Ottawa, Ontario, February 10, 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
Applicant
and
OF CANADA
REASONS FOR ORDER AND ORDER
OVERVIEW
[1] Dr. Chou is a research scientist employed at the Department of Fisheries and Oceans. He was passed over for a promotion by a Regional Review Committee. His appeal to the Public Service Commission Appeal Board was unsuccessful. This is a judicial review of the Appeal Board's decision.
[2] A brief timeline may be helpful. The Regional Review Committee met in March 2004, and reached its decision that May. The next month, Dr. Chou had a feedback meeting with the Chair and his divisional manager who was also a member of the Committee. Not satisfied, he launched his appeal. In October 2004, the parties met in order to disclose documents which might be filed at the Appeal Board hearing, a hearing which took place in January 2005.
[3] It was Dr. Chou himself who sought the promotion. The promotion was not part of a competition for a limited number of positions. Rather, research scientists achieve certain grades and levels based upon their overall stature and achievement within the ranks of the organization and within the scientific community at large. The application process is quite elaborate and required Dr. Chou to identify his achievements, and his recognition as he perceived it, in considerable detail.
[4] There are a number of incidents taken in the aggregate which Dr. Chou considers troubling. The first is the role of his division manager, Paul Keizer. In his evaluation to the Regional Review Committee, he gave the opinion that Dr. Chou's work lacked "the scientific rigor and interpretations" that characterized the above-average performance required for promotion. He went on to say "however, I am concerned that I may have developed a personal bias in this evaluation." Mr. Keizer also served as a member of the nine person review committee. This was not said to be unusual.
[5] The second incident occurred after the Regional Review Committee's decision but in advance of the hearing before the Appeal Board. The parties met to disclose documents which might be used at the upcoming Appeal Board hearing. One participant, who had been a member of the Regional Review Committee, made disparaging remarks about Dr. Chou's regular participation at the Asian Pacific Environmental Conference. He said this was simply an invitation from his "hometown university".
[6] The third incident occurred during the hearing before the Appeal Board. It permitted the employer, in the person of the Chair of the Regional Review Committee, to produce a document entitled "Res Promotional Evaluation". This document, which plays an important part in this judicial review, is sometimes referred to as exhibit D-12. Unfortunately, but not in bad faith, nearly all the contemporaneous notes made during the Regional Review Committee meeting in March were destroyed. Sometime after the disclosure meeting in October, the Chair, Dr. Sinclair, prepared a note of what he recalls was said to Dr. Chou during the feedback meeting in June 2004. Dr. Sinclair used it when he testified before the Appeal Board.
[7] According to Dr. Chou, these incidents cumulatively add up to breaches of natural justice, or other errors of law.
THE FACTS
[8] Dr. Chou immigrated to Canada from Taiwan in 1971, and has been in the employ of Fisheries and Oceans since 1975. For some years he has been a research scientist at the SE-RES-02 group and level. On a number of occasions, he unsuccessfully applied for promotion to the SE-RES-03 level. This type of promotion within the scientific committee in the federal public service is made on a non-competitive basis pursuant to Section 10(2) of the Public Service Employment Act. Rather than being assessed on the merit principle against other candidates for a limited number of positions, scientists who meet the established criteria are directly promoted.
[9] Candidates for the SE-RES-03 group and level are assessed against five criteria: One is productivity, which is subdivided into publications, review articles and innovations on the one hand, and technology transfer and cooperative research on the other. The other four are creativity, recognition, leadership and decision-making.
[10] Each criterion is assessed on a pass/fail basis except productivity. A candidate must receive a mark at least 6 out of 10, with each subsection marked on 5.
[11] Dr. Chou achieved his current group and level in 1990. Beginning in 1996, he has annually and unsuccessfully applied for promotion to the SE-RES-03 group and level. In the past, his applications had been supported by his division manager, Paul Keizer, but not this time. In his analysis, which led him to state the opinion that Dr. Chou's worked lacked appropriate scientific rigor, he noted that Dr. Chou was held in regard by the organizers of the Asian Pacific Environmental Conference which repeatedly invited him and paid his expenses for attending their annual meetings. However, within Fisheries and Oceans itself, although his excellence as an analyst was recognized, he was unable to convince his peers of the value of his research proposals, some of which were regularly rated poorly by the Technical Review Committee. Although Mr. Keizer stated that he may have developed a personal bias in the evaluation, he also said "I ask you to give special attention to this application and if possible take time to read one or more of his current publications." Mr. Keizer was of the view that although the number of Dr. Chou's publications had increased, the quality had not.
[12] The Regional Review Committee found he met the criteria for recognition in the scientific community and in decision-making. However, he failed to make the grade in creativity and leadership. As regards productivity, he was given 3 out of 5 for primary publications, but only 2 out of 5 for technology transfer. Since a total of 6 points was required, he fell short in this category as well.
[13] After being turned down by the Regional Review Committee, Dr. Chou asked for a meeting with the committee chair, Dr. Sinclair, and with Mr. Keizer. They complied. Dr. Sinclair reviewed the five criteria and explained how the committee reached a consensus.
[14] Following that meeting, Dr. Chou exercised his right to appeal under Section 21 of the Public Service Employment Act. The Appeal Board carries out an inquiry at which both the person appealing and the deputy head concerned, or representative, is given an opportunity to be heard. The Public Service Employment Regulations require full disclosure of information and documents that contain information pertinent to the appellant's appeal, and that may be presented before the Appeal Board.
[15] This disclosure often takes place at a face to face meeting which may lead to further dialogue and settlement of the dispute. One of the Review Committee members, Dr. Chadwick, participated by telephone. He downplayed the recognition Dr. Chou enjoyed at the Asian Pacific Environmental Conference because it is held at the Sun Yat Sen University in Taiwan from where Dr. Chou originates. However, that University had not been created when Dr. Chou immigrated to Canada in 1971. Although Dr. Chadwick did not testify at the subsequent Appeal Board hearing, Dr. Sinclair did and explained that the comment was a reflection of a concern that the committee had had about the relative role of personal relationships compared to a broad-based community recognition. However it turns out, and was properly noted by the Appeal Board, that Dr. Chou was first invited to the APEC conference by a visiting scholar to Canada.
[16] Both Dr. Sinclair and Mr. Keizer testified before the Appeal Board. The employer was faced with three allegations. The first was Mr. Keizer's negative appraisal, which Dr. Chou submitted was biased and inflammatory, and which appeared to have influenced at least one member of the Regional Review Committee, Dr. Chadwick, as borne out by his comment during the disclosure meeting. The second was that the Regional Review Committee failed to keep notes of the Committee's deliberations. The third was that the merit principle of promotion had been violated by the Regional Review Committee's focus on specific areas of Dr. Chou's work rather than the totality thereof.
[17] The hearing lasted two days. Toward the end of the first day, Dr. Sinclair proffered his "RES promotion evaluation" over the protests of Dr. Chou's representative. It was nevertheless allowed in as exhibit D-12. The Appeal Board understood it had not been prepared contemporaneously with the Review Committee's deliberations, that it purported to be a reflection of what Dr. Sinclair recalled telling Dr. Chou in June about the Committee's deliberations in March, was not previously disclosed, and in fact had only been created some time after the disclosure meeting which took place on 8 October 2004. The Appeal Board said these considerations would have to be taken into account in assessing the weight to be given to the document. Dr. Sinclair relied upon D-12 in giving his testimony.
[18] Although Dr. Chou protested, he did not seek an adjournment.
[19] The Appeal Board did not find that the Regional Review Committee was unreasonable in its assessment of Dr. Chou or unable to substantiate its conclusions. "The documentary evidence, together with the testimony of Dr. Sinclair (as Chairperson of the Regional Review Committee) and of Mr. Keizer (the appellant's manager and also a Committee member) has satisfied me as to the propriety and reasonableness of the Committee's overall assessment of appellant Dr. Chou's application for promotion to the SE-RES-03 level of research scientist." More particularly, Mr. Keizer's comments were not found to be inflammatory or to exhibit bias. The selection process required him as the accountable manager to review the application and to prepare his written comments with recommendation. He was required to be even-handed. He even recognized the possibility that he "may have developed a personal bias in this evaluation" and asked the Committee to be especially attentive. He testified, and was cross-examined. The Appeal Board found his testimony to be "credible and trustworthy".
[20] As to the impugned comment of Dr. Chadwick at the pre-hearing disclosure, that statement was made some months after the assessment and related to the requirement of "recognition", a criterion which the Committee determined Dr. Chou had met. It could have had no significant bearing on the overall negative decision. The Appeal Board reviewed the case law and noted that the proper test, when considering allegations of bias on the part of a selection board, as opposed to an administrative tribunal carrying out a quasi-judicial function, requires that there be actual bias, not simply a reasonable apprehension of bias, although that actual bias may take the form of a "presumptive actual bias".
[21] Unfortunately, the members' notes taken during the Regional Review Committee's meeting had been discarded mistakenly and inadvertently. There is no suggestion of bad faith. It was noted that the only available written explanation of Dr. Chou's assessment, exhibit D-12, came into being much later and was specifically prepared for the purpose of the appeal hearing itself. Notwithstanding the loss of the contemporaneous notes, the Committee's assessment decisions were explained in some detail by both Dr. Sinclair and Mr. Keizer. Dr. Chou had been provided with verbal explanations following the assessment, and again at the pre-hearing disclosure. The Appeal Board closed off this allegation by saying: "In the present circumstances, the oral testimony of Dr. Sinclair (as Committee Chairperson) and of Mr. Keizer (as the appellant's manager and a Committee member) have enabled a satisfactory understanding of the Committee's assessment of Dr. Chou's qualifications. I have concluded that Dr. Chou's assessment was based on a consideration of all the material provided in his promotional application vis-à-vis the selection criteria pertaining to the position of research science at the SE-RES-03 level. From the evidence, I find no basis for concluding that the assessment was improper or unreasonable or was not made according to merit, which is the essential concern of the Public Service Employment Act and of this appeal board."
[22] Finally the third allegation was dismissed as the Appeal Board was satisfied that Dr. Chou and the other candidates whose promotions were being considered at the same time were assessed on the same standards and rating criteria. His qualifications were assessed having regard to the entirety of his scientific career in the Public Service.
ISSUES
[23] Dr. Chou raises the following three issues:
a) What is the appropriate standard of review of the decision of the Appeal Board?
b) Did the Appeal Board make a reviewable error by admitting into evidence the notes made by Mr. Sinclair to prepare for the hearing?
c) Did it make a reviewable error in concluding that the Regional Review Committee properly considered Dr. Chou's candidacy. More particularly, was it tainted by the remarks of Mr. Keizer and Dr. Chadwick?
STANDARD OF REVIEW
[24] The Appeal Board's decision, like all decisions of federal boards and tribunals, is judicially reviewed on a pragmatic and functional basis. The standard of review when applied to decisions of the Public Service Commission Appeal Board was considered last year by the Federal Court of Appeal in Davies v. Canada (Attorney General) 2005 FCA 41, [2005] F.C.J. No. 188. Chief Justice Richard noted that the primary purpose of the Act is to safeguard the public interest by ensuring that appointments are based on merit and free of discrimination and partisanship. Taking into account the absence of a privative clause, the relative expertise of the Board and the nature of the questions involved, I am satisfied that findings of fact should not be disturbed unless patently unreasonable; that decisions in law, including procedural fairness and other aspects of natural justice, must be correct; and that issues of mixed fact and law are reviewed on a reasonableness simpliciter standard.
ADMISSABILITY OF DR. SINCLAIR'S NOTES
[25] Natural justice requires that a party know the case he has to meet. The Regulations require full disclosure of documents which may be used. It is implicit that if a document was not in existence when disclosure was first made, there is an ongoing obligation to disclose promptly. The employer, through Dr. Sinclair, failed in this regard.
[26] The decision to allow in exhibit D-12 was a discretionary one, made during a hearing. Some deference is owed discretionary decisions. It has not been suggested that the disclosure rules were such that a failure to timely identify a document constituted an absolute bar to its production. Indeed, such a bar would be unusual in that procedure before administrative boards is usually more relaxed than that which prevails in Court, provided always, of course, that the exigencies of procedural fairness are met. Although the Rules of this Court require full disclosure in advance, the Court may order otherwise (Rule 232). The Court might in its discretion allow a document in on conditions. For instance, the Court might order an adjournment coupled with further discovery and cross-examination.
[27] The situation is somewhat analogous to the standard on appeals from orders of Prothonotaries (Federal Court Rule 51). A discretionary order should not be disturbed unless clearly wrong in that the exercise was based on a wrong principle or a misapprehension of the facts, or was improperly exercised on a question vital to the final issue (Canadav. Aqua-Gem Investments Ltd (C.A.), [1993] 2 F.C. 425, Z.I. Pompey Industrie v. Ecu-Line N.V., [2003] 1 S.C.R. 450, Merck & Co., Inc. v. Apotex Inc. (F.C.A.) 2003 FCA 488, [2004] 2 F.C.R. 459).
[28] I am satisfied that the Appeal Board's discretion was not wrongfully exercised. Not only did Dr. Chou not seek a postponement, but the document is to a large extent a précis of Dr. Chou's own application material. There is nothing to suggest that the Board misapprehended the facts or exercised its discretion upon a wrong principle.
WAS DR. CHOU'S CANDIDACY PROPERLY CONSIDERED?
[29] Dr. Chou asserts that Mr. Keizer's assessment coupled with Dr. Chadwick's comments had an overflow effect. Even though Dr. Chou made the grade in the recognition category, Mr. Keizer's "bias" remark and Dr. Chadwick's disparaging hometown remark had to have a negative impact when other criteria were being considered. Two standards of review must be considered. Procedural fairness is not actually subject to the pragmatic and functional approach to judicial review, but is quite distinct. The Courts must safeguard natural justice and so owe no deference to the decisions of federal boards and tribunals which are reviewed (Canadian Union of Public Employees (C.U.P.E.) v. Ontario(Minister of Labour), [2003] 1 S.C.R. 539). Put another way, the decision is reviewed on a correctness standard (Sweet v. Canada(Attorney General), 2005 FCA 51, [2005] F.C.J. No. 216, (2005) 332 N.R. 87). The Board also had the great advantage of hearing from Dr. Sinclair and Mr. Keizer, and found them to be trustworthy and credible. Findings of fact are not disturbed unless patently unreasonable.
[30] I first analyzed the bias allegation against the rigorous standard applied to judges, which is not only based on actual bias, but also upon reasonable apprehension of bias. The seminal test was enunciated by Mr. Justice de Grandpré in Committee for Justice and Liberty v. Canada(National Energy Board, [1978] 1 S.C.R. 369. He said at pages 394 and 395:
"...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. In the words of the Court of Appeal, that test is "what would a informed person, viewing the matter realistically and practically--and having thought the matter through--conclude.
...
I can see no real difference between the expressions found in the decided cases, be they 'reasonable apprehension of bias', 'reasonable suspicion of bias, or 'real likelihood of bias'. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience"
This is the proper approach which, of course, must be adjusted to the facts of the case. The question of bias in a member of a court of justice cannot be examined in the same light as that in a member of an administrative tribunal entrusted by statute with an administrative discretion exercised in the light of its experience and of that of its technical advisers."
[31] Although he was speaking in dissent in that case, Mr. Justice de Grandpré's comments have set the standard ever since.
[32] The Appeal Board found no reasonable apprehension of bias. I agree. It is convenient to then consider actual bias against the standard the cases have held applies to a selection committee not exercising a judicial or quasi-judicial function. In Canada (Attorney General) v. Mirabelli, [1987] F.C.J. No. 142 (QL), the Federal Court of Appeal held that a reasonable apprehension of bias was insufficient to vitiate an appointment, as long as the selection process was driven by merit and there was no evidence on the face of the record that bias actually influenced the outcome. However, a "presumptive actual bias" test was later developed in recognition of the fact that actual bias is often difficult to prove by way of direct evidence. A reasonable apprehension of bias, combined with surrounding circumstances could satisfy Mirabelli (Hnatiuk v. Canada (Treasury Board), [1993] F.C.J. No. 703 (QL) and Fox v. Canada, [2004] F.C.J. No. 1172 (QL)). As stated by the Federal Court of Appeal in Arthur v. Canada(Attorney General) 2001 FCA 223, [2001] F.C.J. No. 1091 (QL) per Mr. Justice Létourneau at paragraph 8:
"...An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard. It is often useful, and even necessary, in doing so, to resort to evidence extrinsic to the case. That is why such evidence is admissible in derogation of the principle that an application for judicial review must bear on the matter as it came before the court or tribunal."
[33] The Appeal Board was very much alive and alert to this issue, and its conclusion is beyond reproach. Finally, it was not the role of the Appeal Board to reassess Dr. Chou's candidature, or to substitute its opinion for that of the Regional Review Committee. It could only intervene if the decision it was reviewing was unreasonable. In Blagdon v. Canada(Public Service Commission, Appeals Board), [1976] 1 F.C. 615 (F.C.A.), Mr. Justice Pratte said this at paragraph 21:
"...Its duty is not to re-assess the candidates but to conduct an inquiry in order to determine whether the selection has been made in a way consistent with the merit principle; its decision is to be made on "a judicial or quasi-judicial basis". 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."
[34] Consequently, this application for judicial review should be dismissed. There is no reason why the respondent should not have costs.
ORDER
THIS COURT ORDERS that the application for judicial review of the decision of the Public Service Commission Appeal Board, dated 25 January 2005, not to allow the appeal of the applicant, Dr. Chiu L. Chou, from the decision of the Regional Review Committee not to promote him to the SE-RES-03 group and level, is dismissed with costs.
"Sean Harrington"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-378-05
STYLE OF CAUSE: CHIU L. CHOU
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 1, 2006
APPEARANCES:
| Mr. Christopher Rootham
|
|
| Mr. Michael Roach
|
SOLICITORS OF RECORD:
| Nelligan O'Brien Payne Barristers & Solicitors Ottawa, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada
|