Date: 20061030
Docket: T‑1268‑05
Citation: 2006 FC 1308
Ottawa, Ontario, the 30th
day of October 2006
Present: the Honourable
Mr. Justice de Montigny
BETWEEN:
GUY
BEAULIEU
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant Guy Beaulieu has been employed by the Canada Customs and Revenue
Agency (CCRA) since it was created on November 1, 1999. He previously
worked for the Canada Department of National Revenue, which was replaced by the
CCRA when the Canada Customs and Revenue Agency Act, S.C. 1999, c. 17,
was adopted. His candidacy was rejected for a level AU‑2
Auditor/Investigator position; he first asked for individual feedback and then
a review of the decision, both of which resulted in the original decision being
upheld.
[2]
By this
application for judicial review, Mr. Beaulieu is seeking to reverse the
decision made in the review process on the ground that the Director of the
Eastern Quebec Taxation Services Office erred in not concluding that the
assessment made of his competencies was arbitrary. Consequently, he asked that
his review request be sent to another manager to be reassessed.
FACTS
[3]
Mr. Beaulieu
studied accounting and administration at Université Laval, as a result of which
he became a member of the Ordre des comptables en management accrédités (CMA).
Since January 2000, he has held various AU‑1 Auditor/Investigator
positions; then, as of January 12, 2004, he was assigned to an AU‑2
position until December 31, 2004.
[4]
On
November 25, 2004, CCRA posted a notice of job opportunity to fill a
position of Auditor/Investigator, level AU‑2, Investigations Division,
Quebec Taxation Services Office, having selection number 2004‑3554‑QUE‑1206‑1002.
The applicant submitted his candidacy for this position on November 30, 2004.
[5]
On
December 20, 2004, CCRA notified the applicant that his candidacy met the
prerequisites for the position and that his candidacy would be considered at
the next stage, that of assessment.
[6]
In
December 2004 and January 2005, CCRA gave candidates information on
the way in which their competencies would be assessed. Candidates were given a
session and they were sent documentation by electronic means so that they could
prepare for the assessment.
[7]
On
January 6, 2005, the applicant was invited to a targeted behavioural
interview to be held on January 25. Robert Pelchat, a certified competency
consultant with CCRA, indicated to him the competencies that would be assessed
at the interview, namely, adaptability, effective interactive communication,
control of difficult situations, and analytic reasoning, and he suggested that
the applicant consult the Infozone for the definitions of these competencies.
[8]
Then,
following the interview, the applicant submitted his competency portfolio
within the required time limits, so that the other two required competencies,
customer service orientation and initiative, could be assessed.
[9]
On
March 24, 2005, CCRA notified the applicant that he had not achieved the
required minimum in all the required competencies and that, accordingly, he
could not be accepted as a candidate for the next stages in the selection
process.
[10]
Mr. Beaulieu
was not satisfied with his assessment and made use of the recourses provided
for in the Staffing Program. He first asked for individual feedback, indicating
in the form prescribed for the purpose that he was challenging [translation]
"all the results, comments or reasons supporting the results assigned [to
him] by the appraiser". So he could prepare effectively, he asked for all
the grids used in the assessment and all relevant information.
[11]
Mr. Pelchat,
who first assessed the applicant, agreed to give the applicant individual
feedback. He told him that all the relevant information had already been given
to him. On the marking grids, he answered that the CCRA competency catalogue
available on Infozone was used.
[12]
The
individual feedback took place by telephone on April 25, 2005. According to the
account prepared by Mr. Pelchat, he first confirmed that he had received
the applicant's comments on his assessment. He stated that he then explained
the way in which the behavioural events were assessed and discussed the
competencies on which the applicant had not obtained a passing grade. Following
this, Mr. Pelchat confirmed his initial assessment and concluded that
there would be no change in the reports submitted.
[13]
On May 4,
2005, the applicant wrote to André Paquin, Director of the Eastern Quebec Tax
Services Office, asking him to review Mr. Pelchat's decision.
Mr. Beaulieu alleged that he had been treated arbitrarily in the selection
process. In particular, he maintained that the competency consultant had not
taken his performance appraisals into account, had not taken notes at the
interview, and had underrated him. He especially objected to the fact that the
candidates were assessed by different appraisers and the fact that the Staffing
Program did not entitle him to have access to the other candidates' results.
[14]
Following
a meeting between Mr. Beaulieu and Mr. Paquin, the latter notified
the applicant in a letter on June 21, 2005, that he would not be recommending
corrective action because he had no reason to think that the competency
assessment had been made arbitrarily. The relevant portion of that letter reads
as follows:
[translation]
Pursuant to the Directives on
Recourse for Staffing, my role as the reviewer of the decision is not to give
my opinion on the relevance of the level assigned to the candidate in the
assessment, but to determine whether the candidate was treated arbitrarily, that
is, in an unreasonable manner done capriciously, not done or acting according
to reason or judgment.
Although you may disagree with
the definition of certain competencies and you may feel that the examples you
were given in your interview deserve a higher rating than that assigned to you
by the appraiser, I cannot substitute my judgment. Instead, I have carefully
considered whether there could have been anything which led to an arbitrary
assessment by him.
I have undertaken an analysis
of your portfolio, listened to the tape of your interview and taken into
account the comments you made at our meeting on June 14 last.
After reviewing the file as a
whole, I have no reason to think that the competency assessment in this process
was made arbitrarily and, consequently, I am not recommending any corrective
action.
[15]
In his
review application, the applicant asked Mr. Paquin to determine whether
any documents existed in the competency consultant's possession to which he did
not have access. Mr. Paquin did not see fit to answer this request and
made no reference in his letter to the disclosure of documents which the
consultant may have reviewed.
[16]
In the
affidavit he submitted in support of his application for judicial review,
Mr. Beaulieu alleged that three different appraisers had been used to make
the assessment of the candidates in the competition. Mr. Pelchat allegedly
told the applicant that he [translation] "only very rarely"
and "in exceptional cases" awarded a grade "3". At the same
time, he stated that he learned from discussing the matter with some of his
fellow employees that another appraiser had given "3" grades about
seven times, while he and the other candidate assessed by Mr. Pelchat had
obtained no "3" grades.
ISSUES
[17]
Essentially,
the application for judicial review at bar appears to the Court to raise three
questions:
·
What
should the standard of review applicable to the Director's decision be?
·
Did the
Director make a reviewable error in failing to conclude that the assessment of
candidates by different appraisers was arbitrary and that the selection and/or
staffing process required corrective action?
·
Did the
Director make a reviewable error by refusing to disclose the results of the
other candidates?
ANALYSIS
[18]
In order
to fully understand this matter and to properly answer the questions identified
in the preceding paragraph, it will be useful to quickly review of the CCRA
Staffing Program.
[19]
As
mentioned earlier, CCRA was established in 1999. Subsection 53(1) of the Canada
Customs and Revenue Agency Act gives CCRA the exclusive right to appoint
its staff, and subsection 54(1) requires CCRA to "develop a program
governing staffing, including the appointment of, and recourse for,
employees". The effect of these provisions is to remove CCRA from the scope
of the provisions in the Public Service Employment Act, R.S.C. 1985, c.
P‑33.
|
53. (1) The Agency has the exclusive
right and authority to appoint any employees that it considers necessary for
the proper conduct of its business.
(2) The Commissioner must exercise the
appointment authority under subsection (1) on behalf of the Agency.
54. (1) The Agency must develop a
program governing staffing, including the appointment of, and recourse for,
employees.
(2) No collective agreement may deal
with matters governed by the staffing program.
|
53. (1) L'Agence a competence exclusive
pour nommer le personnel qu'elle estime nécessaire à l'exercice de ses
activités.
(2) Les attributions prévues au
paragraphe (1) sont exercées par le commissaire pour le compte de l'Agence.
54. (1) L'Agence élabore un programme
de dotation en personnel régissant notamment les nominations et les recours
offerts aux employés.
(2) Sont exclues du champ des
conventions collectives toutes les matières régies par le programme de dotation
en personnel.
|
[20]
In
accordance with this legislation, CCRA adopted a Staffing Program. This program
provides that the selection process is one of the chief means for promoting
staff. The procedure is in three principal stages: Review of Prerequisites,
Assessment, and Placement (P4.3‑3).
[21]
The Review
of Prerequisites involves the selection board determining whether a candidate
meets the prerequisites indicated in the notice of job opportunity or in the
statement of staffing requirements (P4.3.2‑1). Only candidates meeting
the essential qualifications are consisdered for assessment, which is the
second stage in the selection process (P4.3.2‑2).
[22]
The case
at bar concerns only the second stage, the assessment, which involves
determining whether the candidate has the necessary competencies or
qualifications for the position. The Staffing Program clearly states that this
is an individual, not a comparative, assessment:
P4.3.3‑2 Assessment is a
comparison of a candidate's competencies/qualifications against established
assessment criteria, not a comparison amongst candidates (not ranking).
[23]
At this
stage of the staffing process, two recourses are available to dissatisfied
candidates. The first, individual feedback, is a necessary stage before
proceeding to any other form of recourse (P5.0‑6). It is not merely a
recourse, but also a key part of the career management process, which is
intended to give employees input on development needs (P5.0‑6).
[24]
The second
recourse, at the assessment stage of a selection process, is review of the
decision (P5.0‑7). In this process, the supervisor of the authorized
person or his or her delegate is responsible for conducting a review and making
a decision.
[25]
Candidates
found to be qualified are entered in a pool of qualified candidates that the
Agency can use to proceed with placement. "Placement" is the final
stage of the selection process. The manager may choose an individual from among
qualified candidates in accordance with the particular operational requirements
of the organization (P4.3.4‑1). It is clearly stated that placement is
not the result of a ranking of candidates by merit:
P4.3.4‑2 Placement is a
comparison of a candidate against specified placement criteria and is not a
ranking of individuals.
[26]
At this
last stage of the staffing process, a qualified candidate who has not been
appointed to a position has three recourses available: individual feedback,
decision review and independent third party review. As its name indicates, the
latter review is carried out by a person from outside CCRA and produces a
binding decision which does not create a precedent (P5.0‑9).
[27]
Regardless
of the type of recourse provided for in the Staffing Program, the purpose is to
ensure that an employee is not treated arbitrarily. The Directive on Recourse
for Staffing (the Directive) in fact states this specifically. Under the
heading "Grounds for Recourse", it states:
In all cases, the grounds for
recourse for Individual Feedback, Decision Review Process and Independent Third
Party Review is whether the employee exercising recourse was treated in an
arbitrary way. The focus should be on the treatment of the individual in the
process and not on the evaluation of other candidates or employees.
[28]
The word
"arbitrary" is defined as follows in the aforementioned section:
"In an unreasonable
manner, done capriciously; not done or acting according to reason or judgment;
not based on rationale, on established policy; not the result of a reasoning
applied to relevant considerations; discriminatory (i.e. difference of
treatment or denial of normal privileges to persons because of their race, age,
sex, nationality, religion, or union affiliation."
[29]
Accordingly,
this is the legislative and administrative background against which the Court
must assess the decision made by Mr. Paquin and determine whether he erred
in concluding that the applicant was not treated arbitrarily in the selection
process. In order to answer this question, the Court must first consider the
applicable standard of review.
[30]
In two
earlier judgments, this Court has had occasion to look at the standard of
review applicable to the decision resulting from a feedback session (Anderson
v. Canada (Customs and Revenue Agency), 2003 FCTD 667, [2003] F.C.J. No.
924 (QL)) and to the decision made following an independent third party review
(Canada (Customs and Revenue Agency) v. Kapadia, 2005
FC 1568, [2005] F.C.J. No. 2086 (QL)). However, I have not been able to
locate any decision dealing with the review recourse at issue here.
[31]
The
pragmatic and functional approach suggests that the Court look at the
legislative intent through four background factors identified by the Supreme
Court, inter alia in U.E.S., Local 298 v. Bibeault, [1988]
2 S.C.R. 1048, Canada (Director of Investigation and Research) v.
Southam Inc., [1997] 1 S.C.R. 748, Pushpanathan v. Canada
(Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Dr.
Q v. College of Physicians and Surgeons of British Columbia, [2003]
1 S.C.R. 226. These factors are the presence or absence of a privative
clause or of a right of appeal in legislation, the expertise of the Court on
the point at issue as compared with the reviewing tribunal, the purpose of the
legislation and the specific provision, and the nature of the question raised.
[32]
It may
first be noted that the legislation says nothing about possible review of
decisions made on the basis of a recourse, whether by judicial review or by
appeal. The Staffing Program and Directive also have nothing to say in this
regard. Accordingly, this factor does not allow the Court to draw any
conclusion whatever as to the severity of the applicable standard of review.
[33]
On the
expertise of the decision‑maker as compared with that of the Court on the
point at issue, the following comment has to be made. As regional director of
the Taxation Services Office and Mr. Beaulieu's supervisor,
Mr. Paquin almost certainly has broad experience and the expertise
necessary to fill the position applied for by Mr. Beaulieu. As a manager,
he is undoubtedly required to make regular rulings on the definitions of duties
in the principal categories of his employees, the skills required to perform
those duties adequately, and the review of decisions made by selection boards.
It must also be assumed that he is fully familiar with CCRA's mandate, its
internal organization and the various aspects of its human resources. Through
his duties, he is also familiar with the Agency's staffing process and
operational requirements. Finally, he has had the great advantage of meeting
Mr. Beaulieu, discussing his problems with him and listening to the
recording of the interview with the appraiser.
In view of all this, I have no
hesitation in concluding that this Court should be cautious about dismissing
Mr. Paquin's conclusions. He was in a particularly good position to
determine whether Mr. Beaulieu had been arbitrarily assessed, based on his
experience and his knowledge of CCRA.
[34]
However,
the third factor, the purpose of the legislation, supports a need for less
deference. The provisions dealing with recourses are not concerned with general
questions of public policy or the weighing of conflicting interests between
various groups. What is at issue here is the resolution of a dispute between an
employer and one of its employees. It is true that the obtaining of a promotion
is not a right in itself. Nevertheless, the dispute is closer to the
conventional legal paradigm than a "polycentric" discussion, to use
the language of Bastarache J. in Pushpanathan, supra. In other
words, the outcome of such a dispute has more to do with the facts put before
the decision‑maker than broad considerations of social policy.
[35]
That
leaves the nature of the problem in question. It seems clear to the Court that
the question of whether the selection board's decision not to accept
Mr. Beaulieu's candidacy was arbitrary is a mixed question of fact and
law. To answer this question, Mr. Paquin had to apply a legal standard, as
defined in the Directive, to the particular facts before him in connection with
the recourse filed by the applicant. Ordinarily, this type of question requires
a degree of deference comparable to the intermediate standard of review.
[36]
Having
weighed these various factors, I have come to the conclusion that the standard
of review applicable to the decision made by Mr. Paquin is that of
reasonableness simpliciter. This means that the Court must not interfere
unless the decision for review is not supported by any reasons which can stand
up to a somewhat probing examination. As Iacobucci J. stated in Law Society
of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraphs 55 and 56:
55
A decision will be unreasonable only if there is no line of analysis
within the given reasons that could reasonably lead the tribunal from the
evidence before it to the conclusion at which it arrived. If any of the reasons
that are sufficient to support the conclusion are tenable in the sense that
they can stand up to a somewhat probing examination, then the decision will not
be unreasonable and a reviewing court must not interfere (see Southam,
at para. 56). This means that a decision may satisfy the reasonableness
standard if it is supported by a tenable explanation even if this explanation
is not one that the reviewing court finds compelling (see Southam, at
para. 79).
56
This does
not mean that every element of the reasoning given must independently pass a
test for reasonableness. The question is rather whether the reasons, taken
as a whole, are tenable as support for the decision. At all times, a court
applying a standard of reasonableness must assess the basic adequacy of a
reasoned decision remembering that the issue under review does not compel one
specific result. Moreover, a reviewing court should not seize on one or
more mistakes or elements of the decision which do not affect the decision as a
whole.
[37]
Accordingly,
it is with these parameters in mind that I will consider the applicant's
arguments, which it will be recalled are of two kinds. Mr. Beaulieu
maintained that Mr. Paquin made an error by not concluding that the
assessment made of him was arbitrary and by refusing to disclose the results of
the other candidates.
[38]
Essentially,
the applicant argued that he was arbitrarily assessed because the candidates in
the competition for which he applied were assessed by three different
appraisers, and they had different standards of assessment. In particular, he
maintained in his affidavit that the appraiser to whom his case was assigned
told him that he [translation] "only very rarely and in
exceptional cases awarded a grade '3'". He learned from discussing the
matter with some of his fellow employees that one of the two other appraisers
had given "3" grades about seven times, whereas he and the other
candidate assessed by Mr. Pelchat had obtained no "3" grades.
[39]
In my
opinion, there are several problems with this argument. First,
Mr. Beaulieu's allegation is based only on hearsay. There is nothing in
the evidence to corroborate the statement. Ultimately, the applicant's
arguments might have been more credible if he had filed in support of his
application one or more affidavits from his fellow employees that confirmed
what he said. By relying on hearsay the applicant deprived the respondent of
the opportunity of cross‑examining the persons directly involved about
the truth of this information.
Additionally, there is no
tangible evidence of the fact that Mr. Pelchat used different criteria of
assessment from his colleagues or marked the candidates before him more
harshly. In the affidavit filed by the Attorney General in support of her
defence, Annie Lanteigne, industrial and organizational psychology consultant
at the CCRA Human Resources Branch, indicated that, after checking the results
for certain competencies, there were no significant differences between the
three consultants mentioned by Mr. Beaulieu. It is true that the
assessment results were not examined for all competencies, which might suggest
that significant differences could have appeared for some of them. However,
there is nothing to allow the Court to arrive at such a conclusion. The
applicant did not see fit to cross‑examine Ms. Lanteigne on her
affidavit, and he also did not make this argument in his written or oral
submissions. Further, it would have been surprising if Mr. Pelchat had
shown greater harshness than his colleagues in his assessments for certain
competencies only.
[40]
That said,
it is quite possible that competency consultants will not all have exactly the
same standards when they assess candidates. In fact, the situation could not be
otherwise once the assessment is not measuring only objective factors, but also
involves a certain measure of subjectivity. As in a huge organization like CCRA
it is impossible to have a single consultant assessing all candidates in the
various competitions which are held each year, the only other option available
to minimize subjectivity is to ensure that all candidates are assessed on the
same criteria. That is precisely what CCRA tried to do, as indicated by the
following paragraphs from Ms. Lanteigne's affidavit:
[translation]
3. All
competency consultants obtain their certification following intensive training
in which they must show that they have acquired the necessary skills and
knowledge (i.e. coding and interview techniques) to undertake the assessment of
organizational and behavioural compentencies. They must also show that they can
undertake assessment of standardized assessment tools (i.e. skills portfolio,
targeted behavioural interview). Additionally, after being certified, they must
participate in monthly national calibration activities. These activities enable
the Canada Revenue Agency to ensure that the results assigned by consultants
comply with standardized assessment practices and that assessments of
competencies are uniform.
4. Robert
Pelchat, a competency consultant, received the necessary training and has been
certified since April 1, 2002, to undertake standardized assessment of
organizational and behavioural competencies.
5. All
competency consultants use the same reference tools to make assessments of
organizational and behavioural competencies. They use the Competency Catalogue
as published on the Canada Revenue Agency's intranet competency site. In
addition, there are supplementary notes for each competency which are for the
use of certified competency consultants only. This information is protected by
section 22 of the Access to Information Act and enables consultants to
correctly interpret the marking scale for each competency.
[41]
I would
also add that Mr. Pelchat's [translation] "admission",
assuming he made the statement, is ambiguous to say the least. The fact that a
consultant is less inclined to give very high marks does not necessarily mean
that he will fail more candidates or that he will be more likely to conclude
that a candidate has not answered a question. In this regard, based on the
record as it stands, the Court can only guess as to the real meaning of the [translation]
"admission" allegedly made by Mr. Pelchat and the actual
consequences that may have resulted for Mr. Beaulieu.
[42]
Finally,
and this is what appears to the Court to be most important, it seems clear from
the review I have made of the CCRA staffing system that the merit principle as
conceived in the Public Service Employment Act is not applied so
strictly here. The principle that appears to be followed here is that of
competency. As a result, the Staffing Program does not require any comparison
to be made between candidates. Thus, at the stage of the preliminary assessment
of qualifications, the only relevant question is whether, judging from his
file, a candidate meets the essential requirements of the position. The
decision made is objective in nature, in the sense that a candidate meets or
does not meet the essential requirements of the position. At the second stage,
the assessment involves a comparison of the candidate's competencies or
qualifications against established assessment criteria, rather than a
comparison (or ranking) among candidates (P4.3.3‑2).
[43]
At the
hearing the applicant tried to establish that, assuming it was not relevant at
the assessment stage, the ranking of candidates could have an impact at the
placement stage. Once again, I cannot accept that argument. As I indicated
above, placement itself does not involve ranking candidates, but rather choosing
from among candidates who have qualified the one who meets the organization's
operational requirements. It is only in a situation where placement is made on
the basis of assessment results that the application of criteria by which that
assessment was made will become relevant.
[44]
These were
precisely the circumstances in which Eleanor Dawson J. had to make a ruling in Sargeant
v. Canada (Customs and Revenue Agency), 2002 FCTD 1043, [2002]
F.C.J. No. 1372 (QL). In that case, the manager had chosen five eligible
candidates for placement without taking into account their results at the
assessment stage. Ruling on the decision by an independent appraiser who had
concluded that it was not possible to order disclosure of documents relating to
the assessment because the appraiser's role was limited to reviewing the
placement stage, Dawson J. considered that the argument did not take into
account the fact that the manager's choice had in effect created a linkage
between the assessment and the placement stages. However, my colleague took
great care to limit the scope of her judgment, emphasizing that the applicants
would have been deprived of the right to exercise an effective remedy in the
circumstances of the case if they had been unable to obtain the documents relating
to the assessment to challenge a placement based exclusively on the results of
that assessment. Her comments at paragraph 44 of her reasons seem to me to
be conclusive for the solution of the case at bar:
Second, any review at the assessment stage could only relate to an
applicant's own score because the staffing program prohibited access at that
stage to anything, but his or her own personal assessment information. While
that makes some sense at the assessment stage because an individual is only
measured against the assessment criteria, in the present case, it ignores the
possibility that the assessment standards were not applied consistently with
the result that others received erroneously high scores. This becomes relevant
when assessment scores are used for a purpose other than simply determining if
an individual is entitled to enter a pre‑qualified pool.
See also to a similar effect Professional
Institute of the Public Service of Canada v. Canada (Customs and Revenue
Agency), 2004 FC 507, [2004] F.C.J. No. 649 (QL).
[45]
The
applicant's argument that the Director made an error by refusing to give him
the scores of the other candidates must of course be considered to be
groundless in view of the purposes of the assessment stage. Since the logic
applicable at that stage is not to compare candidates with each other but to
assess them in accordance with established assessment criteria, the files of
other candidates can be of no assistance to a candidate seeking to establish
that the assessment was arbitrary. Clause P4.3.3‑8 of the Staffing
Program is quite clear in this regard:
Access to information will be
in accordance with the Access to Information Act and the Privacy Act.
Candidates will have access only to their own personal assessment information.
[46]
This
statement of principle is reiterated and clarified in the Directive on Recourse
for Staffing, section 4 of which, on disclosure of information, reads as
follows:
·
Recourse
for the Staffing Program is subject to the Access to Information Act and
the Privacy Act.
·
For
Individual Feedback and Decision Review, Authorized Persons may not divulge
personal information of other employees without that employee's express written
permission.
·
Information
regarding the assessment or treatment of another candidate in the selection
process is considered to be personal information and may not be disclosed.
·
Authorized
Persons shall disclose all information relevant to the employee who is
exercising recourse, except any information that could compromise national
security, compromise the integrity of any standardized assessment method or any
information that would contravene the Privacy Act.
[47]
In Professional
Institute of the Public Service of Canada v. Canada (Customs and Revenue
Agency), supra, ruling on the reasonableness of the Staffing Program
and the recourse mechanisms contained in it, James Russell J. wrote at
paragraph 122:
So, from the perspective of
participating in the Program as it is described in the directives and exercising
recourse, an employee does not need the personal information of other
candidates. Hence, it can hardly be unreasonable for the Program to exclude
that information from "all information relevant to the employer [sic]
who is exercising recourse."
[48]
It is true
that in Sargeant, supra, Dawson J. wrote at paragraph 39 of her reasons:
Further support for this
conclusion is found in those portions of the Guidelines which require the
Reviewer to give expression to the principles of procedural fairness and which
note that personal information regarding other employees would be available as
warranted. Procedural fairness requires that participants have a meaningful
opportunity to present their case fully and fairly. A full and fair presentation
of the applicants' case would require access to information from the assessment
stage as that relates to the assessment scores given to each candidate.
[49]
These
comments were made in the context of an application for judicial review of a
decision by an independent third party at the placement stage. The Guidelines
on the presentation and treatment of complaints for independent third party
review, cited by the judge at paragraph 10 of her reasons, state the
following:
Access to personal information
will be governed by the Privacy Act and the Access to Information Act.
Such information would normally be provided by the manager. Personal
information regarding the complainant will be available to the complainant and
the reviewer. Personal information regarding other employees would be
available to the complainant and the reviewer as warranted, i.e. if relevant
with respect to the nature of the complaint and approved by an Agency official.
[Emphasis added.]
[50]
There is
no equivalent to this provision in the Directive on Recourse for Staffing. In
short, assessment and placement are two quite separate stages of the staffing
process, with their own logic, and this is clearly reflected in the recourses
available to dissatisfied candidates, as well as the provisions creating them.
This is why it is important to avoid introducing the rules applicable to one
stage into another stage.
[51]
For all
these reasons, therefore, I dismiss the application for judicial review. The
respondent will be entitled to his costs, in accordance with column III of the
table in Tariff B of the Federal Courts Rules.
JUDGMENT
THE COURT MAKES THE FOLLOWING
JUDGMENT:
1‑ The
application for judicial review is dismissed. The respondent will be entitled
to his costs in accordance with column III of the table of Tariff B of the
Federal Court Rules.
"Yves
de Montigny"
Certified
true translation
Mavis
Cavanaugh
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