Boudreau v. Canada (Attorney General), 2003 FC 1413

Date: 20031202

Docket: T-631-02

Citation: 2003 FC 1413

Ottawa, Ontario, this 2nd day of December, 2003

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                      BERNICE BOUDREAU and

ROSEMARY HANEY

                                                                                                                                           Applicants

                                                                         - and -

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                This is the judicial review of the decision of the Public Service Commission Appeal Board, dated March 15, 2002, in regard to a contested competition process carried out under the Public Service Employment Act, R.S.C. 1985, c. P-33 (the "Act").

[2]                The applicants request an order quashing the decision of the Appeal Board and remitting the matter back to the Public Service Commission for consideration by a newly constituted Appeal Board under the provisions of the Act.

Background

Introduction

[3]                On December 3, 1999, the Public Service Commission of Canada posted a competition for positions of pension counsellor (CR-05) with Public Works and Government Services Canada.

[4]                The applicants, Bernice Boudreau and Rosemary Haney, applied to the competition. The applicants state that they are employed in the public service of Canada.

[5]                The statement of qualifications for the position listed various qualifications needed in regard to education, experience, knowledge, abilities/skills, and personal suitability.

[6]                Of the 84 applications received, all but one were screened into the competition. The remaining candidates were assessed through a written test, interview and reference checks. The Selection Board was composed of four members, including a Chairperson. The Selection Board allocated 200 marks for knowledge, 300 marks for abilities, and 725 marks for personal suitability. The written test assessed knowledge (200 marks), abilities (200 marks) and personal suitability (125 marks). The interview assessed abilities (100 marks) and personal suitability (300 marks). Reference checks were conducted to further assess personal suitability (300 marks). In order to qualify, an overall pass mark was established at 796 marks (65%) for all the qualifications combined.

[7]                The Selection Board determined that 71 candidates were qualified. An eligibility list was established and all successful candidates were appointed indeterminately. Neither applicant was a successful candidate in the competition. Bernice Boudreau's final mark was 728 and Rosemary Haney's final mark was 740.

[8]                Both applicants appealed the appointments pursuant to section 21 of the Public Service Employment Act, supra. A hearing by an Appeal Board consisting of Michael Sloan was held on October 24, 2000.

Decision of the First Appeal Board - Chairperson Michael Sloan

[9]                The applicants presented two allegations: (I) the merit principle was not respected; and (ii) the rating factor for personal suitability, 725 points of a possible 1225 points was unduly weighed, leading to abuse of the reference checks used in the competition. In testimony, the Selection Board Chairperson, Rose Marie Allain, confirmed the decision to rate candidates globally for their overall qualifications regarding knowledge, abilities and personal suitability. She also acknowledged that she provided reference information for some candidates.

[10]            The Sloan Appeal Board allowed the appeal stating:

In conclusion, the intervention of this Appeal Board is warranted as the Selection Board did not ensure that candidates succeeded on each of the required qualifications - knowledge, abilities and personal suitability. Establishing an overall pass mark for the combined qualifications was an error of law in applying the principle of selection according to merit. However, the use of references and the weight assigned thereto in assessing the personal suitability qualification was not unreasonable.

Accordingly, it is recommended to the Commission that corrective measures be taken to ensure candidates success on each qualification by establishing meaningful pass marks for knowledge, abilities and personal suitability. As may be necessary, amendments ought to be made to the eligibility list. The appointment of any candidate who is not successful in respect of each qualification should be revoked.

Corrective Measures

[11]            The Public Service Commission of Canada implemented the following corrective measures: the eligibility list which had been established was set aside; the selection board was to establish meaningful pass marks for each factor; the department was to advise all candidates of the rationale used to establish the pass marks; a new eligibility list was to be established, with new appeal rights issued in accordance with subsection 21(4) of the Act; and the department was to notify all candidates of the corrective measures. The Selection Board, with advice from a human resources advisor who had not been involved in the original competition, determined that the minimum qualifications for each of the three factors would be 50%. The overall cut-off score of 65% was not changed.

[12]            The situation of the applicants did not change as a result of the implementation of the corrective measures and their names were not put on the new eligibility list. The applicants appealed this decision under subsection 21(4) of the Act. Hearings of the Appeal Board were held on September 18, 2001, February 28, 2002 and March 1, 2002. A decision was rendered on March 15, 2002.

Decision of the Second Appeal Board

[13]            The Appeal Board held that the applicants could only be heard on the grounds that the corrective measures did not result in a selection for appointment according to merit. The Appeal Board denied the applicants' appeal, stating:

Having considered the evidence and argument presented at the hearing of these appeals, I have concluded that my intervention in this selection process is not warranted simply because there was no admissible evidence, let alone argument, that the persons whose names are listed on the eligibility list established following the department's corrective measures were not the best qualified candidates from among those taking part in the CR-05 competition. . . .

[14]            This is a judicial review of the decision of the Appeal Board dated March 15, 2002.

Applicants' Submissions

[15]            The applicants submit that the standard of review of the decision of the Appeal Board is correctness.

[16]            The applicants submit the Appeal Board exceeded its jurisdiction in breach of the rules of procedural fairness by refusing to allow the introduction of evidence concerning the references of the applicants as candidates for positions in the public service.

[17]            The applicants submit that the Appeal Board erred in law in failing to find that the Selection Board was biased because the Chairperson of the Selection Board, who participated in making the selection of candidates and establishing pass marks, had provided references for some of the candidates selected for the eligibility list.

[18]            The applicants submit that the Appeal Board erred in law in that once it found that the applicant, Rosemary Haney, was qualified for the position, it failed to exercise its authority to place her on the eligibility list as directed by a previous Appeal Board decision.

[19]            The applicants submit that the Appeal Board erred in law and/or made a patently unreasonable finding of fact in accepting that a 50% pass mark was reasonable for the selection of candidates for the position when the candidates (including the applicants) were advised by the employer at the beginning of the competition that no pass marks were required for these positions.

Respondent's Submissions

[20]            The respondent submits that the standard of review of the decision of the Appeal Board is that of reasonableness simpliciter.

[21]            The respondent submits that the Appeal Board did not have the jurisdiction to place the applicant, Rosemary Haney, on the eligibility list.

[22]            Relying on Scarizzi v. Marinaki, [1994] F.C.J. No. 1881 (T.D.) (QL), the respondent submits that it is a selection board, not the Appeal Board, that assesses candidates and determines the composition of an eligibility list. The role of the Appeal Board, urges the respondent, is solely to determine whether the selections for appointment respect the merit principle. Chairperson Sloan, in the respondent's submission, recognized the Appeal Board's limited power and at no time directed that the applicant, Rosemary Haney, be placed on the eligibility list. It is submitted that the Appeal Board does not have jurisdiction to enquire into how the eligibility list was established unless unqualified candidates were placed on the list. Hence, the second Chairperson was correct to decline overturning the appointments even though the Selection Board erred in maintaining a 65% overall pass mark. The respondent submits that since no unqualified candidates appeared on the eligibility list, the Appeal Board was not empowered to intervene.

[23]            It is submitted that the Appeal Board correctly decided that once an appeal has been taken with respect to a particular selection process, further appeals with respect to that process are strictly limited to matters arising from the corrective measures.

[24]            The respondent submits that the applicants' arguments in relation to bias due to the Selection Board being chaired by some candidates' referee pertain to rulings made by the Sloan Appeal Board during the first hearing. The applicants did not seek judicial review of that decision. It is submitted that the applicants cannot now challenge these rulings indirectly in what ought properly to be limited to a judicial review of the second Chairperson's decision.

[25]            The respondent submits that the applicants have failed to provide sufficient evidence that the Selection Board was biased in setting reasonable and meaningful pass marks for each qualification factor. Although the Selection Board consulted with the department's executive committee on this issue, discussions were held without mentioning names of candidates and suggestions made to the Selection Board were in no way binding. The respondent urges this Court to adopt the Chairperson's ruling that even a reasonable apprehension of bais has not been established by the applicants.

Issues

[26]            1.          Did the Appeal Board exceed its jurisdiction in breaching the rules of procedural fairness by refusing to allow the introduction of evidence concerning the references of the applicants as candidates for positions to the public service?

2.          Did the Appeal Board err in law in failing to find that the Selection Board was biased because the Chairperson of the Selection Board, who participated in making the selection of candidates and establishing pass marks, had provided references for some of the candidates selected for the eligibility list?

3.          Did the Appeal Board err in law in that once it found that the applicant, Rosemary Haney, was qualified for the position, it failed to exercise its authority to place her on the eligibility list as directed by a previous Appeal Board decision?

4.          Did the Appeal Board err in law and/or make a patently unreasonable finding of fact in accepting that a 50% pass mark was reasonable for the selection of candidates for the position when the candidates (including the applicants) were advised by the employer at the beginning of the competition that no pass marks were required for these positions?

Relevant Statutory Provision

[27]            The relevant sections of the Public Service Employment Act, supra state as follows:

Analysis and Decision

Legislative Scheme

[28]            Subsection 10(1) of the Act states that appointments to and within the public service shall be based on "selection according to merit". Subsection 17(1) provides for eligibility lists on which the highest ranking candidates from among those determined to be qualified are placed. According to subsection 18(1), any appointment under the Act made to a position by competition must be made from an eligibility list.

[29]            Subsection 21(1) outlines the right of appeal for unsuccessful candidates in closed competitions where a person is appointed or about to be appointed. The subsection states:

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.

Under subsection 21(3), where an Appeal Board determines that there was a defect in the process for the selection of a person for appointment, "the Commission may take such measures as it considers necessary to remedy the defect". Subsection 21(4), which limits the scope of subsequent appeals, states:

21.(4)Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit.

Standard of Review

[30]            Barbeau v. Canada (Attorney General), [2002] F.C.J. No. 582 (T.D.) (QL), 2002 FCT 454, at paragraphs 18 to 21 read:

The Federal Court of Appeal has confirmed that the Appeal Board does not possess sufficient expertise in interpreting the Act so as to warrant the deference of the Court except in particular circumstances. Consequently, errors of law, errors of jurisdiction, and the requirements of the merit principle which raise an issue of law, are all subject to review on the standard of correctness. This has been confirmed by the following cases:

In Boucher v. Canada (Attorney General), [1998] F.C.J. No. 1557 (F.C.T.D.), McKeown J. held:

There were many submissions made with respect to the standard of review applicable in this case. In my view, the standard with respect to findings of fact is at the high end of the spectrum--that is, such findings should be accorded considerable deference by the reviewing court. Conversely, findings with respect to errors of law are at the lower end of the spectrum and are to be treated less deferentially.

This was later confirmed by the Federal Court of Appeal in Boucher v. Canada (Attorney General), [2000] F.C.J. No. 86 (F.C.A.).

The applicable standard of review in a section 21 appeal was also discussed in Buttar v. Canada (Attorney General), [2000] F.C.J. No. 437 (F.C.A.) where Décary, Sharlow and Malone JJ. held:

Dr. Buttar sought judicial review of this decision. This raises a question of law as to the requirements of the merit principle and the standard of review is correctness: Boucher v. Attorney General of Canada, A-699-98, January 20, 2000; [2000] F.C.J. No. 86.

[31]            In Maassen v. Canada (Attorney General), [2001] F.C.J. No. 961 (T.D.) (QL), 2001 FCT 633, McKeown J. stated at paragraph 14:

. . . The standard of review of Appeal Board decision is correctness with respect to issues of law such as interpretation of PSEA. See: Boucher v. Canada (Attorney General), [2000] F.C.J. No. 86 (F.C.A.). However, findings of fact made by appeal boards are entitled to a higher degree of deference, except where such findings are made without regard to the evidence before the Appeal Board. See: Canada (Attorney General) v. Rogerville, (1996) 117 F.T.R. 53 (T.D.).

[32]            In Dr. Q. v. College of Physicians and Surgeons of British Columbia (2003), 302 N.R. 34, 2003 SCC 19">2003 SCC 19, the Supreme Court of Canada in speaking of the standard of review in judicial review proceedings stated at paragraphs 25 and 26:

For this reason, it is no longer sufficient to slot a particular issue into a pigeon hole of judicial review and, on this basis, demand correctness from the decision-maker. Nor is a reviewing court's interpretation of a privative clause or mechanism of review solely dispositive of a particular standard of review: Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, [2001] S.C.J. No. 37, 2001 SCC 36">2001 SCC 36, at para. 27. The pragmatic and functional approach demands a more nuanced analysis based on consideration of a number of factors. This approach applies whenever a court reviews the decision of an administrative body. As Professor D.J. Mullan states in Administrative Law (2001), at p. 108, with the pragmatic and functional approach, "the Court has provided an overarching or unifying theory for review of the substantive decisions of all manner of statutory and prerogative decision makers". Review of the conclusions of an administrative decision-maker must begin by applying the pragmatic and functional approach.

In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors - the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question - law, fact, or mixed law and fact. . . .

As the approach in Dr. Q., supra, recognizes, there may well be different standards of review for different issues in the same case.

[33]            The application of the pragmatic and functional approach to determining the appropriate standard of review in the present case is described in the following paragraphs:

1.          The presence or absence of a privative clause or statutory right of appeal

The Act does not contain a privative clause or a statutory right of appeal. Since the statute is silent on the question of review, this factor is neutral.

2.          The expertise of the tribunal relative to that of the reviewing court on the issue in question

The issue in question is whether the merit principle has been followed in the appointment of qualified candidates to the eligibility list. The requirements of the merit principle were viewed in Barbeau, supra to raise questions of law. While I recognize that administrative decision-makers may be owed deference on questions of law in some circumstances, that is not the case here. Neither the Act, nor the Public Service Employment Act Regulations, 2000, S.O.R./2000-80, requires an appeal board to have specialized knowledge, any particular experience or qualifications in applying the merit principle. As recognized by Justice Strayer for the Federal Court of Appeal in Boucher v. Canada (Attorney General) (2000), 252 N.R. 186 (F.C.A.), an appeal board is appointed by the Public Service Commission on an ad hoc basis without particular expertise in the interpretation of the Act. I also fail to see any special procedure or non-judicial means of implementing the Act that entitles the Appeal Board to greater curial deference to its decisions. On this basis, I am satisfied that the Appeal Board has no more expertise than the Court to determine this question.

3.          The purpose of the legislation and the provision in particular

The purpose of the legislation and the selection process in particular, is to find the best qualified persons to staff the various positions. To ensure the remedial measures chosen by the Public Service Commission result in an appointment according to merit, subsection 21(4) of the Act provides limited appeal rights. On such an appeal, an appeal board is not engaged in polycentric decision-making that involves the balancing of multiple sets of interests or policy-laden purposes so as to attract deference from a reviewing court. Taken as a whole, neither the scheme of the Act, nor the provision in particular, signal any legislative intent that interpretation and application of the merit principle be left to the appeal Board's determination. This factor favours less deference.

4.          The nature of the question - law, fact or mixed law and fact

The question in this case involves the application of the merit principle which the Federal Court of Appeal has determined to be a question of law (see Buttar v. Canada (Attorney General), [2000] F.C.J. No. 437 (C.A.)).

[34]            Balancing these factors, I am satisfied that the appropriate standard of review is correctness.    I would note that this same standard of review of correctness would apply to the procedural fairness and natural justice issues.

[35]            Issue 1

Did the Appeal Board exceed its jurisdiction in breaching the rules of procedural fairness by refusing to allow the introduction of evidence concerning the references of the applicants as candidates for positions to the public service?

Subsection 21(4) states:

Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit.

[36]            In Johnson v. Canada (Attorney General), [1998] F.C.J. No. 191 (T.D.) (QL), Hugessen J. wrote at paragraphs 11 and 14:

While it could very likely be successfully argued that incomplete or inadequate corrective measures would fall within the contemplation of the subsection, it is, in my view, perfectly clear that only measures taken or failed to be taken pursuant to subsection 21(3), i.e. measures to remedy a defect already identified by an Appeal Board, may be made the subject of a further appeal. To put the matter another way, the focus of subsection 21(3) is the defects and the measures taken to correct them. A further appeal under subsection 21(4) is limited to the impact of those measures on those defects. The three new grounds proposed by the applicants before the third Appeal Board and again here clearly do not meet the test.

. . .

Looked at in this light, there is nothing very dramatic or drastic about subsections 21(3) and 21(4). They simply direct that when the Commission decides to take corrective measures rather than to go back to the beginning and start a new competition, the relevant time for the assessment of merit of the candidates remains the same. On the second appeal, the corrective measures are assessed for their conformity with the merit principle but all other matters, whether or not they might have been raised on the first appeal, are a closed book. The legislation has made a policy choice to put closure to the appointment process.

Justice Hugessen's interpretation of subsection 21(4) appeals was upheld by the Federal Court of Appeal: (1999), 249 N.R. 136 (F.C.A.).

[37]            In the case at hand, the Appeal Board did not allow the applicants to introduce evidence that references for certain of the applicants for the positions were given by the Chairperson of the Selection Board. The applicants submitted that one of its members providing letters of recommendation for some candidates amounted to an apprehension of bias by the Selection Board. The applicants submit that the Chairperson's refusal to receive this evidence was a breach of the duty of procedural fairness owed to them by the Appeal Board.

[38]            In her reasons at page 20, the Chairperson wrote:

Accordingly, it is my finding that the appellants can be heard at the appeal hearing only on the ground that the measures so taken by the selection board when endeavouring to comply with the directives of the Commission did not result in a selection for appointment according to merit. The result is that the submissions that the reference checks were flawed cannot be regarded as an integral part of the allegations. That issue was considered and rejected by Chairman Sloan on the evidence before him. The appellants must take responsibility for the nature of the evidence and argument that was presented or, with due diligence, could have been presented to Mr. Sloan.

[39]            This can be confirmed in Chairperson's Sloan's decision at page 5 and 15 of his decision:

. . .[The Chairperson of the Selection Board] acknowledged that she provided reference information for some candidates from her own section, explaining that their scores in the competition were done in conjunction with other persons.

. . .

The reference questionnaires for nine successful candidates, and for the two appellants, were placed into evidence. Several persons testified who were involved in the reference part of the process either as a selection board member or as a referee. On careful consideration of the evidence, I have found no basis on which to conclude that the reference part of the assessment process was conducted improperly. Nor am I able to conclude that the reference information provided to, and considered by, the selection board regarding the appellants should not have been relied upon for assessment purposes. The assessments of the selection board appear reasonable and consistent.

[40]            As a result of subsection 21(4) of the Act, an appeal against an appointment may only be made on the ground that the corrective measures taken by the Public Service Commission did not result in a selection for appointment according to merit. As the evidence sought to be introduced by the applicants did not relate to the corrective measures taken, I find that the Appeal Board did not make an error in failing to admit the evidence.

[41]            Issue 2

Did the Appeal Board err in law in failing to find that the Selection Board was biased because the Chairperson of the Selection Board, who participated in making the selection of candidates and establishing pass marks, had provided references for some of the candidates selected for the eligibility list?

The applicant submits that the Appeal Board erred in law in failing to find that the Selection Board was biased because the Chairperson of the Selection Board, who participated in making the selection of candidates and establishing pass marks, had provided references for some of the candidates selected for the eligibility list. The applicant submits that notwithstanding the decision of Canada (Attorney General) v. Mirabelli, [1987] F.C.J. No. 142 (C.A.) (QL), the Appeal Board was still required to inquire whether there was bias. It is submitted that the issue was central to the Appeal Board under review and that it was a breach of procedural fairness for the Appeal Board to refuse to consider the allegation of bias made in respect of the selection process.

[42]            Having reviewed these two allegations of bias, the Chairperson wrote at pages 25 and 26 of her decision:

There is nothing in these arguments that individually, amount to actual bias versus a reasonable apprehension of bias or, collectively, to a finding of "presumptive actual bias" based on the evidence before me except, of course, for the establishment of the sixty-five percent overall pass mark which I have found to be beyond the authority of the board to establish and as such a nullity. . . .

. . .

Having considered the evidence and argument presented at the hearing of these appeals, I have concluded that my intervention in the selection process is not warranted simply because there was no admissible evidence, let alone argument, that the persons whose names are listed on the eligibility list established following the department's corrective measures were not the best qualified candidates from among those taking part in this CR-05 competition. . . .

[43]            In Mirabelli, supra, the Federal Court of Appeal wrote:

In the special circumstances of this case where the only decision of the Appeal Board was called upon to make was as to whether or not an appointment would contravene the merit principle, the Board may not rely on a finding of reasonable apprehension of bias. Only actual bias could show that the ". . . process was not carried out in a manner calculated to identify the most meritorious candidate." . . . Reasonable apprehension of bias connotes a possibility that bias may exist. It does not satisfy the requirement that the competition has been influenced by an irregularity. . . .

[44]            In Hnatiuk v. Canada (Treasury Board), [1993] F.C.J. No. 703 (T.D.) (QL) at paragraph 14, Gibson J. wrote:

. . . 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".

[45]            The Federal Court of Appeal, in affirming this decision (reported at (1994), 170 N.R. 364 (F.C.A.)) stated at paragraph 2:

We are all agreed with Gibson J. that for a finding of actual bias it is not necessary for that bias to be apparent on the face of the record. It may also be discoverable in all the circumstances of the competition. . . .

[46]            The applicants ground their bias argument on two bases: (i) Rosemary Haney had participated in an harassment complaint against a member of the executive committee that was consulted in setting pass marks; and (ii) the Chairperson of the Selection Board had provided reference letters for some of the candidates and had sought to hide that fact. Firstly, I would note that the issue of the reference letters was before Chairperson Sloan, of the first Appeal Board and he found that "the use of the references and the weight assigned thereto in assessing the personal suitability qualification was not unreasonable." This finding, although not framed as a bias argument was not challenged by the applicants on a judicial review application.

[47]            As to the bias argument based on the reference letters, I find that this matter was dealt with by Chairperson Sloan unfavourably to the applicants. It is not stated to be a defect in the first selection process by Chairperson Sloan and consequently, the Chairperson of the second Appeal Board, was correct in her finding in this respect as subsection 21(4) of the Act only allows appeals "on the ground that the measures so taken did not result in a selection for appointment according to merit".

[48]            As to the bias argument based on the consultation with the member of the executive committee, this issue does arise from the corrective measures taken by the Commission in its process of determining a cut-off score. I am not persuaded that there was bias or a reasonable apprehension of bias in the Selection Board on this point. The names of the candidates were not mentioned and the discussions do not appear to have been binding.

[49]            Issue 3

Did the Appeal Board err in law in that once it found that the applicant, Rosemary Haney, was qualified for the position, it failed to exercise its authority to place her on the eligibility list as directed by a previous Appeal Board decision?

My review of the previous Appeal Board's decision does not satisfy me that Chairman Sloan directed the Selection Board to place the applicant, Rosemary Haney, on the eligibility list. At pages 15 to 16 of his decision, Chairman Sloan wrote:

. . . The selection board must perform that task fairly and honestly to ensure that selection is made according to merit. The assessment of a candidate is often a matter of opinion, however, the selection board is expected to be reasonable in forming its opinions. It is not the role of the Appeal Board to reassess candidates or to substitute its opinion for that of the selection board. Rather, the Appeal Board is to conduct an inquiry to determine whether the selections for appointment were made in such manner as to respect the principle of selection according to merit. The Appeal Board may intervene in the selection board's decisions only where the latter has formed an opinion that is not reasonable.

In Chairperson Sloan's conclusion at pages 16 to 17 of his reasons, nowhere does he direct that either of the applicants be placed on the eligibility list.

[50]            The applicants submitted that the Appeal Board refused to place them on the eligibility list because the list was only valid until September 26, 2001.

[51]            The Chairperson wrote at page 29 of her decision:

Secondly, and most importantly, subsection 21.(1) of the Act permits appeals only against persons who have been appointed or who are about to be appointed under the Act. Only those persons who have already been appointed from the eligibility list fall into that category. No other candidate is eligible to be appointed, even if determined to be fully qualified as a result of this decision, because the list was valid only until 26 September 2001. Consequently, even confirming the validity of the fifty percent minimum for knowledge, abilities and personal suitability and striking down the overall pass mark of sixty-five percent, there is no retroactive effect on the relative merit of those person who hae already been appointed from the eligibility list. They are all clearly better qualified than appellant Haney or any other unsuccessful candidate who may now be deemed qualified as a result of this decision.

[52]            However, the Chairperson also made this finding at pages 28 to 29 of her decision:

However, I have concluded that such an intervention on the part of his appeal board in any event would be illegal or academic at best.

First, the delegation of authority to me, according to the authorities granted by the Public Service Commission to the Vice-President of the Recourse Branch, is limited here to conducting inquiries, pursuant to subsections 21(1) and 21(1.1) of the Act, into appeals against appointments from within the Public Service. I have no jurisdiction to inquire into how the Commission, acting through Norm Denis, exercised its authority in establishing the eligibility list under subsection 17(1), with the possible exception of circumstances such as found in Asselin where the list contained the names of unqualified candidates. The evidence of the Sloan appeal board decision show that all of the candidates on the eligibility list following the allowed appeal were both fully qualified and the best qualified of those who entered the competition based on the minimum pass mark of fifty percent for each of the knowledge, abilities and personal suitability qualifications.

[53]            The Chairperson gave as a reason for not placing Ms. Haney on the eligibility list the fact that subsection 17(1) of the Act allows the Public Service Commission to appoint "from among the qualified candidates" indicates that not all the qualified candidates need go on the eligibility list. It is up to the Commission to place the most highly qualified candidates on the eligibility list. I am of the view that the Chairperson did not err in this respect.

[54]            The applicants also argued that although the Chairperson referred to the Federal Court of Appeal's decision in Canada (Attorney General) v. Asselin,[1986] F.C.J. No. 307 (C.A.), the test was misapplied. Marceau J. stated in Asselin, supra at page 3 as follows:

. . . Moreover, while it is clear that in practice an appeal board acting under s. 21 will be primarily concerned with the work of the selection board and compliance with the merit principle, since this of course is where problems are likely to arise, there is no basis in the Act as I see it for concluding that other matters may not also be considered. If an appointment is made or is about to be made from an eligible list which only appears to be such a list, because it is irregular, incomplete or was prepared contrary to law, it surely is unthinkable that the appeal board could close its eyes to this fact and ignore it.

[55]            In Asselin, supra on the competition notice published by the Public Service Commission, after the qualifications for the position to be filled, stated that security clearance and a medical examination were required. None of the persons whose names appeared on the eligibility list had been the subject of a security investigation or a medical examination. The Appeal Board in that case vacated the eligibility list. The Attorney General of Canada's application for judicial review was dismissed by the Federal Court of Appeal.

[56]            In the present case, the eligibility list is irregular as all of the qualified candidates may not have been considered when the Commission made up the eligibility list. Justice Marceau of the Federal Court of Appeal in Asselin, supra stated that an appeal board cannot close its eyes to irregularities and ignore them. Once the Appeal Board struck down the overall pass mark of 65%, thus making Ms. Haney qualified for the position, the Appeal Board should have addressed the jurisprudence in Asselin, supra.

[57]            Ms. Haney would be among the group of qualified candidates from which the Commission would obtain names for its eligibility list pursuant to subsection 17(1) of the Act. As a result, the eligibility list prepared without her name being in the pool of eligible candidates may not be a complete list as discussed by the Federal Court of appeal in Asselin, supra. The Appeal Board concluded that its intention in these circumstances would be illegal or academic at best. I disagree. I am of the opinion that it was an error on the part of the Appeal Board to interpret Asselin, supra in such a narrow manner.

[58]            In addition, the Appeal Board placed great weight on the expiry of the eligibility list in reaching its conclusion that it could not intervene. The expiry of an eligibility list cannot shield the process from review where the principle of selection by merit has been undermined.

[59]            The application for judicial review is allowed and the matter is referred to a different appeal board for determination in accordance with this decision.

[60]            Because of my finding on Issue 3, I will not deal with Issue 4.

ORDER

[61]            IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different appeal board for determination in accordance with this decision.

           "John A. O'Keefe"                  

             J.F.C.

Ottawa, Ontario

December 2, 2003

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-631-02

STYLE OF CAUSE: BERNICE BOUDREAU and

ROSEMARY HANEY

- and -

ATTORNEY GENERAL OF CANADA

                                                     

PLACE OF HEARING:                                 Fredericton, New Brunswick

DATE OF HEARING:                                   Tuesday, June 3, 2003

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                     Tuesday, December 2, 2003

APPEARANCES:

Mr. David Brown, Q. C.

FOR APPLICANT

Ms. Melissa Cameron

FOR RESPONDENT

SOLICITORS OF RECORD:

Brown MacGillivray

Saint John, New Brunswick

FOR APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada

FOR RESPONDENT