Shea v. Canada (Attorney General), 2006 FC 859

Date: 20060710

Docket: T-1751-05

Citation: 2006 FC 859

Ottawa, Ontario, July 10, 2006

PRESENT:      The Honourable Madam Justice Mactavish

BETWEEN:

DAVID SHEA, EARL BOYCHUK, STEVEN HARPER,

AMY WANG, TONY PINGITONE, SPERANZA MCDOWELL,

SUKHBIR HANSPAL, SUBASH CHABAR,

DHANRAG DEONARINE, CAROLE MEKEE, AVNI RUPARELL,

JOYCE ORG, GIACINTO CALABRA, ROMINA KASSAM,

ENOKA FERNANDO, AMIN GANGJI, SHYAMI NAMASIVAWAM,

MIREILLE BASSIL, GEORGETTE ANPOND, DEMY ALMARIO,

PAUL KOHUT, PATRICK LEONARD, KENT GREENIAUS,

ANITA DUBEY, RIBINA ERMAIL, PRESLEY BACCHUS,

SANTA PATHALE, SAVITA PATHAK, KAREN CONZEN KORFMANN,

CHRISTINE OSTRYHON, JIM SMITH

Applicants

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]                It is a fundamental principle of government staffing, say the applicants, that all candidates for the same positions within government agencies should be assessed in a consistent manner, against the same criteria. By this application for judicial review the applicants seek to set aside what they say was a decision on the part of the Agency to use different criteria in an external competition or "staffing process" than were used in an internal staffing process, when both processes were used to select Tax Auditors at the AU-02 level for the Agency's Southern Ontario region. The applicants also ask for a declaration that, from this point forward, the criteria used to select Tax Auditors at the AU-02 level should be the same, regardless of whether the recruitment is done through internal or external staffing processes.

[2]                For the reasons that follow, I am of the view that this application is premature, and accordingly, this application will be dismissed.

Background

[3]                As a result of a lengthy freeze on external recruitment, coupled with normal employee attrition, the Canada Revenue Agency needed to hire approximately 300 Tax Auditors at various levels in southern Ontario.

[4]                In April of 2005, the Toronto West Tax Service Office of the Agency initiated a staffing process to fill Tax Auditor positions at the AU-02 level. The Toronto West Tax Service Office is part of the Agency's Southern Ontario Region.

[5]                This process was one of a number of staffing processes that were carried out by individual Tax Service Offices in Southern Ontario in an effort to fill the vacant Tax Auditor positions. The process was only open to current employees of the Agency occupying positions in the Toronto West Tax Service Office, and was identified as competition 2005-3891-SOR-1262-3005. It will be referred to in this decision as the "internal staffing process".

[6]                Management of the Agency's Toronto West Tax Service Office identified the educational and experience qualifications that candidates were required to possess, and, in addition, specified the assessment tools that would be used in order to evaluate the candidates' qualifications against the qualifications established for the position in accordance with the Agency's Competency Based Human Resource Management System (the "CBHRM system").

[7]                For the purposes of this application "competency" is defined as "any measurable or observable skill, ability, knowledge, or behavioural characteristic that contributes to successful performance".

[8]                The internal staffing process assessed candidates in relation to the following seven competencies:

            (i)          Client service orientation;

            (ii)         Analytical thinking;

            (iii)        Effective interactive communication;

            (iv)        Decisiveness;

            (v)         Writing skills in English;

            (vi)        Legislation, policies and procedures; and

            (vii)       Planning, organizing and/or monitoring results.

[9]                The Agency used four tools to assess these seven competencies: namely, a Portfolio of Competencies, a Targeted Behavioural Interview, a Written Skills Test, and non-standardized pencil and paper tests.

[10]            The internal staffing process was a "Pre-qualification Process" (or "PQP"). That is, not only would the assessment results be used to fill the vacancies at the AU-02 level in the Toronto West Tax Service Office, the assessment results would be "portable", meaning that they could also be used for other PQPs, as well as for a variety of other human resources purposes.

[11]            As of the date that this application for judicial review was commenced on October 7, 2005, the assessment of candidates for the internal staffing process was ongoing.

[12]            In August of 2005, an external recruitment process was initiated at the Regional level in order to identify a pool of qualified candidates which could be drawn from in order to fill Tax Auditor positions at the AU-01, -02, -03 and -04 levels in the various Tax Service Offices in the Agency's Southern Ontario Region.

[13]            This process was initiated as the Agency had been unable to fill all of the Tax Auditor vacancies in the Southern Ontario Region through internal staffing processes, including the one run by the Toronto West Tax Service Office.

[14]            The applicants do not take issue with the right of the Agency to initiate an external staffing process in this case.

[15]            The external recruitment process was identified as competition 2005-4380-SOR-1263-9001, and was open to anyone living within the Southern Ontario Region, whether currently employed by the Agency or not. It will be referred to in this decision as the "external staffing process".

[16]            The educational and experiential qualifications stipulated for the external staffing process were essentially the same as for the internal staffing process run by the Toronto West TSO, taking into account the fact that external candidates could not be expected to have Agency experience. However, on September 11, 2005, the Agency advised the Professional Institute of the Public Service, the bargaining agent for Tax Auditors, that the assessment tools to be used in the external process would be different.

[17]            That is, candidates involved in the external staffing process were only assessed in relation to four competencies:

            (i)          Effective interactive communication;

            (ii)         Analytical thinking;

            (iii)        Tax planning; and

            (iv)        Supporting Canada Revenue Agency values.

[18]            The assessment of candidates was not to be carried out using the Competency Based Human Resource Management System, as the system has not yet been developed to the point that it could be used for external staffing processes. The CBHRM system puts great emphasis on internal Agency values, and requires that competency consultants check candidates' responses with their Agency managers and colleagues. Such a process would not be appropriate for candidates applying from outside the Agency, whose supervisors may not be aware of the fact that their employees are looking for a new job. As a consequence, the CBHRM system is currently only used by the Agency in internal staffing processes.

[19]            The external staffing process was to be used to create a pool or inventory of candidates from which individual Tax Service Offices could then look to when filling a specific vacancy. Once a Tax Service Office decided to fill a particular Tax Auditor position, individuals would be referred to the Office from the pool of candidates. The Tax Service Office in question would then carry out its own further assessment of the eligible candidates, using whatever additional qualifications or competencies that the Tax Service Office deemed to be appropriate in light of the precise nature and level of the particular position on offer, and the specific business needs of the Tax Service Office in question.   

[20]            It was also open to each Tax Service Office to develop local tests or to apply one or more of the available standardized tools, if appropriate.

[21]            The external staffing process closed on September 2, 2005, and the assessment of candidates was still ongoing at the time that this application for judicial review was commenced on October 7, 2005. Moreover, there is no indication in the record that any external candidates had gone on to be assessed by a Tax Service Office for a specific AU position as of the time that the application for judicial review was initiated.

[22]            Agency employees were at liberty to apply for positions through the external staffing process. However, the applicants say that internal candidates would, in reality, be at a disadvantage in applying for a promotion through the external staffing process, as they would not already possess the requisite experience performing the tasks associated with the higher level position. That said, there is nothing to suggest that an internal candidate who had gained experience at a higher level through, for example, an acting appointment, would be at any disadvantage in the external staffing process.

[23]            The applicants applied for AU-02 positions through both staffing processes. It does not appear that, as of the time that the application for judicial review was commenced, any decision had been made with respect to their candidacies, at least in relation to the external staffing process.

[24]            According to the applicants, by assessing the candidates for AU-02 positions in the external process against different standards than those that were used in the internal staffing process run by the Toronto West TSO for Tax Auditors at the AU-02 level, the Agency breached its Staffing Policy. In particular, the applicants say that the external hiring process was unfair.

[25]            The respondent submits that there has been no "decision" taken in this case that is amenable to judicial review. In this regard, the respondent asserts that the choice of assessment tools to be used in the two staffing processes in question was a management choice, as opposed to a "decision" within the meaning of section 18.1 of the Federal Courts Act.

[26]            To the extent that there may have been a "decision" made in this case, the respondent submits that any such decision is not justiciable as what was involved was an exercise of management discretion.

[27]            In the alternative, if there was a decision that is justiciable, the respondent submits that the applicants' application for judicial review should be dismissed on the basis that it is premature.

[28]            Finally, the respondent asserts that there were legitimate reasons for using different assessment tools for the external and internal staffing processes, and that, in all of the circumstances, the Agency's choice of assessment tools was eminently reasonable

The Agency's Staffing Policy and Procedures

[29]            In order to situate the issues raised by this application, it is necessary to have an understanding of the Agency's staffing policy and procedures.

[30]            The Agency was established in 1999 and was originally known as the Canada Customs and Revenue Agency. Subsection 53(1) of the Canada Customs and Revenue Agency Act (CCRA) vests in the Agency the exclusive right and authority to appoint its employees. Subsection 54(1) of the Act requires the Agency to "develop a program governing staffing, including the appointment of, and recourse for, employees".

[31]            Staffing in the Agency is carried out in accordance with a Staffing Program established in accordance with section 54 of the CCRA.

[32]            The parties agree that this program has been accurately described by Justice Russell in Professional Institute of the Public Service of Canada v. Canada (Customs and Revenue Agency) [2004] F.C.J. No. 649, 2004 FC 507, and I reproduce the relevant portions of his summary here:

¶ 16       The Program describes the processes used by the Agency to fill positions within the Agency and the recourse available to employees affected by those processes. It consists of program components, approved by the Agency's Board of Management, which deal with specific topics such as delegation of authority, staffing processes and recourse for staffing; it also contains staffing directives approved by the Public Service Commissioner on related topics that are attached as annexes to the Program.

¶ 17       Parliament has also authorized the Agency to establish staffing principles in its corporate business plan to govern the Program. The Agency's staffing principles are as follows:

Non-partisanship: The workforce must conduct itself in a manner that is free from political and bureaucratic influence. Staffing decisions must be free from political and bureaucratic influence.

Representativeness: The composition of our workforce reflects the available labour market.

Competency: The workforce possesses the attributes required for effective job performance.

Fairness: Staffing decisions are equitable, just and objective.

Transparency: Communications about staffing are open, honest, respectful, timely and clearly understood.

Efficiency: Staffing processes are planned and conducted having regard to time and cost, and linked to business requirements.

Adaptability: Staffing processes are flexible and responsive to the changing circumstances and to the unique or special needs of the organization.

Productiveness: Results in appointment of the necessary number of competent people for the proper conduct of business.

¶ 18    The [Public Service Employment Act] does not apply to staffing in the Agency and the Public Service Commission ("Commission") has no authority over the appointment process. However, under ss. 56(2) of the CCRAA, the Commission may periodically review the compatibility of the Agency's staffing principles with those governing staffing under the PSEA.

[33]            According to the applicants, the decision to use different criteria and tools in the external staffing process than those used in the internal staffing process violates the Agency's own staffing principle of "fairness". Moreover, the applicants say, it was patently unreasonable to assess candidates for the same positions against different standards, using different tools. Finally, the applicants say that the Agency violated two provisions in its Staffing Program when using different criteria and tools in the external staffing process: that is, it failed to use the required standardized assessment tools, and breached its obligations to give priority to internal candidates ahead of external candidates.

Issues

[34]            The issues raised by this application are:

            1.        Has there been a "decision" made by the Agency within the meaning of         

                        section 18.1 of the Federal Courts Act?

            2.          If there has been a decision, is it justiciable?

            3.          If there has been a justiciable decision, is the applicants' application for judicial review premature, or is the evidence insufficient for a judicial determination?

            4.          If the application for judicial review is not premature, what is the appropriate standard of review to be applied to the decision in question? and

            5.          Was the agency's decision patently unreasonable?

[35]            I will deal first with the question of standard of review.

Standard of Review

[36]            The parties are in agreement that insofar as the merits of this application are concerned, the choice of assessment tools made by the Agency should be accorded considerable deference, and should be reviewed against a standard of patent unreasonableness. I agree that the choice of assessment tools is a non-legal question, one that is heavily dependant upon an understanding of the Agency's internal needs, and one that is not within the expertise of this Court. As a consequence, I agree with the parties that the choices made by the Agency should thus be accorded the highest degree of deference.

[37]            That said, the respondent raises a number of challenges to the applicants' ability to bring this application, matters that were not in issue before the Agency, and thus there is no decision in this regard to review. Rather, the Court must make its own determination as to whether any of these challenges can succeed.

[38]            The first of these challenges involves the respondent's assertion that there is no "decision" of the Agency that is amenable to judicial review under the provisions of section 18.1 of the Federal Courts Act. This issue will be considered next.

Has There Been A "Decision" Made By The Agency Within The Meaning Of Section 18.1 Of The Federal Courts Act?

[39]            The respondent says that there has been no decision made by the Agency in this case that is capable of being reviewed by this Court. In support of this contention, the respondent points to the fact that the applicants have not identified the decision in issue, nor have they indicated who made the decision, or when it was made. Rather, the applicants have attempted to compare two different staffing processes conducted by different offices, for different purposes, in different places, at different times.

[40]            According to the respondent, any differences between the two staffing processes chosen for comparison are the product of independent considerations by different persons, and not a conscious choice from among alternatives by a single decision-maker.

[41]            In considering this issue, the starting point must be the wording of section 18.1 of the Federal Courts Act itself, the relevant portions of which provide that:

[42]            The absence of a "decision" is not a bar to an application for judicial review under the Federal Courts Act, as Section 18.1 provides the Court with jurisdiction to grant relief to a party affected by "a matter" involving a federal board, commission or other tribunal: Canadian Museum of Civilization Corp. v. Public Service Alliance of Canada, Local 70396 [2006] F.C.J. No. 884, 2006 FC 703, at ¶ 47.

[43]            The role of this Court thus extends beyond the review of formal decisions, and extends to the review of "a diverse range of administrative action that does not amount to a 'decision or order', such as subordinate legislation, reports or recommendations made pursuant to statutory powers, policy statements, guidelines and operating manuals, or any of the myriad forms that administrative action may take in the delivery by a statutory agency of a public programme.": Markevich v. Canada, [1999] 3 F.C. 28 (QL) (T.D.), at ¶ 11, reversed on other grounds, [2001] F.C.J. No. 696, reversed on other grounds, [2003] S.C.J. No. 8. See also Nunavut Tunngavik Inc. v. Canada(Attorney General) [2004] F.C.J. No. 138, 2004 FC 85, at ¶ 8.

[44]            A wide range of administrative actions have been found to come within the Court's jurisdiction: see, for example Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services), [1995] 2 F.C. 694; Morneault v. Canada (Attorney General), [2001] 1 F.C. 30 (C.A.), and Larny Holdings (c.o.b Quickie Convenience Stores) v. Canada (Minister of Health), [2003] 1 F.C. 541 (T.D.) .), 2002 FCT 750.

[45]            The administrative action that is sought to be reviewed in this case flows from the Agency's statutory power to appoint its employees. In all of the circumstances, I am satisfied that the "matter" in question here comes within section 18.1 of the Federal Courts Act.

If There Has Been A "Decision" Is It Justiciable?

[46]            The respondent submits that in the event that it is determined that there has been a "decision" made in this case, this application should nevertheless be dismissed, as what are in issue are management decisions that are non-justiciable.

[47]            According to the respondent, the choice of qualifications is not subject to any legal standards or constraints against which management's conduct can be measured. Rather, the respondent says, the correct answer is dictated by the business needs of the Agency.

[48]            In support of its contention that the "decision" in issue here is not justiciable, the respondent relies on the decision of the Federal Court of Appeal in Chiasson v. Canada (2003), 226 D.L.R. (4th) 351. A review of the Chiasson decision discloses that it does not assist the respondent. Not only are the facts readily distinguishable from those in the present case in that it dealt with the awarding of decorations for bravery, what the Court found to be non-justicable in Chiasson was not the establishment of selection criteria, but the ultimate determination of the merits of a specific application, a determination which involved the exercise of the royal prerogative.

[49]            Insofar as the establishment of selection criteria was concerned, the Federal Court of Appeal found that it was not "plain and obvious" that the procedures and criteria followed were not justiciable.

[50]            A review of the jurisprudence on this issue discloses that Courts have indeed generally held that government departments (and, by extension, agencies) have the sole authority to establish selection qualifications: see, for example, Canada(Attorney General) v. Viola, [1990] F.C.J. No. 1052 (FCA).

[51]            While the choice of qualifications for a position is indeed a management function, it does not follow that management's choices will always be immune from judicial scrutiny. Indeed the Federal Court of Appeal noted in the Viola case previously cited that:

This means that the department must account not to the appeal board but rather to the Federal Court Trial Division, as in Kelso, if it commits an impropriety or illegality in determining the necessary conditions. In Gariepy v. Administrator of the Federal Court of Canada, [Footnote: Unreported judgment rendered on November 6, 1987, No. T-2014-87. I make no ruling as to the merits of this decision in other respects] Muldoon J. expressed a similar opinion at 17:

The plaintiff here does not dispute the principle enunciated in the Bauer case . . . referred to by Thurlow C.J. in Ricketts, that the power to determine the qualifications for a position is inherently a function of management. He does challenge the fairness and reasonability if any, or legality, of the determination of the "bilingual imperative" qualification for the position of district administrator in Vancouver; but he cannot do so within the provisions of the Public Service Employment Act, according to the Ricketts judgment. Thus, the plaintiff has no recourse other than to commence and to prosecute this action for declaratory and injunctive relief.

While these comments were made in the context of staffing actions that were subject to the Public Service Employment Act, they are equally apposite here.

[52]            As a consequence, I am not persuaded that the issues raised by this application are not justiciable. This is especially so where, as here, it does not appear that there is any other form of recourse available to the applicants.

If There Has Been a Justiciable "Decision", Is The Applicants' Application For Judicial Review Premature?

[53]            After carefully considering the parties' submissions, and the facts of this case, I am satisfied that this application for judicial review must be dismissed on the basis that it is premature.

[54]            There is no doubt that candidates for AU-02 positions in the internal staffing process run by the Toronto Service Office were assessed against competencies that were not required of candidates for AU-02 positions in the external staffing process. By way of example, the additional competencies required of candidates in the internal staffing process included skill in writing in English, as well as knowledge of tax legislation, policies and procedures.

[55]            That said, I agree with the respondent that one cannot simply compare the competencies required of candidates in the internal staffing process to those required of candidates participating in the external staffing process and find that candidates participating in the internal process were treated unfairly. This is because the external staffing process was not complete at the time that the application for judicial review was commenced.

[56]            No one was going to be hired by the Agency as a result of the external staffing process until such time as individuals in the pool of candidates identified through the external staffing process were referred to a Tax Service Office for further assessment in accordance with whatever additional criteria the individual Tax Service Office deemed appropriate, having regard to the Office's specific business needs. At this point, we have no way of knowing whether these candidates will ultimately be required to demonstrate their proficiency in matters such as written English or their knowledge of tax legislation, policies and procedures.

[57]            Indeed, it is entirely possible that, at the end of the day, candidates hired through the external staffing process will be assessed against other, potentially more rigorous standards than those that were imposed upon candidates in the internal staffing process, although we cannot yet know if this will be the case.   

[58]            As a result, until both sets of candidates have been fully assessed, it is impossible to know whether the criteria used in one selection process were more or less rigorous than those used in the other, or whether at the end of the day they turned out to be essentially the same.

[59]            In addition, because it is open to each Tax Service office to develop local tests, or to apply one or more of the available standardized tools, we also do not yet have a clear picture of what the full range of assessment tools are that will be used in the complete process used to fill specific Tax Auditor positions through the external staffing process.    Nor do we have any way of assessing how those tools will compare to the CBHRM system.

[60]            It is also not possible to say with any certainty, as of the date that the application for judicial review was commenced, how any of the applicants will ultimately fare in the external staffing process. While the applicants contend that internal candidates will be at a disadvantage in the external staffing process, as they would not already possess the requisite experience performing the tasks associated with the higher level position, as of the time at which the application for judicial review was commenced there had been no evaluation done of the applicants' experience, and no determination made as to whether any of the applicants had in fact gained the necessary experience through something such as an acting appointment.

[61]            In these circumstances, to say that none of the applicants would qualify through the external staffing process is, in my view, speculative at best.

Conclusion

[62]            For these reasons, I am satisfied that this application for judicial review should be dismissed on the grounds that it is premature. Both parties agree that costs should follow the event, on the ordinary scale, and I so order.

           

[63]            As a result of my finding on the question of prematurity, it is not necessary to address the question of whether the internal staffing process for Tax Auditors at the AU-02 level run by the Toronto West Tax Service Office can indeed be properly compared to the external staffing process for Auditors at a range of different levels run by the Agency's Southern Ontario region. Suffice it to say that nothing in these reasons should be interpreted to say that this is indeed an appropriate comparison. The determination of that question is best left to another day.

JUDGMENT

THIS COURT ORDERS AND ADJUDGES that this application is dismissed, with costs.

"Anne Mactavish"

Judge

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-1751-05

STYLE OF CAUSE:                           DAVID SHEA & OTHERS v.

                                                            ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                     Ottawa, Ontario

DATE OF HEARING:                       May 24, 2006

REASONS FOR JUDGMENT

AND JUDGMENT:                          Mactavish J.

DATED:                                              July 10, 2006

APPEARANCES:

Dougald Brown & Chris Rootham	FOR THE APPLICANTS
Sanderson Graham	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Nelligan O'Brien Payne LLP	FOR THE APPLICANTS
John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice	FOR THE RESPONDENT