Berger v. Canada (Attorney General), 2004 FC 447

Date: 20040325

Docket: T-1494-02

Citation: 2004 FC 447

Ottawa, Ontario, this 25^th day of March, 2004

Present:           The Honourable Justice James Russell                                

BETWEEN:

BONNY BERGER, IAN BURCHETT, BRIAN CASEY, ROBERT CATELLIER, JENNIFER DAUBENY, ROBERT FARELL, WALTER HUGHES, FRANÇOIS LABERGE, ANDRE LeBLANC, ANNE MARTEL, PAUL ROCHE and

STUART SAVAGE

                                                                                                                                           Applicants

                                                                           and

                   THE ATTORNEY GENERAL OF CANADA and LOUIS MARCOTTE

                                                                                                                                      Respondents

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application, pursuant to s. 18.1 of the Federal Court Act, in respect of a decision ("Decision") of the Public Service Commission Appeal Board ("Appeal Board") rendered by Maurice Gohier, Appeal Board Chairperson in Board File 01-EXT-01417, dated July 9, 2002, and received by Bonny Berger, Ian Burchett, Brian Casey, Robert Catellier, Jennifer Daubeny, Robert Farell, Walter Hughes, François Laberge, Andre LeBlanc, Anne Martel, Paul Roche and Stuart Savage (collectively, the "Applicants") on August 23, 2002.

BACKGROUND

[2]                The Department of Foreign Affairs and International Trade ("Department") sent a request to the Executive Resourcing Branch of the Public Service Commission to staff the position of Director, Trade Commissioner Service Marketing ("Position"). The Position was at the EX-01 level.

[3]                A statement of qualifications and description of the position were developed. In addition, interview questions and expected answers were also prepared and a decision was made that the Personnel Psychology Centre ("PPC") would administer the EX-01 assessment and conduct the reference checks.

[4]                At the time the Public Service Commission received the request to staff the position, the Respondent, Mr. Louis Marcotte, who was a CO-03, had been acting in the Position from October 2000 to November 2001, and in November 2001 he was appointed to the Position.

[5]                A screening board, comprised of Mr. Roger Ferland (Director General, Overseas Programs, DFAIT) and Mr. Carmin Bédard (Deputy Director, Executive Programs, Public Service Commission) reviewed Mr. Marcotte's curriculum vitae and determined that he met the education and experience screening requirements of the Position.

[6]                A Selection Board, comprised of Mr. Ferland, Mr. Bedard and Mr. Marius Grinius (Director General, Operations WCO) interviewed Mr. Marcotte. Mr. Marcotte was also assessed by the PPC. Mr. Marcotte received an "Excellent" overall rating, and the Selection Board determined that he met the requirements for the Position.

[7]                On November 9, 2001, a notice of right to appeal the appointment of Mr. Marcotte to the Position was posted. The appeal period ran from November 10, 2001 to November 23, 2001. The notice set out all of the education and experience requirements identified in the statement of qualifications.

[8]                The Public Service Commission received fifteen appeals and the appellants were asked to provide copies of their curricula vitae to the Commission so that the Selection Board could review their qualifications. Ten of the fifteen appellants responded. After reviewing the curricula vitae, the Selection Board determined that only one of the ten appellants, Mr. André LeBlanc, met the education and experience requirements of the Position.

[9]                Mr. LeBlanc was interviewed and underwent an EX assessment. Two of his three references were checked by the PPC. As a result, Mr. LeBlanc received an overall rating of "Fully Satisfactory" and was found to be qualified for the Position by the Selection Board. The Selection Board found that Mr. Marcotte, who received an "Excellent" rating in comparison to Mr. Leblanc's "Fully Satisfactory" rating, was the more meritorious of the two and confirmed him for the Position.

DECISION UNDER REVIEW

[10]            Pursuant to section 21 of the Public Service Employment Act ("PSEA"), Appeal Board Chairperson Maurice Gohier heard the appeals together on April 18, 2002. Chairperson Gohier rendered a decision on July 9, 2002, in which he dismissed the appeals and made the following findings:

a)          section 10(1) of the PSEA cannot be read as giving preference to a "competition"over "other process of personnel selection";

b)          Mr. Marcotte had not been given an unfair advantage;

c)          another candidate (Mr. LeBlanc) who had never performed the duties of the Position had met the screening criteria;

d)          the Selection Board had met its obligation to assess candidates in accordance with the decision in Canada (Attorney General) v. Greaves, [1982] 1 F.C. 806 (C.A.);

e)          seeking an additional reference for Mr. LeBlanc would not have altered the results of the selection process;

f)           all qualifications were assessed; and

g)          the appointment of Mr. Marcotte was not contrary to the merit principle.

PERTINENT LEGISLATION

[11]            Section 10(1) of the Public Service Employment Act, R.S.C. 1985, c. P-33 indicates as follows:

[12]            Section 21 of the PSEA reads, in part, as follows:

ISSUES

The issues raised by the Applicants are as follows:

Did the Appeal Board err in law in ruling that the manner in which Mr. Louis Marcotte was appointed to the position of Director, Trade Commissioner Service Marketing did not offend the merit principle?

Did the Appeal Board err in law in failing to find that the manner in which the Selection Board conducted itself, following the filing of the appeals to the Public Service Commission, constituted institutional bias or was otherwise not permitted by law?

ARGUMENTS OF THE APPLICANTS                

What is the appropriate standard of review to apply to the Decision of the Appeal Board?

[1]                 The Applicants submit that when reviewing a decision of the Appeal Board, the determination as to the requirements of the merit principle is a question of law that is reviewable on the standard of correctness. The Federal Court of Appeal stated in Boucher v. Canada (Attorney General) (2000), 252 N.R. 186 (F.C.A.) at 188 as follows:

7.       ... We are not persuaded that the PSCAB is a tribunal which should be considered to have such expertise in the interpretation of the Public Service Employment Act that a high degree of deference is owed to it on this issue.

[2]                The Applicants note additionally that the PSEA contains no privative clause seeking to limit the jurisdiction of the Federal Court to review the decisions of the Appeal Board. As such, the appeal should be allowed where the decision of the Appeal Board is not considered to be appropriate and proper in the circumstances on a standard of correctness.

Did the Appeal Board err in law in ruling that the manner in which Mr. Louis Marcotte was appointed to the position of Director, Trade Commissioner Service Marketing did not offend the merit principle?

a)          The Merit Principle Defined

[3]                The foundation for appointments within the Public Service is the merit principle. The central role played by the merit principle in the selection of public servants was considered in Bambrough v. Public Service Commission Appeal Board, [1976] 2 F.C. 109 (C.A.) at para. 10:

Selection according to merit is the dominant objective and consideration of the Public Service Employment Act and the essential criterion by which the exercise of powers under the Act is to be judged. Fairness may be regarded as an implied requirement of the Act in so far as it is necessarily related to selection according to merit, but appointments should not be set aside for alleged procedural irregularities when there is no reason to believe that the selection process has not been based on merit. This Court has held that failure to comply with a provision of the statute or regulations should only be held by an appeal board to have invalidated an appointment if the board concludes that there is a real possibility that compliance with the provision might have brought about a different result.

[4]                Appointments made pursuant to s. 10(1) of the PSEA require that the best possible candidate be appointed. Proof of appointment according to merit requires a comparison of the qualifications of candidates. As such, candidates must be judged on the basis of relative merit. Relative merit must be determined using the same basis of assessment for each candidate (Greaves, supra).

[5]                The Applicants submit that, in appointing Mr. Marcotte to the Position, the Selection Board acted in a manner contrary to the requirements of the merit principle and, as such, violated s. 10(1) of the PSEA.

b)          Fatal Irregularities were Committed in the Appointment Process

[6]                The Applicants submit that the Appeal Board should apply a standard of reasonableness when reviewing a Selection Board's decision. The unreasonableness of a Selection Board's decision need not be obvious on the face of the record. If, after "some significant searching or testing," the selection is found to be unreasonable, an appeal should be allowed (Ewing v. Canada (Health) (1999), 171 F.T.R. 136 (T.D.) at 139).

[7]                Where irregularities are committed during the appointment process, a Selection Board's ability to make a selection on the basis of merit may be fundamentally undermined and, in such cases, an appeal must be allowed. Where the Selection Board commits multiple errors, it may have had no reasonable basis on which to form an opinion as to merit (Buttau v. Canada (Treasury Board) (1995), 95 F.T.R. 313 (T.D.)).

[8]                The Applicants submit that, once doubt is proven concerning whether the merit principle was respected, the onus shifts to the Selection Board to demonstrate that the irregularity had no impact. The Federal Court of Appeal has defined the standard for allowing an appeal on the basis of an irregularity in Stout v. Canada (Public Service Commission) (1983), 51 N.R. 68 (F.C.A.):

The decision under attack will therefore be set aside and the matter will be referred back to the Appeal Board in order that it be reconsidered and decided on the basis that an irregularity in a competition ... invalidates the appointments made as a result of that competition unless there be no real possibility that the result of the competition might have been different in the absence of the irregularity.

[9]                The Applicants argue that fatal irregularities were committed by the Selection Board in the appointment of Mr. Marcotte. They submit that these irregularities were numerous and fundamentally undermined the Selection Board's ability to make a decision on the basis of merit. The Applicants say that the Appeal Board erred in law in failing to find that the merit principle had been violated as a result of these irregularities.

[10]            The Applicants submit that the principal errors committed by the Selection Board are as follows:

(a)         Mr. Marcotte was given an unfair advantage in the selection process and was, in fact, pre-selected to the exclusion of other candidates;

(b)         the Selection Board failed to assess each candidate using the same type of information regarding qualifications; and

(c)         the Selection Board failed to provide equal information concerning the qualifications for the position to all candidates;

(d)         the Selection Board failed to consider all candidates prior to the appointment.

[11]            The Applicants say that these errors are so significant, both individually and cumulatively, that they contaminated the selection process and made it impossible to determine whether the best possible candidate was appointed.    Given the flaws committed by the Selection Board in its consideration of candidates, it is impossible to conclude that these irregularities did not influence the outcome.

I)          Unfair Advantage

[12]            The Applicants submit that the merit principle is violated if qualifications are established with a view to giving one candidate an unfair advantage over others in the selection process. Appeals have been consistently allowed where successful candidates are found to have benefited from an unfair advantage in the competition (Doré v. Canada, [1987] 2 S.C.R. 503).

[13]            The Applicants also submit that the manner in which selection criteria are established should be scrutinized in order to ensure that there is no evidence of pre-selection. This is especially crucial where appointments are made without competition. The Applicant submits that Ordines v. Canada (Attorney General) (1999), 156 F.T.R. 293 (T.D.) highlights the importance of establishing fair qualifications where one of the candidates has previously been assigned to a position. In that case, the established qualifications were so narrow that only the person who had held the temporary assignment could (because of his prior experience) have been found to be qualified. Qualifications must be established in a neutral fashion in order to give all candidates a fair opportunity to compete and to allow the best candidate to be chosen.

[14]            The Applicants say that the Appeal Board erred in finding that the qualifications for the position were not established in such a way as to give Mr. Marcotte an unfair advantage over the other candidates. Notably, the screening materials and statement of qualifications included the requirement that candidates have experience in "developing, establishing and implementing ... actions in response to e-service delivery requirements," wording similar to phrasing found in Mr. Marcotte's curriculum vitae when describing his role in the acting position. Appeal Board Chairperson Gohier did not find the similarities unusual, since the statement of qualifications was based on the job description. The Applicants submit that to base a statement of qualifications on the acting candidate's description of his work, using virtually identical wording as is found in his curriculum vitae, is evidence of pre-selection and is, therefore, a violation of the merit principle.

[15]            The Applicants argue that the phrase "developing, establishing and implementing ... actions" effectively eliminated all but one of the appellants from the screening process. Prior to Mr. Marcotte's acting appointment to the position, he too would have been unable to meet the experience criteria used for screening purposes. As was the case in Ordines, supra, the qualifications were established with a view to giving Mr. Marcotte an advantage over the other candidates. The fact that one other candidate (Mr. LeBlanc) was able to meet the qualifications does not overcome the fact that the qualifications were established in a manner contrary to the merit principle.

[16]            In addition, the Court in Ordines, supra, held that the merit principle is compromised , and an appeal should be allowed, where an assignment to a position is combined with a selection process that gives an advantage to the candidate who is most familiar with the job in question. Mr. Marcotte had been assigned to the position of Director, Trade Commissioner Service Marketing for thirteen months. In addition, the experience criteria in the selection process were phrased in such a way as to be virtually identical to the wording found in Mr. Marcotte's work description and curriculum vitae.

(ii) Failure to Assess Each Candidate Using the Same Basis for Assessment

[17]            In Buttau, supra, where a selection board did not have complete and accurate information respecting the qualifications of employees being considered for appointment without competition, it was found, on appeal, that no proper assessment of relative merit could have been made.

[18]            The Applicants submit that the Appeal Board, in the case at bar, erred in failing to recognize that by screening out the Applicants solely on the basis of their curricula vitae, while relying on personal knowledge of the successful candidate's experience on the job, the Selection Board could not have properly assessed the relative merit of all candidates. Relative merit requires that candidates be compared using the same basis for assessment; otherwise it is impossible to determine whether the most meritorious candidate has been selected for the position (Attorney General of Canada v. Haig Bozoian, [1983] 1 F.C. 63 (C.A.))

[19]            Additionally, the Applicants submit that, in relation to Mr. LeBlanc, the only appellant who was screened in, the Selection Board failed to call one of his references. One of Mr. Leblanc's references who was called had limited knowledge of his work, having worked with him for only a few months and having little direct contact with him. As such, the Appeal Board erred when it concluded the merit principle had been respected notwithstanding that the Selection Board made its decision with incomplete facts as to the qualifications of Mr. Leblanc.

(iii)       Failure to Provide Appellants with the Statement of Qualifications

[20]            The Applicants submit that the Selection Board committed an error when it failed to provide the appellant Mr. Catellier with a copy of the Statement of Qualifications. The Appeal Board found that this irregularity was not fatal because Mr. Catellier had been given the qualification in the appeal notice and had been allowed an opportunity to demonstrate his qualifications to the Selection Board.

[21]            The Applicants submit that, while one irregularity on its own may not be enough to change the result of an appointment and offend the merit principle, a combination or series of irregularities on the part of the Selection Board has, in this case, undermined the appointment of Mr. Marcotte to such an extent that it cannot be said that the merit principle has been complied with.

Did the Appeal Board err in law in failing to find that the manner in which the Selection Board conducted itself, following the filing of the appeals to the Public Service Commission, constituted

institutional bias or was otherwise not permitted by law?

[22]            The Applicants submit that, once it appointed Mr. Marcotte, the Selection Board was functus officio. Having fulfilled its function to appoint a candidate to the Position, the Selection Board had no further authority regarding any appeals that might be brought with respect to the appointment.

[23]            The Applicants submit that the Appeal Board Chairperson erred in law when he held that the appeal should not be allowed on the basis that the Selection Board had no authority to assess the unsuccessful candidates after the right of appeal had been triggered. Appeal Board Chairperson Gohier held that, since the proper process would be to have the matter returned to the Selection Board "and have them perform this same comparative assessment,"allowing the appeal would impose a "purely administrative and unnecessary delay of numerous months."

[24]            The Applicant says that the Selection Board undertook its own review and performed a flawed quasi-competition involving the Applicants. The process was so fundamentally flawed that it is impossible to find that the merit principle was respected in the appointment of Mr. Marcotte.

[25]            The Applicants submit that there is an inherent institutional bias in a Selection Board reviewing its decision to appoint a person to a position without competition without first having the Appeal Board review the reasonableness of the appointment.

[26]            In addition, once the Selection Board decided to review the decision, it was bound to follow a selection procedure that would result in the most meritorious candidate being appointed to the Position. The Applicants submit that the selection process in appointing Mr. Marcotte contained several errors which make it impossible to determine whether the best possible candidate was appointed.

ANALYSIS

[27]            I am in agreement with the Applicants on the legal principles relevant to this application as regards personnel selection. I am also in agreement with the Applicants that the appointment of a candidate to a position he has already occupied for some thirteen months, and by virtue of a process other than a competition, gives rise to significant pre-selection concerns and poses a severe threat to the merit principle. In such a situation there has to be a strong suspicion that the qualifications for the posting are tailor-made to ensure that the incumbent retains the position. In addition, it becomes extremely difficult to assess other candidates fairly and consistently. Any one who has occupied a position for thirteen months is in a much better position to respond to interview questions, so that the most knowledgeable candidate, as opposed to the best candidate, may well be appointed. It also has to be a concern that, where interested candidates come forward in response to an appeal rather than a competition, strong and meritorious people will be deterred from applying for a position.

[28]            On facts such as exist in the case at bar, any appeal board will have to be meticulous in its examination of the selection decision. However, on my review of the grounds raised by the Applicants, the evidence before the Appeal Board, and the Decision itself, I am satisfied that the Appeal Board did its job in a thorough way and satisfied itself on each of the issues raised.

[29]            Of particular concern to the Court in this Application were the qualification criteria for the position, the screening process, and the interview process.

[30]            The Applicants suspect, and this is perfectly understandable, that the qualification criteria were devised to suit the incumbent, Mr. Marcotte. They place particular emphasis upon the fact that the words in the notice for the Position that require experience in "developing, establishing and implementing departmental and inter-departmental priorities and actions in response to e-service delivery requirements" are similar to phrasing found in Mr. Marcotte's curriculum vitae when he describes the role he has played in his acting position.

[31]            The Appeal Board handles this issue in the following way:

Concerning the similarity between the wording in the Statement of Qualifications and that found in the Work Description of the position being staffed, I find that this is not unusual since the former was based on the latter. The fact that one of the appellants (Leblanc), who apparently had never performed the duties of the position, was screened into the selection process counters the argument that only someone having performed such duties could meet the screening criteria.

[32]            I cannot say that I would have been entirely satisfied by the explanation, but the words relied upon do not appear to the Court as a particularly unique or personal requirement, and I cannot say that the Appeal Board's conclusions on the evidence before it were unreasonable or incorrect.

[33]            At the screening stage, the Court's principal concern in this case is that personal knowledge of Mr. Marcotte, as opposed to the knowledge to be gleaned from the CV's of the other candidates would make it much easier for him to satisfy some of the more subjective criteria that would arise in the selection process. Once again, however, the Appeal Board was alive to this issue and, after examining the evidence, concluded that "the department has explained to the appellants what information it required, and the purpose for which it would be used." Also, the qualifications were "specifically included as part of the notice of "Right to Appeal," so that the failure of one candidate to actually receive a copy of the Statement of Qualifications was not a concern, and the Applicants "had a full opportunity to respond meaningfully." There was nothing to suggest that the screening process had, in fact, favoured Mr. Marcotte and, once again, the fact that Mr. Leblanc was screened into the selection process suggests that the Selection Board was able to make a decision based on merit as regards the other candidates. Notwithstanding the negative perception, I cannot say that the Appeal Board's conclusions on this issue were unreasonable or incorrect.

[34]            As regards the interview stage of the process, the issue here was to ensure that the problem identified in the Canada (Attorney General) v. Pearce, [1989] 3 F.C. 272 (C.A.) and McAuliffe v. Canada (Attorney General), [1997] F.C.J. No. 161 (T.D.), decisions did not vitiate the selection process. In Pearce, supra, the Federal Court of Appeal concluded as follows:

16. The Appeal Board did not err in law in concluding that an assignment in combination with a selection process that gave an unfair advantage to the candidate assigned to the position could compromise application of the merit principle. The conclusion that the assignment in combination with the preset questions asked by the Selection Board had that result in the present instance was a finding of fact which cannot be said to have been erroneous as contemplated by section 28 of the Federal Court Act.

[35]            So the issue for the Appeal Board in the case at bar was whether the fact of Mr. Marcotte's experience as the job incumbent, in combination with the selection process, gave him an unfair advantage that compromised the merit principle. The Appeal Board handled this in the appropriate way by examining the interview process and the actual questions that were asked of the screened-in candidates. It concluded as follows:

The questions asked by the Selection Board at the interview were not so specific in nature that only the incumbent of the position could reasonable respond to them. Rather, they appeared to be designed to have the candidates speak about themselves, their interest in the position, as well as their general knowledge of the Trade Commissioner Service, its clients and challenges. For this reason, I find that the condition outlined in Pearce has not been met in that the selection process did not give an unfair advantage to the individual acting in the position.

[36]            My review of the evidence suggests that these findings were not unreasonable or incorrect.

[37]            The Applicants raise other matters of concern but even they concede that it is the cumulative impact, rather than the individual irregularity, that is important. I am satisfied that on the principle areas of concern, and in its general conclusions, the Appeal Board decision was sound and should not be disturbed.

ORDER

THIS COURT ORDERS that:

1.          The application for judicial review is dismissed with costs to the Respondent.

              "James Russell"

__________________________________________

             JFC

                                     FEDERAL COURT

   NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:                                                   T-1494-02

STYLE OF CAUSE:                                                 Bonny Berger et al. v. The Attorney General of Canada and Louis Marcotte

PLACE OF HEARING:                                            Ottawa, Ontario

DATE OF HEARING:                                               December 9, 2003

REASONS FOR ORDER AND ORDER:                         The Honourable Mr. Justice Russell

DATED:                                                                      March 25, 2004

APPEARANCES:

Mr. James L. Shields                                                                         for the Applicant

Ms. Lynn Marchildon                                                            for the Respondent

SOLICITORS OF RECORD:

Barristers & Solicitors                                                           for the Applicant                    

68 Chamberlain Avenue

Ottawa, Ontario

K1S 1V9

Department of Justice                                                           for the Respondent

234 Wellington Street

East Tower

Ottawa, Ontario

K1A 0H8