Canada (Attorney General) v. Malwinder, 2001 FCT 814

Date: 20010723

Docket: T-1790-99

Neutral Citation: 2001 FCT 814

BETWEEN:

                   THE ATTORNEY GENERAL OF CANADA

                                                                                         Applicant

                                               - and -

                    MALWINDER GILL, RON S. KIRKWOOD

                           and THERESA OHENE-ASANTE

                                                                                    Respondents

                                  REASONS FOR ORDER

ROULEAU, J.

[1]     This is an application for judicial review of an interlocutory decision of Joanne Archibald, Chairperson of the Public Service Commission Appeal Board rendered on September 3, 1999, wherein she ordered disclosure of certain documents and materials associated with the Team Coordinator Simulation Exercise 427, a standardized test used by Revenue Canada to evaluate candidates in a closed competition for Team Leader positions.

[2]    The facts leading up to this application are as follows. The respondents were candidates in eight closed competitions held by Revenue Canada to staff various Team Leader positions classified at the PM-4 group and level. Revenue Canada used Simulation 427, a standardized test developed and owned by the Public Service Commission, to assess the merit of candidates.

[3]    The respondents were not successful in the competition and launched an appeal against the selections for appointment pursuant to section 21 of the Public Service Employment Act. In addition, they requested access to certain materials associated with Simulation 427 including:

a) the background information booklet;

b) the test booklet (exercise items);

c) the assessor manual; and,

d) the written responses of the successful candidates.

[4]    Revenue Canada agreed to provide the written answers of some of the selected candidates but refused to provide access to the assessor manual. The respondents requested an interlocutory ruling from the Appeal Board and on June 3, 1999, the Chairperson convened a hearing to consider the request. By decision dated September 3, 1999, the Chairperson ordered disclosure of the assessor manual as well as the test papers of all of the successful candidates, subject to certain controlled conditions.

[5]                The Attorney General then commenced this judicial review application on October 2, 1999. By order dated July 11, 2000, this Court ordered a stay of the interlocutory ruling pending final disposition of this matter.

[6]                After carefully considering the parties written submissions and the oral arguments presented at the hearing of this matter, I am satisfied that the judicial review application should be allowed and the decision of the Chairperson set aside.

[7]                The legislative objective of the Public Service Employment Act is to ensure that appointments made within the Public Service are based on selection according to merit. To that end, this Court has consistently recognized the importance of maintaining the confidentiality of standardized tests on the grounds that disclosure of confidential test materials to public servants and others likely to take such tests could place them in a position to acquire information concerning expected responses and to use that information in future competitions or disseminate it to others, either intentionally or unintentionally. If the Commission cannot assure an appeal board that a test has not been compromised by retaining control of that test, it cannot use that test as an assessment tool and must replace it at great cost. Confidentiality of test materials is therefore an important aspect of the merit principle. These principles were stated by Rothstein, J in Barton and Watkins v. Canada (Attorney General) (1993), 66 F.T.R. 54 at p. 56 as follows:

In the proceedings before me there was no dispute between counsel as to the importance of maintaining confidentiality of the information at issue. There could be serious prejudice to the employer if the information sought was publicly disclosed because of the expense involved in the preparation and use of standardized tests. Indeed, counsel for the applicants stated that it was important to the applicants and to the Public Service Alliance of Canada that public servants be selected on the basis of merit and the efficacy and therefore the confidentiality of such tests is an important aspect of this objective

[8]                  The term "standardized test" is defined in the Commissions's Standards for Selection and Assessment as a systematic procedure for sampling an individual's behaviour in order to evaluate job-related competencies. The development, content, administration, scoring and communication of test results are accomplished in accordance with standard procedures to ensure consistency. Government departments and the Commission may refuse to disclose documents during appeals where disclosure might prejudice the continued use of a standardized test or affect the results of such a test by giving an unfair advantage to any individual.    .

[9]                The relevant legislative provision is section 24 of the Public Service Employment Regulations. It reads as follows:

[10]            In Kaczmar v. Canada (Attorney General) (1999), 172 F.T.R. 197 and Jain et al. v. Canada (Attorney General) (1999), 179 F.T.R. 92, this Court had the opportunity to interpret Regulation 24 and concluded that it required an Appeal Board Chairperson to decide three issues before ordering access to confidential materials associated with a standardized test.

[11]            The first issue concerns the pertinence and relevance of the confidential material to which access is sought. The Chairperson must be satisfied that the material pertains to the appellant or to the successful candidate and is liable, by reason of its relevance, to be disclosed before the Appeal Board. Secondly, the Chairperson must decide whether providing access to the confidential materials might prejudice the continued use of a standardized test or affect the results of a standardized test by giving an unfair advantage to any individual. If this latter question is answered in the affirmative, the third and final issue is whether the prejudice to the future use of the test can be avoided through the imposition of conditions. If the Chairperson is not satisfied that any conditions will prevent that prejudice, he or she is not to order access to the material in question.

[12]            In the present case, it is clear that the confidential test materials at issue pertain to the respondents and to the successful candidates and are relevant to the respondents' appeal. Indeed, the Attorney General has conceded this point. As such they are liable to be disclosed within the meaning of subsection 24(1) of the Public Service Employment Regulations.

[13]            However, it is equally clear to me that having made that determination, the Chairperson then failed to determine whether disclosure of the scoring manuals and test papers of the successful candidates to the respondent might prejudice the continued use of the Simulation 427 test or affect the future results of the test by giving the respondents or others an unfair advantage. In effect, she did not make a finding as to the possibility of prejudice because she did not address the issues raised by section 24 of the Regulations. Instead, she asked herself the wrong question by attempting to balance the issues of cost and confidentiality with the appellants' right to be satisfied that the process was conducted fairly and impartially. She decided that the balance favoured the respondents' grounds for appeal without making the findings of fact required by the Regulations.

[14]            There is little doubt that if the respondents are granted access to the scoring manuals associated with Simulation 427, they will be able to familiarize themselves with the correct responses and thereby improve their performance should they take the test again. In such circumstances, they will have an unfair advantage over other candidates who have not seen the manuals. The continued use of the test therefore, will be prejudiced and the results, when the exercise is administered in the future, will be affected by the possibility of unfair advantage.

[15]            The same consequences will follow if the respondents are permitted to review the test papers of all of the successful candidates. Under the terms of the order made by the Chairperson, the respondents were given unlimited time to review each of those test papers. The competition at issue in this appeal yielded ten successful candidates. This degree of access will undoubtedly assist the respondents should they take the test again and affect the results. I agree with the applicant that under the circumstances, the test will not afford an accurate measurement of the ability of the respondents to act appropriately in response to new information.

[16]            Furthermore, providing the respondents with access to the scoring manual and the test papers of all successful candidates significantly increases the risk that the information contained therein will be communicated to others, including persons who might take the test again. Revenue Canada and the Commission will lose control of the test materials and will not be able to assure future Appeal Boards that they have not been communicated to others. In the result, it is quite possible that the tests would have to be discarded and replaced at significant costs.

[17]            Accordingly, while there is clearly a right to full disclosure provided for in subsection 24(1) of the Regulations, that right is circumscribed by the confidentiality provisions in the remaining subsections. In order to balance the two of them, it is incumbent upon an appeal board to consider the questions in precisely the way they are set out in Jain.

[18]            I am also persuaded that the Chairperson erred by imposing an unreasonable burden and standard of proof on Revenue Canada and the Commission which required that they support their concerns of prejudice to the tests and the merit principle with "sufficient data". That is a burden of proof which far exceeds the one set out in the Public Service Employment Regulations; namely, that the possibility of prejudice exists. The Commission is required to demonstrate that compromise to the test or prejudice of its results is possible if disclosure is made. If the possibility of compromise or prejudice exists, and the appellant cannot show that either can be eliminated, the appeal board should not order access to the materials. The issue which the Chairperson should have addressed is whether, if the respondents were given access to the scoring manuals and test papers, it was certain that such access would not prejudice the continued use of the test or affect future results by giving an unfair advantage. There is no requirement for the Commission or the departments to come forward with scientific evidence that disclosure of the answers will improve a candidate's results in future competitions.   

[19]            Finally, I agree with the applicant that the Appeal Board Chairperson further erred in concluding that the imposition of different levels of disclosure for appellants and their representatives could not be justified under the amended Regulations. The question which has to be asked is whether there is a need for the appellant to actually see the responses or see the assessor manual and thereby derive an advantage or is it sufficient that a representative do that job, compare the answers given by that unsuccessful candidate, look at all the answers given by the successful candidate, look at the assessor manual and do that job on behalf of the individual.

[20]            In order to protect the integrity of standardized tests and to ensure that the merit principle will be respected, an appeal board Chairperson may, in an appropriate case, order that an appellant be given access to only a portion of the materials associated with such a test. In order to provide the appellants with a full and fair opportunity to adduce evidence and to make representations concerning his or her appeal, the Chairperson may at the same time order full disclosure of the test materials to a representative who will not derive a benefit from such access. This differential disclosure is, in my view, justified by the provisions of section 24 of the Public Service Employment Regulations and does not violate the principles of fairness. As stated in Jain, supra, at pp. 97 -98:

The possibility of "differential disclosure", a phrase aptly used by the respondent's counsel, is in my view contemplated by s. 24(6).

The decision of the Court of Appeal in Hasan and Kam, supra paragraph 5, resulted from the statutory interpretation of the Regulations, as they read prior to the 1996 amendments. Under the amended Regulations, the definition of "appellant" includes the appellant's representative. This definition is consistent with the principles in Hasan and Kam. However, in my opinion, this definition must now be read in a manner consistent with: (a) the obligation to disclose information within the scope of s. 24(1); and (b) the purpose contemplated in s. 24(6), which is to provide access to confidential documents and information under conditions which would "make certain" that the use of the standardized tests would not be prejudices. The apparent failure of the Appeal Board Chairperson to canvass the possibility of granting conditional disclosure, prior to concluding that access could not be given, is a reviewable error which warrants this court's intervention.

                                                                       (emphasis added)        

[21]            Accordingly the decisions in Hasan and Kam, which stand for the proposition that both represented and unrepresented appellants are entitled to have access to the same materials as representatives, must be reconsidered in light of the amendments made to the Regulations in 1996. In particular, they must be read in a manner consistent with the purpose contemplated by subsection 24(6), which is to provide access to confidential documents and information under conditions which would make certain that the use of the standardized tests would not be prejudiced.

[22]            I am satisfied that the interests of the respondents can be fully protected by disclosure of all pertinent confidential test materials to a representative who is not employed in the public service. If an appellant is not represented, or is represented by a public servant who may derive an advantage from access to the materials, the appellant must appoint an appropriate representative to examine the materials, formulate allegations and make the necessary arguments on his behalf. This differential disclosure will ensure that the future use of standardized tests, as well as the merit principle itself, will not be compromised. At the same time, it permits the interests of appellants to be fully and fairly addressed.

[23]            As I stated at the outset, the legislative objective of the Public Service Employment Act is to ensure that appointments made within the Public Service are based on selection according to merit. It is imperative that the Regulations be interpreted and applied in a manner which is consistent with that objective. As stated in Driedger on the Construction of Statutes (R. Sullivan, 3^rd ed., Toronto: Butterworths, 1994), at p. 131:

There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking this into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just.

[24]            For all of these reasons, the application is allowed. The interlocutory decision of the Chairperson is set aside and the issue of disclosure of the scoring manuals and test papers of the successful candidates is remitted to the Appeal Board for determination in accordance with these reasons.            

     JUDGE

OTTAWA, Ontario

July 23, 2001