's assessment of the appellant's personal suitability qualifications was unreasonable. Assessment criteria was established for each of the personal suitability qualifications assessed and candidate performance was evaluated against a ten point marking scheme. Testimony from the Board members confirmed that a consensus was reached on each of the qualifications using the information obtained from the reference checks conducted.
Turning to the issue of the participation of Chief Fallon in the selection process and the argument that he exerted undue negative influence on the Board's assessment of her qualifications, I am not persuaded from the evidence and testimony provided that the Board has not acted fairly or honestly in reaching a decision regarding the appellant's personal suitability qualifications of effective interpersonal relations, judgment and dependability. Although the appellant has argued that the Board was unduly influence by the alleged bias by Chief Fallon, I am unable to conclude from the evidence before me that such influence occurred. References were obtained from three separate sources, Chief Fallon, Mr. Gannon and Deputy Chief Kirk. Specific examples were provided by each of those individuals to support their comments and the definitions for each of the four factors being considered were provided to the referees. It was on the basis of all the information gathered by the Selection Board that a final determination was made by the Board that some major deficiencies were noted in the performance by the appellant and consequently she was assessed as weak in three of the four personal suitability qualifications assessed. With the exception of the information obtained from Mr. Gannon, the appellant has not provided substantive evidence to refute the examples provided. Further, although the appellant has clearly a different view of the circumstances which resulted in disciplinary action with the Springwater Township, there was no dispute that she did not follow the order received to obtain a rescue saw. As I am unable to conclude that a reasonable apprehension of bias exists in the manner in which the Selection Board awarded marks or considered the reference information obtained, it follows that no intervention is warranted.
[12] Although hearings before the Appeal Board are usually recorded by the Appeal Board Chairperson, the original audio cassettes received by the Commission's recourse branch were blank, and therefore, transcripts of the hearing are unavailable.
ISSUES
[13] This application essentially raises three questions:
- What is the appropriate standard of review?
- Did the Appeal Board err in law by applying the wrong test for bias?
- Is the Appeal Board's finding that there was no reasonable apprehension of bias supported by the evidence?
RELEVANT STATUTORY PROVISIONS
| 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.
Idem (2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons.
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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.
Idem (2) Pour l'application du paragraphe (1), la sélection au mérite peut, dans les circonstances déterminées par règlement de la Commission, être fondée sur des normes de compétence fixées par celle-ci plutôt que sur un examen comparatif des candidats.
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| 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.
Idem (1.1) Where a person is appointed or about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service by a process of personnel selection, other than a competition, any person who, at the time of the selection, meets the criteria established pursuant to subsection 13(1) for the process 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.
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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.
Idem (1.1) Dans le cas d'une nomination, effective ou imminente, consécutive à une sélection interne effectuée autrement que par concours, toute personne qui satisfait aux critères fixés en vertu du paragraphe 13(1) 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.
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ANALYSIS
A) Standard of Review
[14] There was no dispute between the parties (at least during the hearing) as to the proper standard of review to be applied on the two issues to be determined on this application. Applying the pragmatic and functional approach espoused by the Supreme Court of Canada in a number of decisions (see, for ex., Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247), there is no doubt in my mind that the determination of the appropriate test for bias is a question of law attracting the standard of correctness. On the other hand, the question of whether the Appeal Board properly assessed whether there was a reasonable apprehension of bias, or whether the merit principle was offended on the facts, is a question of mixed fact and law and should be reviewed on the standard of reasonableness simpliciter.
[15] Indeed, this is the conclusion reached by most of my colleagues and by the Court of Appeal when confronted with issues similar to the ones raised in this application: see, by way of illustration, Boudreau v. Canada (Attorney General) (2003), 242 F.T.R. 231; F.C.J. No. 1801 (QL); Barbeau v. Canada (Attorney General) (2002), 219 F.T.R. 210; F.C.J. No. 582 (QL); Buttar v. Canada (Attorney General) (2000), 186 D.L.R. (4th) 101; F.C.J. No. 437 (F.C.A.) (QL); Davies v. Canada(Attorney General)(2005), 330 N.R. 283; F.C.J. No. 188 (F.C.A.) (QL); Kadouri c. Canada(Procureur general), [2005] A.C.F. No. 642 (QL); Boucher v. Canada(Attorney General)(2000), 252 N.R. 186 (F.C.A.).
[16] I am therefore in full agreement with my colleague Justice Lamer-Tremblay when she states at para. 14, in Fox v. Canada(Attorney General)(2004), 18 Admin. L.R. (4th) 180; F.C.J. No. 1172 (QL):
...I find that the question of whether the correct test for bias has been used is a question of law and thus must be reviewed on a correctness standard: Boucher v. Canada(Attorney General), supra, at para. 7. However, the question of whether the Appeal Board properly assessed the actions of the selection board in relation to the merit principle and pre-selection, or whether the merit principle was offended on the facts, is a question of mixed fact and law and in my opinion must be reviewed on a reasonableness simpliciter standard: Hains v. Canada (Attorney General) (2001), 209 F.T.R. 137 (Fed. T.D.).
B) The Legal Test for Bias
[17] Impartiality is certainly the cornerstone of a fair, credible and transparent system of justice in a democratic society. While the scope and rigour of this fundamental principle may vary according to the nature of the tribunal and of the questions to be adjudicated, it is absolutely essential that the person entrusted with the authority to rule on a dispute involving private litigants or to settle a conflict between a citizen and the state be of an open mind, capable of assessing the evidence with no preconceived idea as to the outcome. This is why justice must not only be done, but must also be seen to be done.
[18] The test for bias was most clearly enunciated by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:
... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information....[The] test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly.
[19] Of course, what will constitute a reasonable apprehension of bias will depend on the context. But it is now beyond dispute that actual bias need not be established, if only because it would be virtually impossible to prove as a matter of fact that a decision-maker approached the matter to be disposed of with a truly biased state of mind. As a result, the decisions of this Court and of the Court of Appeal in Canada(Attorney General) v. Mirabelli, [1987] F.C.J. No. 142 (F.C.A.) (QL) and Attorney General of Canada v. Bozoian (1982), 136 D.L.R. (3d) 121;1 F.C. 63 (F.C.) (QL) cannot be read as requiring proof of actual bias before the merit principle can be found to have been subverted, in the context of s. 21 of the PSEA.
[20] This controversy has led my brother Gibson J. to come up with a compromise position, according to which surrounding circumstances can demonstrate a "presumptive actual bias" that is somehow a halfway house between a finding of actual bias and a reasonable apprehension of bias. Here is how he described this concept in Hnatiuk v. Canada(Treasury Board) (1993), 65 F.T.R. 307; F.C.J. No. 703 (QL), at para. 14:
It is clear from Henri and Mirabelli that "reasonable apprehension of bias" is insufficient to support a conclusion that the merit principle has been contravened. But I do not read those cases as going so far as to preclude a finding of actual bias, or of what I might term presumptive actual bias, where a reasonable apprehension of bias, as found by the Chairperson in this case, can be read together with essentially uncontradicted evidence of an apparently credible, disinterested and qualified third party to the effect that the applicant herein, to quote the decision of the Chairperson," ... had the knowledge and other qualifications to succeed in the competition for Communications Engineering Manager".
[21] This approach was explicitly approved by the Court of Appeal, according to whom actual bias may be discoverable in all of the circumstances of a competition and does not necessarily have to be apparent on the face of the record (see Hnatiuk v. Canada (Treasury Board) (1994), 81 F.T.R. 318; F.C.J. No. 891 (QL). The reluctance to conclude that actual bias must be demonstrated for the selection of a candidate to be vitiated was again evidenced in Cougar Aviation Ltd. v. Canada (Minister of Public Works and Government Services) (2000), 264 N.R. 49; F.C.J. No. 1946 (QL), where Evans J.A. was of the view that such a proposition "would seem clearly to undermine the merit principle in public service appointments, and candidates' confidence that their applications have been assessed fairly and strictly on their merits" (at para. 33).
[22] As can be seen from the above mentioned cases, there remains some conceptual difficulties as to the type of evidence required to establish bias in the context of a selection process. While the Court of Appeal seems to be of the view that the appearance of a reasonable apprehension of bias may be sufficient in some circumstances, other decisions of this Court stress that "presumptive actual bias" can arise from a reasonable apprehension of bias and clear, independent evidence that the applicant was qualified to succeed in the competition.
[23] I must confess that I am not totally convinced that all these refinements add much to what could already be inferred from the decision of de Grandpré J. in Committee for Justice and Liberty, supra. Commenting on his test for bias in R. v. S.(R.D.), [1997] 3 S.C.R. 484, Justice Cory for the majority wrote (at para. 111) :
This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case.
[24] Be that as it may, I think it is now well settled that actual bias does not have to be demonstrated, and that a reasonable apprehension of bias will suffice if it is borne out and substantiated by the surrounding circumstances. In other words, to borrow from my colleague Tremblay-Lamer J. in Fox, supra, the Applicant must demonstrate a reasonable apprehension of bias, and establish on a balance of probabilities that the way the competition was conducted led to a presumption that bias affected its outcome. The question that must be resolved, therefore, is whether the Appeal Board applied the proper test in coming to its conclusion that the Selection Board was not biased.
[25] As can be expected, the Applicant and the Respondent come to diametrically opposed conclusions with respect to the test applied by the Appeal Board. The Applicant argues that the Appeal Board focused on whether the Selection Board was, in fact, biased, and never tried to assess whether there was a perception of bias. The Respondent, on the other hand, submits that the Appeal Board found that there was no reasonable apprehension of bias and in doing so properly examined the circumstances surrounding the assessment of the Applicant's personal suitability qualifications.
[26] A careful examination of the extract quoted above lends credence to both of these interpretations. The Appeal Board does look at the evidence and at the way the Selection Board came to its final determination. It also finds that there is no reasonable apprehension of bias in the manner in which the Selection Board dealt with the reference information. But despite the fact that the Appeal Board seems to be alive to the two parts of the test, it appears that it collapses the analysis.
[27] Nowhere did the Appeal Board look at the impact of the harassment charge by the Applicant against the Selection Board Chairperson, at the ability of the Selection Board to complete a fair assessment considering its composition, nor at the fact that two of the three references were the Chairperson himself and his Deputy Chief. Those facts, in and of themselves, were certainly sufficient to raise a reasonable apprehension of bias in any reasonable and right-minded person. To paraphrase de Grandpré J., would an informed person think that it is more likely than not that the Board would not decide fairly, consciously or unconsciously? On the face of it, the answer to this question seems pretty obvious; yet, the Appeal Board never framed the question in those terms, and concentrates exclusively on the evidence and testimony to determine whether this apprehension was justified and did indeed have an impact on the selection process. This is made particularly evident by the following sentence on p. 19 of its decision: "Although the appellant has argued that the Board was unduly influenced by the alleged bias by Chief Fallon, I am unable to conclude from the evidence before me that such influence occurred".
[28] As a result, I am driven to the conclusion that the Appeal Board erred in putting too much emphasis on the surrounding circumstances, without ever turning its mind to the first half of the test, that is, whether the Applicant could demonstrate a reasonable apprehension of bias. It may well be that, all things considered, and on the basis of the evidence as to how the process unfolded, this apprehension was not justified with the result that the merit principle was upheld. But these two parts of the analysis should not be confused, lest the Applicant's perception will not be given proper weight.
C) Did the Appeal Board Err in Assessing the Evidence?
[29] There is no doubt in my mind that a reasonable person, appraised of the competition process in the Public Service, of the importance that ought to be accorded to the merit principle, and of the composition of the Selection Board in the present case, would in most likelihood have some apprehension of bias. Not that it is unusual to have a supervisor sitting on a selection board when one or some of the Applicants report to him or her. But when that supervisor has been the subject of a harassment complaint by one of the Applicants, and when the second member of that three member selection board reports directly to this supervisor, an apprehension of bias is certainly not unwarranted prima facie.
[30] Turning now to the actual process followed by the Selection Board and the circumstances surrounding the competition, can it be said that the evidence somehow alleviate the concerns raised by the composition of the Selection Board? Not surprisingly, the Applicant and the Respondent once more differ in their respective assessment of the evidence.
[31] The Applicant insists on the positive performance reviews that she received from January 2001 until March 2003, and on the absence of any explanation for Chief Fallon's change in attitude following her harassment complaint, as evidenced both in his behaviour towards her and in his performance review for the following year. Her lawyer also pointed out that not only Chief Fallon chaired the Selection Board, but he also acted as one of the three referees for the Applicant, along with his Deputy Chief; now, in answer to the question "Would you recommend this person for employment?", both of them replied "No", thereby revealing that they were clearly prejudged in their capacity as selection board member.
[32] The Respondent counters these submissions by stressing that all three of the referees expressed the same concerns over the Applicant's ability to handle situations of conflict. They provided specific examples to support these comments. Counsel for the Respondent added that there was no evidence before the Appeal Board that Chief Fallon was biased against the Applicant or that the Selection Board was unduly influenced by Chief Fallon.
[33] Having carefully considered the record and thought through the arguments made by both parties, I cannot help concluding that there are serious flaws in the Appeal Board's assessment of the evidence. First of all, there is no explanation whatsoever for the radical discrepancy in the performance reviews of the Applicant before and after the complaint was made. Indeed, nowhere do we find in the Appeal Board's decision any comment or evaluation of Chief Fallon's state of mind. And yet, this was critical for a proper analysis of the Applicant's claim that the Selection Board was biased against her. There is only an oblique reference to this crucial factor in the reasons of the Appeal Board, when it writes at page 4 of its decision: "The Appellant's performance was determined to meet all of the standards for the position with specific weaknesses noted in the area of teamwork. No ratings of exceed requirements were provided as relationships had broken down within the unit affecting her performance".
[34] It is not for this Court to come to a definitive conclusion as to Chief Fallon's impartiality, not only because the Appeal Board, having heard the witnesses, was obviously in a better position to appraise the situation, but also because there is no transcript of the hearing. I would be loath to rely on the affidavits filed by the Applicant's representative before the Appeal Board and by Mr. Kirk as an alternative, since they are both no more than the affiants' personal recollection of what took place at the hearing. But it is unfortunate, to say the least, that the Appeal Board did not explicitly comment on this aspect of the Applicant's claim, which was so clearly of relevance for the disposition of the appeal.
[35] But there is more. The presence of Chief Fallon on the Selection Board, and more importantly, his self-selection as a referee was apt to pollute the whole selection process. Memory is indisputably selective, and the assessment of personal qualities is eminently subjective. It was not enough for the Appeal Board to emphasize that all three referees reached a consensus on each of the criteria for personal suitability. Even though each referee filled a separate questionnaire and provided specific examples, one cannot be reasonably certain that they were not influenced, even unconsciously, by the informal discussions they may have had on the Selection Board. This risk is compounded by the fact that the marks were awarded on the basis of a consensus, after a discussion of the information gathered by the referees.
[36] For all these reasons, I come to the conclusion that the circumstances surrounding the selection process, including the way in which the information with respect to the Applicant's suitability was collected and rated, do not dispel the apprehension of bias. On the basis of the record that was before the Appeal Board, I do not think it was reasonable to find that the selection of the successful candidate and the exclusion of the Applicant were based on merit.
[37] I am not prepared to hold, however, that Chief Fallon was necessarily biased or that the selection process was clearly and irrefutably vitiated. It will be for the Appeal Board, directing itself to the proper test of bias, to conduct a further inquiry and determine if the result of the competition should be upheld, bearing in mind the various considerations that I have outlined in these reasons.
[38] Accordingly, I shall grant this application for judicial review, quash the decision of the Appeal Board, and refer the Applicant's appeal back to a differently constituted Appeal Board. No costs will be awarded.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1736-04
STYLE OF CAUSE: Linda Cheney
v.
Attorney General of Canada and Jason Jongen
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 10, 2005
REASONS FOR ORDER: The Honourable Mr. Justice de Montigny
APPEARANCES:
| Mr. Paul Champ
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| Ms. Elizabeth Kikuchi
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FOR THE RESPONDENT, THE ATTORNEY GENERAL |
SOLICITORS OF RECORD:
| Mr. David Yazbeck Raven, Cameron, Ballantyne & Yazbeck Ottawa, Ontario
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| Mr. John H. Sims Deputy Attorney General of Canada Ottawa, Ontario |
FOR THE RESPONDENT, FOR CANADA |