Glofcheskie v. Canada (Attorney General), 2004 FC 49

Date: 20040114

Docket: T-364-03

Citation: 2004 FC 49

BETWEEN:

                                                           JOHN GLOFCHESKIE and

                                                                 RUDY QUADRINI

                                                                                                                                                      Applicants

                                                                              - and -

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

KELEN, J.:

[1]                 This is an application for judicial review of a decision by Chairman J.R. Ojalammi of the Public Service Appeal Board ("Appeal Board") dated January 27, 2003, dismissing the appeals of the applicants made pursuant to section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33("PSEA").

FACTS

[2]                 The applicants were unsuccessful candidates in a closed competition for Team Leader positions (AU-04) in the Verification and Enforcement Division of three Toronto area offices of Revenue Canada (now the Canada Customs and Revenue Agency). In November 1997, Revenue Canada initiated a competition for the three positions beginning with a standardized test, for screening purposes, known as the Middle In-Basket (820) test. Candidates were required to obtain a minimum mark of 16 out of 30 to proceed to the second phase.

[3]                 The second phase was a written exam used to assess knowledge, and some ability and skills set out in the Statement of Qualifications for the three positions. The applicants failed to attain the minimum standard established for the abilities section of the written examination, which was 60 out of 100. The applicant Glofcheskie received 45 marks and the applicant Quadrini received 49 marks. The applicants appealed under section 21 of the PSEA, against the selections for appointment. They alleged that the Selection Board had marked certain answers they provided in a patently unreasonable manner, because they had provided virtually the same answers as other candidates and yet received fewer marks, for those answers.

Appeal Board's Decision with Respect to the Standard of Review

[4]                 With respect to the standard of review, the Appeal Board concluded that the applicants were unable to demonstrate that the decision of the Selection Board was "patently unreasonable". At the same time, the Appeal Board used language which describes the "reasonableness simplicter" standard of review.

[5]                 In its reasons at page 10 the Board held:

An appeal Board's ability to intervene in the judgments made by the selection board is somewhat constrained. Assuming that the selection board has acted within its legal mandate and complied with the applicable legislation, generally speaking, an Appeal Board must be able to conclude that a determination made by the selection board is factually wrong or patently unreasonable before it can intervene. Simply stated, an appellant challenging a decision reached by a selection board cannot succeed simply by demonstrating that there was an alternative conclusion which could have been reached.

[6]                 And at page 11 the Board held:

After considering all of the information placed before me at the hearing, I cannot conclude that the decisions taken by the board in this regard are patently unreasonable. Therefore, notwithstanding that others may have differing views and might have reached different decisions than did this selection board, I cannot intervene in the conclusions that the board reached. Accordingly, this aspect of Mr. Quadrini's argument is dismissed.

[7]                 At page 15 the Board held:

[...] The cases indicate that an Appeal Board has limited jurisdiction to intervene in a selection board's exercise of its discretion-an Appeal Board is not a new selection board. Assuming a selection board has not acted outside its jurisdiction or in contravention of the law, an Appeal Board may only intervene if the conclusions that have been reached are patently unreasonable [...]

[...]

Simply stated, a selection board has been empowered to make certain discretionary decisions so long as its conclusions are not clearly irrational, they must be allowed to stand.

[8]                 At page 17 the Board held:

The conclusions which the board reached about the appellants' answers were cogent and rational and could be supported upon the information it was considering. Neither the manner in which the board evaluated what the appellants wrote nor the marks which it awarded to them were patently unreasonable.

ISSUES

[9]                 There are two issues raised in this application:

i.          did the Appeal Board apply the wrong standard of review in dismissing the applicants' claims; and,

ii.           did the Appeal Board err in declining to assess whether the Selection Board consistently marked the answers of the candidates.

RELEVANT LEGISLATION

[10]            The principle underlying appointments to the public service is the merit principle per subsection 10(1) of the PSEA:

[11]            Subsection 21(1) provides a mechanism that allows unsuccessful candidates to appeal against an appointment to an appeal board established by the Public Service Commission:

ANALYSIS

1^st Issue: Did the Appeal Board Apply the Wrong Standard of Review?

[12]            The reasons for the Appeal Board decision, which comprise 36 pages, repeatedly state that the standard of review is "patently unreasonable", when the correct standard is well established to be reasonableness simpliciter. The respondent concedes that the Board erred in this respect.

[13]            The Court is surprised that this error occurred in view of the jurisprudence that section 21 appeals under the PSEA to an Appeal Board are on a reasonableness simiplicter standard, not a patently unreasonable standard.

[14]            However, the Court is satisfied that the Appeal Board in fact applied the reasonableness simplicter standard in that the Appeal Board did a thorough probing examination, as required by the reasonableness standard. The Board stated that the Selection Board's decision is based on the evidence, and that while another person may have reached an alternative or different conclusion, that does not mean that the appeal from the Selection Board's decision must succeed. This language demonstrates that the Appeal Board used the reasonableness standard. The patently

unreasonable standard of review is different. It is not only that the finding of fact was clearly irrational on its face without a probing examination being necessary, but that the finding of fact is simply wrong and that there is no alternative or different conclusion which another reasonable mind could have reached.

[15]            In 2003 SCC 63">Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63; [2003] S.C.J. No. 64 (QL) Mr. Justice LeBel of the Supreme Court of Canada speaking for Deschamps J. and himself stated:

1.         that the distinction between patently unreasonable and unreasonable is difficult;

2.         that there is no qualitative basis on which to differentiate effectively between various characterizations of rationality analysis, i.e. the two standards; and

3.         the existence of the two variants of reasonableness creates practical difficulties and difficulties in principle which should not exist.

Accordingly, two Judges of the Supreme Court of Canada do not think there should be a difference between patently unreasonable and reasonableness. Mr. Justice LeBel held at paragraphs 105 and 106:

¶ 105 [...]Also relevant in this respect are the comments of Reed J. In Hao v. Canada (Minister of Citizenship and Immigration (2000), 184 F..R. 246, at paras. 9:

I note that I have never been convinced that "patently unreasonable" differs in a significant way from "unreasonable". The word "patently" means clearly or obviously. If the unreasonableness of a decision is not clear or obvious, I do not see how that decision can be said to be unreasonable.

¶ 106        Even a brief review of this Court's descriptions of the defining characteristics of patently unreasonable and unreasonable decisions demonstrates that it is difficult to sustain a meaningful distinction between two forms of reasonableness on the basis of the magnitude of the defect, and the extent of the decision's resulting deviation from the realm of the reasonable.

[16]            And at paragraph 107:

¶ 107 [...] There seems to me to be no qualitative basis on which to differentiate effectively between these various characterizations of a rationality analysis; how, for instance, would a decision that is not "tenably supported" (and is thus "merely" unreasonable) differ from a decision that is not "rationally supported" (and is thus patently unreasonable)?

[17]            And at paragraph 109:

¶ 109 The existence of these two variants of reasonableness review forces reviewing courts to continue to grapple with the significant practical problems inherent in distinguishing meaningfully between the two standards. To the extent that a distinction is advanced on the basis of the relative severity of the defect, this poses not only practical difficulties but also difficulties in principle, as this approach implies that patent unreasonableness, in requiring "clear" rather than "mere" irrationality, allows for a margin of appreciation for decisions that are not in accordance with reason. In this respect, I would echo Mullan's comments that there would "have to be concerns with a regime of judicial review which would allow any irrational decision to escape rebuke even under the most deferential standard of scrutiny" (Mullan, "Recent Developments in Standard of Review", supra, at page 25).

[18]            Obviously the Chairman of the Appeal Board in this case was confused about the distinction between "patently unreasonable" and simply "unreasonable". His confusion is understandable to some extent, however, as Chairman of a Public Service Commission Appeal Board, he should have identified the correct standard of review. As stated above, since I am of the view that the Appeal Board in fact applied the reasonableness standard, and not the patently

unreasonableness standard, I will not allow the appeal on this basis.

[19]            In Hains v. Canada (Attorney General) (2001), 209 F.T.R. 137 (T.D.) and Lai v. Canada (Attorney General) (2001), 208 F.T.R. 67 this Court came to a similar conclusion. In Hains at paras. 32 -33, per Heneghan J.:

¶ 32 It is clear from this extract from its reasons that the Appeal Board appreciated that the applicable standard of review was reasonableness. It is equally clear, in my opinion, that the Appeal Board applied that standard, regardless of the words used here. The difference between "reasonable" and "patently unreasonable" was discussed by the Supreme Court of Canada in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. [1997] 1 S.C.R. 748 where the Court said as follows at paragraph 57:

The difference between 'unreasonable' and 'patently unreasonable' lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable.

¶ 33 In my opinion, the analysis conducted by the Appeal Board in assessing the evidence before it on the issue of the marking of question nine demonstrates that it tested that evidence before reaching its conclusion. This shows that it applied the standard of reasonableness. In my view, it was justified in doing so.

[20]            And in Lai, supra at para. 27, per Blanchard J.:

A careful review of the transcript of the hearing does reveal that the Chairman did indeed utter the words "patently unreasonable" many times in the 13 days of hearings. One cannot from this alone conclude that the improper standard of review was applied by the Chairman. These declarations must be taken in context and ultimately consideration must be given to written reasons of the Chairman in assessing whether he applied the correct standard of review.

[emphasis added]

[21]            The Appeal Board's decision and transcript of the seven days of hearings reveal that the Board conducted a thorough inquiry into the selection process, and applied the reasonableness standard.

2^nd Issue: Did the Appeal Board err in failing to assess whether the Selection Board

consistently marked the answers of the candidates

[22]            The Appeal Board held that it had not been persuaded that the selection board marked the applicants' responses differently than it had marked the answers given by the successful candidates. The applicants submit that this comparative analysis did not take place because the Appeal Board held at page 19 of its reasons that the selection board could not have marked the applicants' responses differently than it marked the responses given by the successful candidates because the "answer papers were only identified by candidate numbers and not names" and the Selection Board did not know which candidate was providing the answers. The exact finding of the Appeal Board at page 19 is as follows:

Moreover, despite the able arguments of the appellants' representative, I have not been persuaded that the selection board marked the appellants' responses differently than it had marked the answers given by the successful candidates. Indeed, since the answer papers were only identified by candidate numbers and not names, and which number referred to which candidate was not known to the selection board, it would have been rather difficult for the board to consciously favour some candidates over others. In these circumstances, I must allow the decisions taken by the selection board to stand and dismiss this allegation.

[23]            The respondent concedes that the Appeal Board is wrong in the excerpt above, but that this error does not affect the correctness of the decision. The Appeal Board is wrong in stating that the applicants' submission, that the selection board did not consistently mark the answers given by the candidates, is an allegation that the selection board was biased. There is no allegation of bias raised by the applicants and the Appeal Board is confused in this regard.

[24]            However, I am of the view that the Appeal Board did a proper analysis to compare the responses given by the applicants with those of the successful candidates to determine whether the selection board erred in failing to award marks for answers by the applicants for which successful candidates were given marks. Counsel for the respondent took me to the questions, the answers provided, the marks awarded and the correct answers. I have also reviewed the analysis by the Appeal Board on the same subject. The Appeal Board found at page 15:

Thus, I do not find the comparisons made between Mr. Glofcheskie's statements in his answer and what were said to be similar statements in other candidates' answers to be of assistance in adjudicating this allegation.

It is clear that the Appeal Board identified the issue and did assess and compare the answers to determine that the comparative marking of the candidates was consistent. Accordingly, the misstatement by the Appeal Board with respect to bias is no consequence with respect to this application for judicial review.

Costs

[25]            In view of my finding that the Appeal Board misstated the proper standard of review on several occasions, and misstated the applicants' arguments with respect to consistency of marking the responses given by the candidates as a bias issue, I am satisfied that the applicants ought not be penalized with costs for bringing this application. The respondent immediately conceded that the Appeal Board erroneously stated that the standard of review is "patently unreasonable", when in fact the correct standard of review is "reasonableness simplicter". Moreover, the respondent acknowledged that there is no explanation for the Appeal Board confusing the issue of bias with the allegation that the selection board did not consistently mark the responses of the candidates. For these reasons, there will be no costs awarded against the applicants.

DISPOSITION

[26]            For these reasons, this application must be dismissed with no order as to costs.

                                          "Michael A. Kelen"                                                                                                              _______________________________

             JUDGE

                                                                 FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                           T-364-03

STYLE OF CAUSE:                           John Glofcheskie and Rudy Quadrini v. The Attorney General of Canada

PLACE OF HEARING:                                   Ottawa, Ontario

DATE OF HEARING:                                     January 12, 2004

REASONS FOR ORDER :              The Honourable Mr. Justice Kelen

DATED:                                                             January 14, 2004

APPEARANCES:

Mr. Dougald Brown                                             For Applicants

Ms. Marie Crowley                                              For Respondent

SOLICITORS OF RECORD:

Nelligan, O'Brien, Payne LLP                 For Applicants

Ottawa, Ontario

Mr. Morris Rosenberg                           For Respondent

Deputy Attorney General of Canada

                          FEDERAL COURT

                                                              Date: 20040114

                                                           Docket: T-364-03

BETWEEN:

JOHN GLOFCHESKIE and

RUDY QUADRINI

                                                                         Applicant

- and -

THE ATTORNEY GENERAL OF CANADA

                                                                     Respondent

REASONS FOR ORDER