Date: 20040429
Docket: T-2127-02
Citation: 2004 FC 623
Ottawa, Ontario this 29th day of April, 2004
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
S. SMITH, J. HUNTER, M. SUDDS, J. PANTELEIT, G. FARGNOLI, M. SIMOES, F. ZOMMERS, P. PAGLIUSO, B. PAPAKONSTANTINOU, A. CHOU, D. PERSAD, E. McNAMARA, M. PETERDY, W. HAGERTY and M. HAMLYN
Respondents
REASONS FOR ORDER AND ORDER
[1] The respondents applied for the position of Enforcement Officer with the Department of Citizenship and Immigration Canada (CIC) in Toronto. The competition poster listed six qualifications, each of which had certain sub-factors. The qualifications of "Knowledge" and "Abilities and Skills" were given pass scores of 60% by the Selection Board. No pass score was set for their sub-factors. Following the competition, thirteen successful candidates were placed on an eligibility list in order of merit.
[2] Two unsuccessful candidates brought an appeal to the Public Service Commission Appeal Board (Appeal Board) alleging that the selection process had occurred in a manner contrary to the merit principle. The Appeal Board upheld the appeal, concluding that pass scores needed to be established for the sub-factors. Pursuant to directions from the Public Service Commission (Commission), the Selection Board was reconvened and established a 50% pass score for each sub-factor while retaining the overall 60% pass mark for the "Knowledge" and "Abilities and Skills" qualifications. Following a reassessment, only six of the original thirteen successful candidates remained on the eligibility list.
[3] The original two appellants as well as the seven new unsuccessful candidates brought a second appeal to the Appeal Board alleging that the establishment of a different pass score for the qualifications and sub-factors was contrary to the merit principle. The Appeal Board allowed the second appeal on the basis that (1) in setting the 50% pass score for the sub-factors, the Selection Board had effectively changed the pass mark for the "Knowledge" and "Abilities and Skills" qualifications and (2) it was illogical for pass marks for sub-factors to be different than those for qualifications. The Attorney General now seeks judicial review of the Appeal Board's decision to grant this second appeal.
[4] The parties agree that the appropriate standard of review in this case is correctness. Therefore, the issue before the Court is whether or not the Appeal Board was correct in concluding that the Selection Board, in applying the corrective measures, violated the merit principle.
[5] Pursuant to section 21(3) of the Public Service Employment Act, R.S.C. 1985, c. P-33 (Act), the Commission may direct that corrective measures be taken in order to cure a defect in a selection process. In this case, the Commission directed the Selection Board, in accordance with the Appeal Board's first decision, to establish a pass mark for the sub-factors. The Selection Board did so, establishing a pass mark of 50% for the sub-factors while maintaining the overall 60% pass mark for the qualifications.
[6] Selection Boards have a wide discretion to decide the appropriate standards and tools necessary in order for candidates to meet certain requirements (Boucher v. Canada (Attorney General) (1998), 157 F.T.R. 79). Provided that they comply with the directions of the Commission, they also have a wide discretion in applying corrective measures. In this case, the Selection Board determined that it was necessary for two standards to coexist in order to ensure that the most meritorious candidates were placed on the eligibility list and the selection process remained transparent. I see nothing illogical in the Selection Board deciding that successful candidates must have a knowledge and skills and abilities qualification of at least 60%, the said score being the average of the two scores for the sub-factors, as long as the candidates received at least 50% for those sub-factors. I also do not see how it can be maintained that this scoring methodology altered the original terms of the competition. A candidate must still obtain an overall qualification score of 60% to succeed. The actions of the Selection Board in my view did not violate of the merit principle. This after all is the only relevant issue that the Appeal had to consider to consider.
[7] As it was open to the Selection Board to apply the corrective measures as it did, the Appeal Board erred in concluding otherwise. Accordingly, this application is granted and the decision of the Appeal Board is set aside. The decision of the Selection Board is hereby reinstated.
ORDER
THIS COURT ORDERS that the application is granted and the decision of the Appeal Board of November 19th, 2002, is set aside. The decision of the Selection Board in respect of competition 01-IMC-CC-ONT-GTEC-006 for PM-02 positions is hereby reinstated.
"K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2127-02
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA
v.
S. SMITH AND OTHERS
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: APRIL 27, 2004
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE
VON FINCKENSTEIN
DATED: APRIL 29, 2004
APPEARANCES:
Mr. J. SANDERSON GRAHAMFOR THE APPLICANT
Mrs. JACQUIE DE AGUAYOFOR THE RESPONDENTS
SOLICITORS ON THE RECORD:
MR. MORRIS ROSENBERGFOR THE APPLICANT
DEPUTY ATTORNEY GENERAL OF CANADA
MRS. JACQUIE DE AGUAYO FOR THE RESPONDENTS
Collective bargaining Branch
Suite 200
233 Gilmour Street
Ottawa, Ontario
K2P 0P1
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