Date: 20000914
Docket: T-2178-99
BETWEEN:
DAVE SUDBURY
Applicant
- and -
ATTORNEY GENERAL OF CANADA
and SELENA OLSON, HEELAH WOO, CHRISTOPHER LUCK,
ERIN GILMORE, BOB LING, CLARK FRIIS, KEVIN MORGAN,
MICHAEL MCCARTHY, ELAINE BAAS, EDWARD KRIVICICH
SHAWNA STANG, AARON STAN, KAREN PARASRAM, JASON JAKUBEC,
DONNA WILSON, CRAIG KURAMOTO, TARA FARRELL,
SAMUEL MENSAH, MARK MCDONALD, LESLIE CROMAR and
MICHAEL PARASIUK
Respondents
REASONS FOR ORDER
SHARLOW J.
[1] The issue in this case is what the appropriate remedy ought to be where a member of the selection panel for a public service competition displays actual bias in favour of a successful candidate. The applicant Dave Sudbury argues that the competition should be quashed in its entirety. The Crown argues that the revocation of the selection of the successful candidate is sufficient.
[2] The competitions were governed by subsection 10(1) of the Public Service Employment Act, R.S.C. 1985, c. P-33, which reads as follows:
| 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 interests of the Public Service
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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.
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[3] "Selection according to merit" is intended to ensure that the best qualified candidates are appointed: Attorney General of Canada v. Greaves, [1982] 1 F.C. 806 (C.A.). Thus, an appeal under section 21 of the Public Service Employment Act must be aimed at establishing that selection has not been made according to merit. It was recognized in Attorney General of Canada v. Bozoian, [1983] 1 F.C. 63 (C.A.) that this may be done by establishing that the selection process "was not carried out in a manner calculated to identify the most meritorious candidate" (page 66). In the words of Campbell J. in Canada (Attorney General) v. Bates, [1997] 3 F.C. 132 (T.D.) at page 149-50:
| ... the purpose of an appeal [under section 21] is to expose and correct errors in the application of standards which have the effect of undermining the principle of selection by merit being that the best qualified and most suitable candidate be appointed. |
[4] The facts are undisputed. Two federal public service competitions were held in November 1998 for the position of Collections Officer (PM-02), one for the Burnaby-Fraser Tax Services Office and the other for the Vancouver Tax Services Office. There were five persons on the selection board, Tom Graham, Tom Rai, Vasishtha Ramsoondar, Marilyn Ritchie and David Fitzgerald.
[5] There were 83 candidates, including Mr. Sudbury and Karen Parasram. She was a niece of Mr. Ramsoondar, a member of the selection board.
[6] Before the competition began, all of the selection board members were given a list of the candidates. Ms. Parasram's name appears on that list. Each of the selection board members signed a declaration saying, among other things:
| ... Having been made aware of the list of candidates, I declare that to the best of my knowledge I am not related to any of these candidates, and that the nature of my association, if any, with these candidates is such that I can render decisions in an impartial manner. |
[7] This declaration was required by the following guidelines found at pages 7-7 and 7-8 of the Public Service Commission Staffing Policies and Guidelines Manual, under the heading "Selection Boards".
| Integrity: board members must be able to assess all candidates fairly and objectively. Accordingly, board members should not be closely related to any candidate or have any other ties that would hinder their ability to assess in an impartial manner.
Selection board members must sign a form entitled "Signed Statement of Persons Present at Screening/Rating Boards". This form is used to inform them of their responsibilities. When signed, it represents a declaration of their impartiality....
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| Intégrité : Les membres du jury doivent pouvoir évaluer tous les candidats et candidates de façon juste et objective. Aucun des membres du jury ne devrait par conséquent avoir de liens de paranté étroits avec l'un des candidats ou l'une des candidates, ni aucun lien personnel étroit qui pourrait compromettre sa capacité de mener une évaluation impartiale.
...
...Les membres du jury de sélection doivent signer le formulaire « Déclaration signée par les personnes présentes aux séances des jurys de sélection » . Ce formulaire sert à les informer de leurs responsabilités. Une fois signé, il constitue une déclaration d'impartialité...
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[8] Mr. Ramsoondar signed the required declaration even though he was related to one of the candidates. His declaration was false. None of the other selection board members were aware that it was false.
[9] The candidates were first assessed with respect to their education and experience. Of the 83 candidates, 79 were found to meet the education and experience requirements. They were invited to a written examination that tested their knowledge and writing ability. Finally, an interview was held to assess a number of abilities, including the ability to conduct interviews, to analyze, to plan and organize, to make decisions and plan alternatives, and to communicate effectively orally and in writing.
[10] The interview included a role playing exercise. In each interview, Mr. Ramsoondar played the role of a taxpayer who was attempting to thwart collection of a tax debt. His behaviour was different for each candidate. For example, with one female candidate he made a sexist remark. With Ms. Parasram, he asked a question about policy.
[11] To be successful, a candidate was required to obtain a score of 60% in the ability to communicate effectively orally and in writing, and a score of 60% for overall abilities. For each ability assessed by means of the interview, the candidates were assessed as excellent, good, satisfactory, weak or poor. Within each of those grades, the candidate was given a high, medium or low score.
[12] Each mark was the consensus of the selection board, reached after some discussion. It was undisputed that these marks were, by their nature, inexact and subjective, and that Mr. Ramsoondar was in a position to influence the marks to a degree that would not be possible to measure.
[13] Of the candidates interviewed, 21 achieved a score that met the requisite standard and they were "selected", meaning that they were placed in order of their scores on an eligibility list. Ms. Parasram was one of those selected. Mr. Sudbury was not.
[14] Selection by itself did not result in an appointment. Rather, any vacancies would be filled from the eligibility list strictly in order of rank. An appointment would be given only to those who ranked high enough to be at the top of the eligibility list if a vacancy occurred before the list expired.
[15] Mr. Sudbury appealed the selections pursuant to section 21 of the Public Service Employment Act. A number of arguments were raised but for present purposes it is necessary to refer only to one, which is that the participation of Mr. Ramsoondar on the selection board compromised the merit principle because Ms. Parasram was his niece.
[16] Before the appeal board, the evidence was that when the relationship between Mr. Ramsoondar and Ms. Parasram came to light, the other selection board members reviewed the marking and concluded that the marking was done fairly. Mr. Graham, the chair of the selection board, testified that in his opinion, Mr. Ramsoondar had not influenced the marking in favour of Ms. Parasram and that, while he could not say as a fact that there was no bias, he did not believe there was. He also said that "he did not think that an improperly motivated selection board member could have influenced the mark awarded in this way, certainly by not more than two marks." Ms. Parasram was awarded two marks more than the person ranked immediately behind her on the eligibility list.
[17] The appeal board concluded that there was an actual bias in favour of Ms. Parasram on the part of Mr. Ramsoondar. That actual bias was correctly imputed to the entire selection board pursuant to the principle referred to in Canadian Cable Television Assn. v. American College Sports Collective of Canada, Inc. (1991), 81 D.L.R. (4th) 376 (F.C.A.) at page 400.
[18] However, the appeal board set aside only the selection of Ms. Parasram. The appeal board did not consider the participation of Mr. Ramsoondar to be a basis for questioning the selection board's assessment of the qualifications of the other candidates.
[19] There is some disagreement between the parties as to the appropriate standard of review of this decision. It is argued for Mr. Sudbury that the standard is correctness, and for the Crown that the standard is reasonableness. In the circumstances of this case, I do not consider this issue to be determinative. In my opinion, the decision of the appeal board is both incorrect and unreasonable, and cannot stand.
[20] It bears repeating that the marking was subjective, and that Mr. Ramsoondar was in a position to influence the marking and ranking of candidates to a degree that would not be possible to measure. The appeal board, accepting that this was the case, concluded that it was impossible to say that the score given to Ms. Parasram was a fair assessment of her skills and abilities. That is why her selection cannot stand.
[21] However, the appeal board failed to recognize that in the face of Mr. Ramsoondar's improperly motivated participation in the selection process, it is equally impossible to conclude that any other candidate was fairly assessed. Mr. Ramsoondar's position on the selection board could have resulted in an improper assessment of any of the other candidates, or all of them.
[22] The argument for the Crown, in defending the decision of the appeal board, was that with respect to the candidates other than Ms. Parasram, there was no evidence of actual basis, and that the existence of a reasonable apprehension of bias, without more, cannot taint a competition. In support of this argument the Crown cited Canada (Attorney General) v. Henri, [1986] F.C.J. No. 153 (C.A.)(QL), Canada (Attorney General) v. Mirabelli, [1987] F.C.J. No. 142 (C.A.)(QL), and Lemelin v. Canada (Public Service Appeal Board), [1988] F.C.J. No. 230 (C.A.)(QL).
[23] I do not read any of these decisions as authority for the proposition that the existence of a reasonable apprehension of bias can never vitiate a public service competition. These decisions all appear to deal with situations where a selection board member had preconceived ideas about the position or the qualifications of one or more of the candidates. Whether such circumstances would establish a reasonable apprehension of bias on the basis of the standard established in [1978] 1 S.C.R. 369">Committee for Justice & Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 is an open question. It is arguable that the existence of preconceptions of that kind are expected and necessary, if the qualifications of candidates are to be assessed by those with appropriate experience and expertise.
[24] Whatever the legal significance of Henri, Mirabelli and Lemelin might be, they are distinguishable on their facts from this case. Here there is actual bias arising from a family relationship between a selection board member and a candidate. The nature of the competition is such that the improperly motivated influence of that selection board member is capable of affecting the results in a manner that cannot be detected or measured. Therefore, it cannot be said that the selection process was carried out in a manner that was calculated to identify the most meritorious candidate.
[25] In my respectful opinion, the Appeal board erred in failing to quash the competition in its entirety. This application for judicial review will be allowed with costs and this matter will be referred to a differently constituted appeal board for disposition in accordance with these reasons.
Karen R. Sharlow
Judge
Ottawa, Ontario
September 14, 2000
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