Date: 20090105
Docket: T-435-08
Citation: 2009 FC 1
Ottawa, Ontario, January 5,
2009
PRESENT: THE CHIEF JUSTICE
BETWEEN:
GLENN
C. SMITH
Applicant
and
PUBLIC SERVICE COMMISSION
MONICA PRELUSKY INVESTIGATOR
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant was the
unsuccessful candidate in the practical skills assessment, the final phase of
the selection process for the position of photographer and graphic arts
technician with National Defence.
[2] He was screened out
of the competition after the final phase, apparently for not completing the PowerPoint
Photoshop assignment which was part of the practical skills assessment.
[3] The applicant
requested a Public Service Commission investigation into the results of the
selection process. On February 12, 2008, the investigator determined that the
complaint was unfounded. This proceeding is the application for judicial review
of that decision.
[4] The first aspect of
the applicant’s challenge concerns the printing of photographs, one of the
tasks in the practical skills assessment. During the test, the applicant noticed
that the printer was inadequate. He nonetheless took the additional time
required to print the photographs with the faulty printer. This was his
deliberate choice because the points assessed for the printing of the
photographs were double those to be earned on the PowerPoint test. As a result,
in his view, the applicant did not leave himself sufficient time to complete
the PowerPoint test.
[5] In assessing the
candidates’ performances, the selection board had the photographs
professionally developed after the test because of the faulty printer. In the
applicant’s opinion, this provided an advantage to the successful candidate who
spent less time on this task without completing the printing of the
photographs. Unlike the applicant, the successful candidate finished the
PowerPoint test within the allotted time.
[6] The investigator
understood the issue. In her report, she noted that: “The selection board
acknowledge the faulty printer which resulted in poor quality prints for both
candidates and had their submissions professionally developed”. She concluded
that the selection board was aware of the printing difficulties and “… had the
prints for both candidates professionally developed allowing them to proceed
with their assessment”. In the investigator’s view, the evidence demonstrated
no advantage to either candidate.
[7] The investigator also
seems to have understood the applicant’s explanation for his inability to
complete the PowerPoint task:
He said he
experienced time delays due to a slow printer, insufficient printer supplies,
and faulty or missing equipment. He said he was unable to find assistance
easily and believed that the total time lost was approximately one hour. As a
result, he said he lacked sufficient time to adequately complete the
PowerPoint/Adobe Photoshop task and chose not to do it.
[8] The investigator’s
analysis of the PowerPoint issue is set out in paragraph 19 of the report where
she concludes that the applicant did not request additional time to complete
this task:
Both the department and Mr. Smith are in agreement that he did not attempt
the PowerPoint/Adobe Photoshop task. The evidence shows that he submitted his
final tasks prior to the allotted time and he did not request additional time.
Mr. Smith gave the appearance of having completed the practical tasks to his
satisfaction and completeness.
[9] The investigator’s
analysis is supported by the hand-written notes of the departmental assistant in
attendance at the testing. The applicant acknowledges he did not explicitly
request additional time. His view is that he did so implicitly by explaining to
the departmental assistant why he was leaving early without the task having
been completed. I cannot agree.
[10] It is understandable
that the applicant may have expected more detail in the investigator’s report concerning
the linkage between the additional time he spent with the faulty printer and
his inability to complete the PowerPoint task.
[11] However, this Court must review the investigator’s decision against
the available record. The investigator’s conclusions are set out in paragraphs
21 and 22 of her report:
… while
[the applicant] had an explanation for his actions, the selection board was
nonetheless entitled to assess for the qualifications it required for the
performance in the position. The Department explained the deficits in Mr.
Smith’s performance.
… I see
clearly demonstrated that Mr. Smith was not satisfied with his assessment and
he would have treated his assessment differently. However, it must still be
shown that something was amiss to the extent that he can demonstrate that the
selection formed an opinion that was not reasonable. Yet the evidence
presented to me shows only a divergence of opinion and does not lead me to
the conclusion that the selection board acted without reason or that in any
real possibility that merit has been compromised.
[Emphasis
added]
[12] In her view, the
investigator was unable to conclude that the selection board’s determination
was unreasonable. Similarly, in applying the Dunsmuir principles
concerning the standard of review, I cannot conclude that the investigator’s
report discloses any reviewable error. The conclusions of the report cannot be
characterized as an outcome which is unreasonable or one which does not fall
within a range of acceptable outcomes: Dunsmuir v. New Brunswick, 2008 SCC 9, ¶ 47.
[13] During his oral
submissions, the applicant properly placed less emphasis on the other issues he
had raised in his written material. The investigator’s statement that the
applicant missed two appointments to inspect the facilities prior to the
practical skills test appears to be inconsistent with an exchange of emails.
However, any such misstatement of the facts, while frustrating for the
applicant, does not rise to the level of a reviewable error.
[14] Another investigator
may have reached a different conclusion. However, the record is sufficient to
support the report now under review and this Court’s intervention is not
warranted. Accordingly, this application for judicial review must be dismissed.
In the circumstances of this case, I have concluded that there should be no
award as to costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
This
application for judicial review is dismissed.
2.
There
will be no order as to costs.
“Allan
Lutfy”
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