Date: 20000525
Docket: T-920-99
BETWEEN:
HAROLD BROOKMAN
Applicant
- and -
ATTORNEY GENERAL OF CANADA, A. CASAVANT,
C. DANYLUK and T. THOMPSON
Respondents
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act of a decision of the Public Service Commission Appeal Board ("Appeal Board") dated April 20,1999, dismissing the Applicant"s appeal that he had been wrongfully screened out of a competition in a manner contrary to the merit principle as embodied in subsection 10(1) of the Public Service Employment Act1 (the "Act").
THE FACTS
[2] On October 1,1998, the Department of Human Resources Development Canada issued a competition poster2 for the position of Team Leader (PM-03) with the Department in Edmonton, Alberta. The competition poster advised prospective applicants as follows:
| If you are interested in this competition, you must provide along with your resume a document which explains in detail how you meet the experience criteria (Please provide concrete examples). This document will be reviewed and will be used as part of the screening process. Failure to comply with this requirement will result in your application being screened out of the competition. |
[3] The Applicant submitted a covering letter, to which was attached a document entitled "Further to the Footnote", and a résumé.3
[4] One of the "Experience" requirements specified in the Statement of Qualifications4 for the position was "In delivering programs and services to the public to obtain and provide information requiring explanation and/or clarification". The Applicant was screened out of the competition on the basis that he did not meet this experience requirement for the position.5
[5] In his résumé, the Applicant provided additional information to that contained in his "Further to the Footnote" document. However, the Selection Board did not refer to the Applicant"s résumé to screen for experience, relying only on the "Further to the Footnote" document requested in the competition poster.
[6] The Applicant appealed the results of the competition to the Appeal Board pursuant to section 21 of the Act.
DECISION OF THE APPEAL BOARD
[7] One of the grounds of the Applicant"s appeal was that it was unreasonable to arbitrarily screen him out of the competition on the basis of only his "Further to the Footnote" document, particularly since the competition poster indicated that the document would be "part" of the screening process, meaning that it was not the sole basis of screening.
[8] Moreover, the Applicant alleged that such an arbitrary screening of candidates at the preliminary stage of the competition could not have resulted in selections being made in accordance with merit, particularly given the fact that the additional material was related to his qualifications for the position.
[9] With respect to this ground of appeal the Appeal Board concluded that the candidates applying for the position were not misled by the competition poster and that the Selection Board was not obliged to look further than the requested Experience Summary document in its assessment of the experience of the candidates:
| ... [i] am not persuaded that candidates were misled or that the selection board was obliged to look further than the requested document in its assessment of the experience of each candidate. The competition poster expressly provided that candidates must provide a separate document detailing "how you meet the experience criteria". Candidates know of their obligation. The reference to the document as "part of the screening process" did not relieve them of the onus to fully explain within the document the experience on which they relied to address the experience requirements, nor did it impose an obligation on the selection board to look further.6 |
[10] As a consequence, the Appeal Board found no basis for intervention and dismissed the appeal.7
ANALYSIS
| (1) Selection according to merit: failure to refer to resumé |
[11] It is well established that the merit principle embodied in subsection 10(1) of the Act essentially requires that the best persons possible be selected for appointment in Federal Public Service. Subsection 10(1) of the Act provides:
| Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interest of the Public Service.
|
Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission, et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique.
|
[12] Subsection 21(1) of the Act provides for the right to appeal against appointments or proposed appointments in the Federal Public Service:
| 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.
|
Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
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[13] The purpose of this right of appeal as a mechanism for ensuring that the merit principle, the guiding feature of the selection process, is in fact observed, is articulated by the Federal Court of Appeal in Charest v. Attorney General of Canada:8
| The holding of a competition is one means provided by the Act to attain the objective of selection by merit. However, it is important to remember that the purpose of section 21 conferring a right of appeal on candidates who were unsuccessful in a competition is also to ensure that the principle of selection by merit is observed. When an unsuccessful candidate exercises this right, he is not challenging the decision which has found him unqualified, he is, as section 21 indicates, appealing against the appointment which has been, or is about to be, made on the basis of the competition. If a right of appeal is created by section 21, this is not to protect the appellant"s rights, it is to prevent an appointment being made contrary to the merit principle. |
[14] Further, in Canada (Attorney General) v. Bates,9 Campbell J. emphasized that the function of the Appeal Board is to expose and correct errors in the application of standards and methods of assessment which have the effect of undermining the principle of selection according to merit.
[15] Evidence presented before the Appeal Board disclosed the fact that, the Selection Board, well aware that the Applicant"s résumé contained information which supplemented his "Further to Footnote" or Experience Summary, screened out the Applicant on the basis that the Experience Summary alone did not establish his qualifications for one of the four experience criteria for the position of Team Leader as set out in the Statement of Qualifications.
[16] In fact, Mr. Baril, a representative of the Department indicated that given the large task of screening candidates, and the Selection Board"s obligation to sift through "bits and pieces" of applications, the Department considered it would be more effective to ask candidates directly on the competition poster to explain their experience and provide examples on a separate document. Mr. Baril explained that this document was used to screen for experience, whereas, the résumé was used to confirm that the candidate was within the area of selection and to screen for the required education.10
[17] Consequently, a résumé, is not used to screen for experience even if it contains additional relevant evidence of a candidate"s experience. Clearly, the administrative convenience of the Selection Board in requiring potential candidates to highlight their individual work history in relation to the experience criteria for the position does not relieve it of its statutory duty to ensure that its assessment of a potential candidate"s qualifications was in accordance with merit. The effect of the Selection Board"s screening methodology was to eliminate candidates from the competition without having considered all relevant information it had requested in support of each candidate"s application.
[18] Applying a rigid and mechanical method of screening candidate"s experience may result in the exclusion of qualified candidates from competitions.11 I therefore, adopt my colleague McGillis J"s approach in Hassal to the facts of the case at bar, and hold that the Public Service Commission"s Appeal Board adopted the same rigid and formalistic approach to the assessment of potential candidate"s qualifications as did the Selection Board.
[19] The respondent argues that the cases referred to by the Applicant in support of its contention that the Selection Board"s rigid and mechanical screening methodology has a prejudicial impact on the merit principle, cannot be applied to the facts of the case at bar. I disagree.
[20] In Canada (Attorney General) v. Blashford12 the Selection Board"s imposition of an arbitrary, rigid temporal criteria on the experience requirement for a position, was held to be contrary to the merit principle due to the fact that experienced candidates were automatically screened out of the competition. In Hofland v. Canada (Attorney General),13 a successful candidate was screened in to a competition for a word processing operator position on the basis of a typing certificate which had expired (the competition poster stated that "a copy of a valid typing certificate must accompany your application"). This Court, as well as the Federal Court of Appeal, held that the typing certificate was a "formality" required to establish the minimum typing speed, and that the waiver of the certificate did not in any way offend the merit principle.
[21] I believe that these cases all reflect the notion enshrined in the selection according to merit principle of subsection 10(1) of the Act, that the Selection Board"s imposition of a "formality" to the screening process should not have the adverse effect of screening out potential successful candidates.
[22] Thus, I am of the opinion that the selection methodology employed by the Selection Board, and later adopted by the Appeal Board, is inconsistent with the merit principle.
[23] The respondent submits that the question whether the merit principle was affected by the selection process is a question of fact and consequently the standard of review is not correctness but patent unreasonableness. Although I recognize that in Krawitz v. Canada (Attorney General)14 this Court held that it is a question of fact, the recent decision in Catherine Louise Boucher and Karen McBride v. Attorney General of Canada15 seems to indicate that it is a question of law. Nevertheless, I am of the view that the Appeal Board"s determination that the Selection Board was "not obliged to look any further than the requested document" results in the exclusion of relevant evidence, undermines the merit principle and therefore, was patently unreasonable.
| (2) Screening process: misleading competition poster |
[24] In respect to this issue I am of the view that the Appeal Board did indeed make erroneous finding of fact when it held that the competition poster was not misleading such that a reasonable person would conclude that the Selection Board would consider both the Experience Summary and the résumé in screening candidates.
[25] In its reasons, the Appeal Board refers to evidence presented by Mr. Baril, the representative of the Department, that the Experience Summary constitutes the document used to screen for experience, whereas, the résumé is primarily used to confirm that a candidate is within the area of selection, and thus concludes that the competition poster is not misleading.
[26] Clearly, a candidate is not aware of this "internal administrative "decision" to ignore a résumé which is normally the principal document highlighting one"s work history.
[27] Further, the competition poster does not reflect the idea that the Experience Summary is the sole document used in assessing a potential candidates experience. In fact, the reference in the competition poster to a résumé and an Experience Summary as part of the screening process would reasonably lead one to conclude that a candidate"s experience is to be assessed in light of both documents.
[28] For the foregoing reasons, the application for judicial review is allowed, the decision of the Appeal Board Chairperson is set aside and the matter is remitted to the Appeal Board for re-determination according to these reasons. The whole with costs.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
May 25, 2000.
__________________
1 R.C.S. 1985, c. P-33.
2 Applicant "s Application Record, Volume 1, Tab 3 at page 31.
3 Applicant "s Application Record, Volume 1 at 47-50.
4 Applicant "s Application Record, Volume 1 at 32.
5 Applicant "s Application Record, Volume 1 at 41.
6 Applicant "s Application Record, Appeal Board Decision, Volume 1 at 23.
7 The Applicant submitted other grounds for appeal, however, the present application for judicial review is only in relation to the ground discussed herein.
8 [1973] F.C. 1217 (F.C.A.) at 1221.
9 [1997] 3 F.C. 132. (F.C.T.D.).
10 Applicant "s Application Record, Volume 1, Decision of Appeal Board at 19,20.
11 Hassall v. Canada (Attorney General) (4 February 1999), T-615-98 (F.C.T.D.) at para 20.
12 [1991] 2 F.C. 44 (F.C.A.).
13 (1995) 92 F.T.R. 213 (F.C.T.D.), aff"d (1996), 194 N.R. 51 (F.C.A.).
14 (1994), 86 F.T.R. 47.
15 (20 January 2000), A-699-98 (F.C.A.).
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