Date: 20090608
Docket: T-962-07
Citation: 2009 FC 572
Ottawa, Ontario, June 8, 2009
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
CHRIS
HUGHES
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
[1] Mr. Hughes, the
applicant, was an unsuccessful candidate in an open selection process for the
position of Border Services Officer - Customs (PM-03) with the Canada Border
Services Agency (CBSA) at various locations in British Columbia and the Yukon. As a result, Mr.
Hughes filed a complaint under the former Public Service Employment Act,
R.S.C. 1985, c. P-331 (Act). Mr. Hughes alleged that the merit
principle was not upheld in the selection process. Specifically, he alleged that
the selection board’s marking was unreasonable and inconsistent in the
evaluation of one ability factor: effective interactive communication (EIC).
He also alleged that the selection board erred by failing to take into
consideration a number of Mr. Hughes’ past employment performance reviews that
he gave to the selection board at the conclusion of his interview.
[2] In response to Mr.
Hughes’ complaint, an investigation was conducted pursuant to section 7.1
of the Act. The investigator concluded that Mr. Hughes’ complaint was unfounded.
[3] On this application for
judicial review of that decision, Mr. Hughes alleges that:
1.
The
investigator erred in law by failing to order the CBSA to disclose unredacted
interview notes prepared by members of the selection board in respect of the
assessment of those successful candidates who were sampled in the investigation.
2.
The investigator
erred by failing to find that the selection board that interviewed him was
biased against him.
3.
The
investigator was biased against him, as evidenced by her hostility towards Mr. Hughes.
4.
The
investigator erred by failing to find that the selection board’s assessment of
him was unreasonable.
[4] The application for
judicial review is dismissed because Mr. Hughes has failed to establish any
breach of procedural fairness or bias on the part of the investigator, and
failed to establish any reviewable error on the part of the investigator.
Background Facts
[5] The relevant selection
process was 2005-BSF-OC-PAC-1001. Candidates who met the basic screening
requirements were invited to write the Customs Inspector test. Mr. Hughes
successfully wrote this examination. He and the other 707 successful
candidates were then invited to oral interviews.
[6] The oral interviews were
held for the purpose of assessing three ability factors. They were EIC,
Enforcement Orientation, and Professionalism. In order to be considered
further a candidate had to achieve a minimum score of 70 marks for each of
these ability factors. The interviewees started with 70 marks and then were
deducted marks or had marks added depending upon their answers to questions put
to them.
[7] Mr. Hughes was
interviewed on April 21, 2005. The two members of the selection board that
assessed him were Catherine Black and Steve Cronin. Mr. Hughes achieved the
required minimum score of 70 marks in respect of both Enforcement Orientation
and Professionalism. However, he received only 55 marks in respect of EIC. In
the result, Mr. Hughes failed to achieve the required minimum score in order to
be eligible for the position.
[8] During the course of the
investigation of his complaint Mr. Hughes received documents related to his
assessment by the selection board.
[9] The CBSA agreed to
provide Mr. Hughes with the following documents relating to the selection
process:
a.
the
eligibility list;
b.
the
EIC assessment made in respect of 10 of the successful candidates; and
c.
the
marking key for the EIC assessment.
[10] In a subsequent e-mail
the investigator confirmed the disclosure requirements and noted that “all
disclosure must conform to privacy requirements and the protection of personal
information must be a paramount consideration.”
[11] Mr. Hughes confirmed
receipt of the disclosure from the CBSA in an e-mail dated August 10, 2006
sent to the investigator. Mr. Hughes noted that the sample EIC assessments
were “completely useless.” He complained that the EIC assessment was a global
assessment so that the CBSA could not arbitrarily sever from the interview
notes information which it thought was not responsive to a question about EIC.
He requested that the investigator order the CBSA to resubmit the whole of the
selected interview notes in an unredacted form. He concluded by stating that
“[i]f this is not done I will move for a new investigator due to bias against
me and favourtism [sic] being shown to the Department.”
[12] The investigation was
conducted through a fact-finding meeting that commenced on August 29, 2006
and continued on November 2, 2006 and February 8, 2007. At such meeting the
investigator heard the evidence of Mr. Hughes, Catherine Black and Steve
Cronin, as well as the evidence of Mark Northcote (the chair of the selection
board) and Nuvin Runghen (a member of the selection board who interviewed a
number of the successful candidates).
The Decision of the Investigator
[13] By decision dated April
20, 2007, the investigator found the complaint to be unfounded.
[14] After setting out the
allegation, the procedure followed, and a summary of the evidence presented at
the fact-finding meeting, the investigator set out her analysis. She started by
citing Blagdon v. Public Service Commission et al., [1976] 1 F.C. 615 at
page 623 (C.A.) for the proposition that the only general rule applying to
selection boards is that selection is to be based on merit, and merit cannot be
reduced to a mathematical equation. Merit is often a matter of opinion.
[15] The investigator then
quoted Justice Rothstein in Scarizzi v. Marinaki (1994), 87 F.T.R. 66,
at paragraph 6, to the effect that when reviewing the decision of a selection
board, “[o]nly if a Selection Board forms an opinion that no reasonable person
could form, may an Appeal Board interfere with the decision of the Selection
Board.” As such, the investigator’s analysis focused on “an examination of the
decisions reached by the selection board to determine whether they are tainted
for example by unreasonableness, incoherence or illogic.”
[16] The investigator
determined there was no evidence to support Mr. Hughes’ allegation that he was
assessed differently from other candidates. She also found no error in the
selection board’s method of assessment of starting each candidate with 70
points and then adding or subtracting points depending on the candidate’s
performance. The documentation and evidence of the selection board members
supported the final assessment of the candidates.
[17] The investigator found
there was no evidence to suggest that the selection board knew of Mr. Hughes’
pre-existing legal issues with the department or that the chair of the
selection board had told the selection board of the legal issues as Mr. Hughes
alleged.
[18] The investigator held
the selection board explained the deficits in Mr. Hughes’ performance during
the interview and the mark he was awarded was reasonable given his performance
on the day of the interview.
[19] The investigator
disagreed with Mr. Hughes’ assertion that the selection board was obliged to
use his past performance reviews with the department as indicators that he was
qualified for the position. The investigator reasoned that it was not for her
to consider what tools she would have used if entrusted with the task of
assessment, rather, the investigator’s objective was to consider whether the
actions and conclusions of the selection board were sustainable from the
standpoint of reasonableness: Ratelle v. Canada (Public Service Commission,
Appeals Branch) (1975), 12 N.R. 85 (F.C.A.). She distinguished the
decision of this Court in Canada (Attorney General) v. Bates, [1997] 3 F.C. 132
relied upon by Mr. Hughes. The investigator found that there was nothing
outwardly unreasonable in the selection board’s decision to assess EIC through
a question and answer interview. Further, if the selection board had allowed
Mr. Hughes to introduce his past performance appraisals into his assessment,
the investigator found that it would have risked conferring an unfair advantage
upon Mr. Hughes.
[20] In conclusion, the
investigator found that the evidence did not demonstrate that Mr. Hughes was
unreasonably assessed, differently treated, or that the selection board ought
to have done more in his assessment.
The Issues
[21] I have set out at
paragraph 3 above the issues articulated by Mr. Hughes. To insure that all of
the matters raised by Mr. Hughes are properly considered, I frame the issues as
follows:
1.
What
is the applicable standard of review?
2.
Did
the investigator breach the rules of natural justice and procedural fairness by
refusing to order the CBSA to disclose unredacted board notes concerning the
assessment of the successful candidates that were sampled?
3.
Was
there a reasonable apprehension of bias on the part of the investigator against
Mr. Hughes?
4.
Did
the investigator err in finding there was no bias on the part of the selection
board towards Mr. Hughes?
5.
Did
the investigator err in finding the selection board was not obliged to consider
Mr. Hughes’ past performance reviews?
6.
Did
the investigator err in finding Mr. Hughes’ mark on EIC was reasonable?
The Standard of Review
[22] Mr. Hughes did not make
submissions about the standard of review. Counsel for the Attorney General
submitted that the reasonableness standard applied to all issues other than
those dealing with procedural fairness and natural justice.
[23] The second and third
issues set out above are concerned with natural justice and procedural fairness
and so the standard of review analysis does not apply to these issues. See Canadian
Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at
paragraph 100. It is for the Court to determine, without affording
deference to the decision-maker, whether the requirements of natural justice
and procedural fairness were met.
[24] With respect to the
remaining issues, I am required to ascertain whether the jurisprudence has
already determined in a satisfactory manner the degree of deference to be
accorded with regard to a particular category of question. Only if this
inquiry is unsuccessful is a standard of review analysis required. See: Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190, at paragraph 62.
[25] In my view the existing
jurisprudence has determined the standard of review in a satisfactory manner
notwithstanding that the jurisprudence pre-dates Dunsmuir.
[26] In Moussa v. Canada (Public Service
Commission),
[2007] F.C.J. No. 1148 at paragraph 17 (F.C.), the Court found that where
factual findings of an investigator are attacked, a standard analogous to
patent unreasonableness applies. For questions of mixed fact and law, the
standard of reasonableness applies.
[27] In Oriji v. Canada
(Attorney General) (2004), 252 F.T.R. 95 aff’d (2005), 344 N.R. 229 (C.A.),
the Court conducted a pragmatic and functional analysis and determined that the
standard of reasonableness simpliciter applies to questions such as whether
an investigator erred in finding: there had been no offer of employment; that a
priority appointment had not been made; and that an individual was
appropriately appointed on an acting basis. These are all questions of mixed
fact and law. Where questions of law could be extricated from the
investigator’s factual findings, the Court applied the correctness standard. See
paragraphs 19 and 21 to 25.
[28] Issues 4, 5, and 6,
namely, whether the investigator erred in finding there was no bias on the part
of the selection board, whether the selection board was obliged to consider the
past performance reviews of the applicant, and whether the applicant’s mark on
EIC was reasonable, are questions of mixed fact and law or questions of fact.
In my opinion, based on the case law mentioned above, these issues are to be
reviewed on a standard of reasonableness.
[29] Review on
the reasonableness standard requires an inquiry into the qualities that make a
decision reasonable. Those qualities include the process of articulating the
reasons and the outcome. On judicial review, reasonableness is largely
concerned with the existence of justification, transparency and intelligibility
within the decision-making process. It is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law. See: Dunsmuir,
paragraph 47.
Application of the Standard of Review
Did the investigator breach the rules of natural
justice and procedural fairness by refusing to order the CBSA to disclose unredacted
board notes concerning the assessment of the successful candidates that were
sampled?
[30] Mr. Hughes submits that
he was not provided with all of the relevant evidence he required in order to
argue and present his case. He specifically complains that the contents of the
entire oral interview were relevant to the assessment of an applicant's EIC,
however the interview notes provided in respect of the sampled successful
candidates were redacted. An example of this is found in Exhibit I to Mr.
Hughes’ affidavit.
[31] Mr. Hughes' complaint
was that his candidacy had been improperly assessed. The investigator confined
her investigation to whether Mr. Hughes' EIC ability had been properly assessed
by the selection board (see, for example, her e-mail of July 25, 2006 which
forms part of Exhibit H to Mr. Hughes' affidavit). Given that Mr. Hughes had
passed the two other assessment criteria this was not an unreasonable decision.
[32] Prior to, or during, the
fact-finding meeting Mr. Hughes was provided with:
·
the
marking key for EIC;
·
the
notes of Mr. Hughes’ interview that were prepared by the two members of the
selection board that interviewed him; and
·
copies
of the interview notes prepared by selection boards for a sample of 10
successful candidates, redacted on grounds of relevancy to the EIC assessment,
privacy requirements and the protection of personal information.
[33] At the fact-finding
meeting, Mr. Hughes was afforded the opportunity to cross-examine the members
of his selection board, the chair of the selection board and a member of the
selection board who interviewed other candidates. The fact-finding meeting
took place over three days.
[34] The content of the duty
of fairness is variable. What is required is a fair and open procedure
"appropriate to the decision being made and its statutory, institutional
and social context." The person affected by the decision must have an
opportunity to fully put forward his or her views and evidence, and to have
those views and evidence considered by the decision-maker. See: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 22.
[35] Mr. Hughes has failed to
establish that he was not provided with a meaningful opportunity to present his
case fully and fairly (see Baker, at paragraph 30).
[36] The marking key for EIC
is clear that the assessment of this ability factor was to be based upon the
way or manner in which each candidate communicated. For example, of relevance
were grammar, vocabulary, the ability to deliver all of the required points,
logic, confidence and authority of delivery. Ms. Black's notes of Mr. Hughes’
interview include the comments "not much enthusiasm in
tone/delivery-monotone", "irrelevant info. provided",
"difficult to understand" and "comment by candidate -
inappropriate." Mr. Cronin’s notes include the comments "Long
pauses", "very quiet voice", "hard to hear" and
"very poor EIC."
[37] Armed with those notes,
the marking key for EIC and the opportunity to cross-examine members of the
selection board, Mr. Hughes was given a meaningful opportunity to present his
case. The redactions from the interview notes of other candidates (on grounds
of relevance, privacy and personal information) have not been shown to have
precluded a meaningful opportunity to challenge the reasonableness of the
selection board’s assessment of Mr. Hughes' EIC ability.
Was there a reasonable apprehension of bias on
the part of the investigator against Mr. Hughes?
[38] In his affidavit Mr.
Hughes swears that the investigator routinely laughed and snorted at him, and
that on many occasions she shouted at him. He submits that the investigator
also showed bias by refusing to order fuller documentary disclosure, by
refusing to allow "certain relevant questioning," by refusing
"to expand the allegations to include inconsistent marking and favoritism
in the marking of Enforcement Orientation and Professionalism," and by
failing to investigate the blacklisting and other allegations he brought forth
during the investigation. Mr. Hughes also argues that his allegation of
bias has not been refuted by the Attorney General who neither filed an
affidavit sworn by the investigator nor tendered the audiotapes made during the
fact-finding meeting. Mr. Hughes asks that an adverse inference be drawn
from this failure.
[39] The principles to be
applied when an allegation of bias is made were recently summarized by this
Court in Detorakis v. Canada (Attorney General), [2009] F.C.J. No. 191.
At paragraphs 52 through 54, my colleague Justice Mosley wrote:
52 The
test for disqualifying bias or perceived bias is well established in law. The
Supreme Court of Canada has laid out the relevant considerations to take into
account when dealing with such allegations in a number of decisions, starting
with Committee for Justice and Liberty et al v. National
Energy Board et al., [1978] 1 S.C.R. 369, followed by R. v. S. (R.D.), [1997] 3 S.C.R. 484, 151 D.L.R.
(4th) 193 and Wewaykum Indian Band v. Canada, 2003
SCC 45, [2003] 2 S.C.R. 259. A reasonable apprehension of bias may be raised
where an informed person, viewing the matter realistically and practically and
having thought the matter through, would think it more likely than not that the
decision maker would unconsciously or consciously decide the issue unfairly.
53 Allegations
of bias are very serious matters. They call into question the integrity of the
decision maker. The burden of demonstrating a reasonable apprehension of bias
rests with the party arguing for disqualification. Moreover, the inquiry that
must be conducted is very fact-specific and there can be no
"shortcuts" in the reasoning that supports the allegation: Wewaykum, above at paras. 59 and 77.
54 The
presumption is that a board or tribunal is impartial. The grounds must be
substantial. A real likelihood or probability of bias must be demonstrated.
Mere suspicion is not enough. It is the informed person's perception that
counts, not uniformed speculation. Delay in raising an apprehension of bias can
be indicative that the grounds lack substance.
[40] In the present case it
is troubling that the first allegation of bias was raised by Mr. Hughes against
the investigator after she declined to order the CBSA to provide unredacted
interview notes in respect of other candidates (see Mr. Hughes' e-mail of
August 10, 2006 which forms part of Exhibit H to his affidavit).
[41] Mr. Hughes’ allegations
of conduct said to demonstrate bias are largely non-specific in nature. No
dates or specific instances are provided in respect of the allegations of
inappropriate conduct. Aside from his allegation that he was blacklisted by
the CBSA, Mr. Hughes does not state what other allegations he made that the
investigator did not pursue, nor does he indicate in any detail what relevant
questions were not permitted by the investigator.
[42] In my view, Mr. Hughes
has failed to meet the evidentiary burden upon him to demonstrate a reasonable
apprehension of bias. It was open to him to request that the tape of the fact-finding
meeting be produced but he did not, and he filed no request under Rule 317.
This failure means that no burden of persuasion shifted to the Attorney
General. Only if Mr. Hughes had produced sufficient evidence to meet his
burden of proof would there be a basis in law for the drawing of an adverse
inference against the Attorney General. See: Chippewas of Kettle &
Stony Point First Nation v. Shawkence, [2005] F.C.J. No. 1030 at paragraphs
42-44; aff’d [2006] F.C.J. No. 655.
Did the investigator err in finding there was no
bias on the part of the selection board towards Mr. Hughes?
[43] Mr. Hughes submits that:
29. Mr. Northcote sabotaged the
Applicant’s interview when he divulged confidential test results to Mr. Cronin
prior to the Applicant interview in April 2005. The prior results were from
May 2004 when Mr. Northcote interviewed the Applicant. Not only is this a
violation of the Applicant’s Privacy it violates Federal Staffing rules that
test results are not to be divulged to anyone except those that have a need to
know. Mr. Cronin had no administrative reason to know the Applicant’s prior
test results. The disclosure was made for one purpose, to prejudice the
Applicant in the current process. Mr. Northcote, the Board Chair, the de-facto
boss of Mr. Cronin, was telling Mr. Cronin that he has already deemed the
Applicant as unsuccessful. Mr. Cronin admitted the disclosure when questioned
by the Applicant. Where actual bias occurs in a Federal Staffing competition
the Courts have held the merit principle has been violated and the entire
competition must be quashed.
[44] The investigator dealt
with Mr. Hughes' allegation of bias in the following manner:
33. Mr. Cronin advised in response
to a question from Mr. Hughes that Mr. Northcote did not take part in the
assessment of Mr. Hughes.
[…]
41.
Mr. Cronin
acknowledged that he was aware that Mr. Hughes had been unsuccessful in an
earlier selection process. No person said or implied anything to him
concerning Mr. Hughes’
participation in this process to him.
[…]
43. In specific response to a
series of questions from Mr. Hughes, Mr. Northcote denied having anything to do
with his assessment or his interview. He shared no information with the
selection board concerning Mr. Hughes’ court challenges or other complaints
against the agency. He acknowledged that the board was given ice breaker
questions, but they were just a guideline to put a candidate at ease. Board
members were to take notes during the interview and mark each candidate
immediately subsequent to the interview.
[…]
50. Mr. Hughes suggested during the
hearing that the selection board must know of his legal issues with the
department or that Mr. Northcote must have told them. There was no
evidence to suggest that [t]his occurred or that this influenced his
assessment.
[45] In his affidavit Mr.
Hughes attests that Mr. Cronin admitted during the fact-finding meeting that
Mr. Northcote had told him that Mr. Hughes "had failed a previous CBSA
selection process." The investigator acknowledged, at paragraph 41 of her
reasons quoted above, that Mr. Cronin had knowledge of the fact that Mr. Hughes
had previously been unsuccessful in a selection process. This knowledge by
itself neither evidences bias nor establishes that Mr. Northcote told the
selection board about Mr. Hughes' legal issues with the CBSA.
[46] On the evidentiary
record before me I cannot conclude that the investigator erred by failing to
find bias on the part of the selection board against Mr. Hughes.
Did the investigator err in finding the
selection board was not obliged to consider Mr. Hughes’ past performance
reviews?
[47] Mr. Hughes states in his
affidavit that at the conclusion of his interview he gave the selection board
"numerous performance reviews and reference checks that showed the
Applicant was an excellent employee. One of the PR’s [sic] showed on
the job EIC as a Customs Officer over a five month period. The EIC definition
was exactly the same as the one used in the current competition."
[48] On this evidence, Mr.
Hughes argues that the selection board was obliged to address the apparent
contradiction between his proven successful track record and his performance at
the interview. Reliance is placed upon the decision of this Court in Canada (Attorney General) v.
Bates,
[1997] 3 F.C. 132 (T.D.).
[49] The investigator
concluded that the selection board was not required to consider Mr. Hughes’
performance reviews for these reasons:
52. Mr. Hughes alleged that the
selection board was obliged to use the reviews of his past performance with the
department as indicators that he was indeed a person qualified for this
position. I am unable to agree with this assertion. In Re Ratelle, Mr.
Justice Pratte held:
Assessment
of the merit of different people is often a matter of opinion and we have no
reason to prefer the opinion of the Appeal Board to that of the Selection Board
in this matter. … If a Selection Board has performed its duty in accordance
with the Act and regulations and has made an honest effort to choose the most
deserving candidate, then an Appeal Board would be exceeding its authority if
it allowed the appeal from the decision of the Selection Board on the grounds
that the letter (sic) had not availed itself of the means considered by the
Appeal Board to be most appropriate for the performance of its duty. [footnote
omitted]
53. While the Ratelle case
arose from an appeal taken under section 21 of the Act, the principles
enunciated in it are nonetheless instructive in the situation of a section 7.1
investigation. It is not for the investigator to consider what tools he or she
might have used if entrusted with the task of assessment. Rather, the
objective is to consider whether the actions and conclusions of the selection
board are sustainable from the standpoint of reasonableness.
54. The selection board chose to
assess EIC through a question and answer interview. There is nothing outwardly
unreasonable in this decision and it has not been demonstrated otherwise during
this investigation.
55. The further suggestion is that
Mr. Hughes’ past performance ought to have qualified him before the selection
board. In making this assertion, he also relies on the Bates decision
of the Federal Court, which again was an application for judicial review based
on a decision of the Appeal Board. Excerpts from the decision of Campbell J.
follow:
In
the context of this case, I find that the purpose of an appeal 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. That is, to expose and correct
errors is not to attack merit, but rather to protect it as a concept.
…
the merit principle must be cognizant of, and where necessary responsive to,
the critical reality of the history of the case and the life situation of the
individuals involved. There is no question that both the Preto and Rosenbaum
decisions reflect strong concern for how there can be such a disparity between
practical performance and a written examination. It is obvious that the
concern in both was not to grant Ms. Bates a benefit, but to have this
discrepancy rectified to ensure that she was treated fairly and equally with
all other candidates. [footnote omitted]
Mrs.
Bates held a substantive position and performed satisfactorily for five years
before being found unqualified for the position, a decision the Appeal Board
and the Federal Court found untenable. Her circumstance was at significant
variance with Mr. Hughes’. He was not an indeterminate employee and had not
accumulated the service record of Mrs. Bates. He worked discontinuously as a
Customs Inspector from 2001 to 2005 and at the time of the interview was
employed by the department.
56. Further, if the selection board
allowed Mr. Hughes to introduce his past performance appraisals into his
assessment, they would have risked conferring on him an unfair advantage which
could not be “overcome by others through the exercise of reasonable diligence.”
In the end, they elected a transparent process in which each candidate in this
open selection process was assessed using the same tools. Mr. Hughes’
performance appraisals were not included. [footnote omitted]
[50] In my view, for the
following reasons, the investigator made no reviewable error in reaching this
conclusion.
[51] The Act conferred
significant discretion upon the selection board as to how it would proceed.
Subsection 16(1) of the Act authorized the selection board, acting on behalf of
the Public Service Commission, to select candidates after "conducting such
examinations, tests, interviews and investigations as it considers
necessary."
[52] The selection board
chose to assess EIC in an oral interview. Particularly in light of the extent
that an oral interview could expose the effectiveness of interactive
communication, this was not an unreasonable decision.
[53] The investigator also
noted that in Ratelle v. Canada (Public Service Commission, Appeals Branch)
(1975), 12 N.R. 85, the Federal Court of Appeal held that it was not for an
appeal board to determine the most appropriate means of assessing ability.
Rather, the function of an appeal board was to inquire whether the selection
board made its choice in a manner that was "selection according to
merit." The role of an investigator is analogous. The investigator’s
task was to determine whether the selection board acted in such a way that its
selections were according to merit. See: Deering v. Canada (Attorney General) (1997), 136 F.T.R. 248 at
paragraph 2 (T.D.).
[54] I have noted Mr. Hughes'
reliance upon the Bates decision. There, Justice Campbell held that a
selection board was required to consider inconsistent information. However,
this decision must be read in light of the facts then before the Court.
[55] Ms. Bates had worked for
five years as a client service representative for what was then Employment and
Immigration Canada. Her work was recognized to be excellent and her
performance reviews were "completely favourable". The employer held
a closed competition in order to give contract extensions to client service
representatives whose contracts were expiring. The position Ms. Bates was
applying for was the same one that she had held and been appointed to for several
terms. The manager of Ms. Bates' unit was a member of the first selection
board that assessed Ms. Bates. Thus, the first appeal board found it to
be untenable that this manager could in effect tell Ms. Bates that she was
doing a fine job, and yet on the basis of an examination conclude that Ms.
Bates was not qualified for appointment to the position. The second appeal
decision found that the second selection board had been remiss in not
contacting the manager to obtain information about Ms. Bates' knowledge.
[56] The investigator found
the Bates decision to be distinguishable because Mr. Hughes had not
amassed the same sort of employment history. I find the Bates decision
to be distinguishable because there the appeal board had actual knowledge of
Ms. Bates' ability and because there the competition was a closed competition
between client service representatives who were seeking contract extensions.
Thus, one can infer that all of the applicants would have had their performance
assessed in the past so that such performance reviews would be available to the
selection board.
[57] In the present case,
however, there is no evidence that any member of the selection board had actual
knowledge that Mr. Hughes’ EIC skills were incongruous with his interview results.
Further, this was an open competition for an entry-level position. I agree
that accepting Mr. Hughes' past performance reviews in order to overcome
or supplement his performance at the interview would have risked conferring an
unfair advantage upon him. This would have been an advantage that would not
have been available to candidates who had not worked for CBSA so as to have
their EIC assessed in a performance review.
Did the investigator err in finding Mr. Hughes’
mark on EIC was reasonable?
[58] Mr. Hughes argues that
"the evidence shows the applicant passed the interview based on the
answers given, a comparison of other candidate’s marks that showed inconsistent
marking, the scoring key, the Internal Affairs issue and the performance reviews
submitted." In the alternative, he submits that:
79. Even
if the board was correct to mark at 55, they and [the investigator] erred in
not considering the on the job performance of EIC over a 15 month period to
reconcile this with the polar opposite result in the interview. The alleged
quiet voice and alleged lack of confidence can be explained by high stress
related to the blacklisting by CBSA and the Internal Affairs investigation.
The Applicants [sic] on the job performance showed very effective EIC
and lots of confidence.
[59] In his affidavit, Mr.
Hughes swears that:
·
He
was marked inconsistently because another candidate was given a concession in
the "Rolex scenario" that was not given to him.
·
He
was marked inconsistently because Mr. Runghen stated that he allowed candidates
to take time to formulate an answer, yet Mr. Hughes was penalized for long
pauses.
·
Other
panels of the selection board gave written copies of questions to candidates
which disadvantaged Mr. Hughes because the panel that interviewed him did not
give copies of the questions to the candidates it interviewed.
·
On
two or three occasions he became stressed when he was talking or thinking about
events related to the blacklisting by CRA and CBSA and the current ongoing
Internal Affairs investigation. At the end of the interview he told Mr. Cronin
about the internal affairs investigation and provided Mr. Cronin with the name
and phone number of the Senior Investigator.
·
The
selection board members knew that stress can affect a person's voice and
delivery.
[60] Additionally, Mr. Hughes
refers to the assessments of successful candidates in order to point to
instances of negative comments made about their performance, instances of what
Mr. Hughes submits to be deficient answers, or instances of inconsistent
marking. See, for example, paragraphs 46, 47, 61 and 62 of Mr. Hughes'
affidavit.
[61] The investigator
rejected Mr. Hughes' assertion that he was improperly assessed for the
following reasons:
46. The duty of a selection board
is succinctly set out in the case law. As stated by Pratte J. in the Blagdon
decision:
Speaking
broadly, the only general rule that governs the activity of a Selection Board
is that the selection be made on the basis of merit. … It must be realized
that the assessment of the merit of various persons, which is the function of
the Selection Board, cannot be reduced to a mathematical function: it is, in
many instances, a pure matter of opinion. [footnote omitted]
A
selection board is convened to assess and form opinions about the candidates in
a selection process.
47. What is the standard applied
when reviewing the decisions it reaches? In the Scarizzi decision,
Rothstein J. held:
Only
if a Selection Board forms an opinion that no reasonable person could form, may
an Appeal Board interfere with the decision of the Selection Board. [footnote
omitted]
Accordingly,
in the process of an investigation just as in an appeal, the case is directed
toward an examination of the decisions reached by the selection board to determine
whether they are tainted for example by unreasonableness, incoherence or
illogic. [footnote omitted]
48. Addressing the question of
whether Mr. Hughes was assessed differently from other candidates, I find no
evidence to support this argument. Mr. Hughes disagrees deeply with the
assessment of others. I have included some of them in the synopsis of the
facts above. The evidence showed that the selection board started with a score
of 70 and moved upward and downward depending on the performance of the
candidate. I find no error in this method. It accounts for the performance of
the candidate. Moreover, the documentation and memory of the selection board
members supported the final assessment of the candidates. As an example, in
the matter of question 2, neither the Board nor Mr. Hughes has suggested that
he insisted that his wife come to the phone or that the matter had some
urgency.
49. This is not a case that falls
to the principles of the Field decision where the Court found “an
absence of any cogent evidence, either oral or documentary, in the record to
establish the manner in which the merit of candidates was assessed”. In the
present case, the evidenciary record is manifest and substantial. [footnote
omitted]
[…]
51. Mr. Hughes was assessed based
on his performance on the day of his interview. While he has an explanation
for his quiet voice and personal performance, the selection board was
nonetheless entitled to assess for the qualifications it required for
performance in the position. The selection board has explained the deficits in
Mr. Hughes’ performance on that day. The mark he was awarded was
reasonable given his performance during the interview.
[62] I begin by noting that
the investigator was not allowed to substitute her opinion for that of the
selection board. She correctly recognized that she was permitted to intervene
only if the decision of the selection board constituted "an opinion that
no reasonable person could form." See: Scarizzi v. Marinaki (1994),
87 F.T.R. 66 at paragraph 6. Thus, the investigator was required to determine
whether the decision of the selection board was tainted by things such as
unreasonableness, incoherence or lack of logic.
[63] The investigator also
recognized, correctly, that the selection board’s assessment could not "be
reduced to a mathematical function: it is, in many instances, a pure matter of
opinion." See: Blagdon v. Canada (Public Service Commission, Appeals
Board), [1976] 1 F.C. 615 at page 623 (C.A.).
[64] The investigator found
no evidence that Mr. Hughes was assessed differently from other candidates. In
her view, the documentary evidence and the testimony of the selection board
members supported the final assessment.
[65] I have carefully
considered Mr. Hughes' submissions but find that they are insufficient to
establish that the investigator erred in finding the decision of the selection
board to be reasonable and coherent. For example, the fact that Mr. Runghen
stated that he allowed candidates time to formulate an answer does not vitiate
or make the decision of Mr. Hughes' interviewers unreasonable when they
noted and recorded what appear to be frequent pauses of a long duration (for
example 3 1/2 and 2 1/2 minutes).
[66] Similarly, the fact that
some panels gave candidates the questions in writing while others delivered the
questions orally is insufficient to establish unfairness or disadvantage that
vitiated the selection process. This is particularly so where the marking key
noted that EIC "includes receiving information, understanding, and
responding openly and effectively in interactions with others. (Excludes
written forms.)" Given that EIC was defined to exclude written
communication, it was not unreasonable for a panel of the selection board to
deliver the questions orally.
[67] I have also reviewed the
interview questions which are found in Exhibit G to the affidavit of Suzanne
Charbonneau. In my view, no question was so complex that it could not be
readily comprehended if delivered orally. For example, question four was as
follows:
You
are working as an SPCA inspector. A woman calls the SPCA office and claims
that a dog that lives down the road has attacked her three-year-old son. The
woman is very upset and demands that the dog be put down. Your boss tells you
to handle the investigation.
What
do you do?
[68] The interviewer’s notes
document their concerns about Mr. Hughes' EIC ability. Mr. Hughes has
confirmed that he became stressed during the interview. As he says, stress may
cause a normally well-spoken and confident individual to appear "meek and
not confident". This explanation tends to support the decision of the
selection board.
[69] On all of the evidence
Mr. Hughes has not persuaded me that the decision of the investigator was
unreasonable. I find the reasons of the investigator to be justified (in the
sense that her findings are supported by the evidence) transparent and
intelligible. The result is within a range of outcomes which are defensible in
respect of the facts and the law. As such, the investigator’s decision
concerning Mr. Hughes' EIC mark is reasonable.
Conclusion
[70] The Court is not
unsympathetic to Mr. Hughes' dogged insistence that his EIC skills are such
that he ought to have received a passing score, and the fact that he did not
evidences bias, retaliation or unreasonableness. However, people have bad days
and their performance on a particular day may not be representative of their
overall ability. Justice Nadon, while a judge of this Court, expressed this in
the following way in Chappell v. Canada (Attorney General), [1997] F.C.J. No. 606
at paragraphs 27 and 28:
27 Counsel for the Applicants however
states at paragraph 20 of the written submissions:
The selection board ignored the possibility
that the most meritorious candidate may have been ill or unable to perform well
for a number of valid reasons...It is extremely possible that the results may
simply reflect that the most meritorious candidate had a bad day...
28 I must concur with counsel and say
that the scenario described above is possible. However, the same would be true
with respect to any test or examination whenever it is administered. People
have bad days and some people do not do well on certain tests because of any
number of events in their lives. Does this mean that every test should be
administered innumerable times simply to ensure the most accurate results
possible? This would lead to never-ending testing. The fact that the test
results are ten months old is completely unconnected with the fact that the most
meritorious candidate may have had a bad day. Finally, there is no obligation
on the part of the Selection Board to create a fool-proof system for the
selection of absolutely the most meritorious candidate every time. The only
requirement is imposed by section 10 and it requires only that selection
be based on merit. Perfection on the part of the Selection Board is not
required nor is perfection in the candidate selected.
[71] There is simply an
insufficient evidentiary basis on which to impugn the decision of the
investigator.
[72] The Attorney General
seeks costs. Having regard to the non-exhaustive factors enumerated in Rule 400
of the Federal Courts Rules and the circumstances of this case, no costs
are awarded.
“Eleanor
R. Dawson”
1. While
the Act has since been repealed, the parties agree that the provisions of the
Act continue to apply to this application. I agree. See: the transitional
provisions of the current Public Service Employment Act, S.C. 2003, c.
22, ss. 12, 13 or Bill C-25, An Act to modernize employment and labour
relations in the public service and to amend the Financial Administration Act
and the Canadian Centre for Management Development Act and to make
consequential amendments to other Acts, 2nd Sess., 37th
Parl., 2003, cl. 72 (assented to 7 November 2003).
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